Ox PETITION EOR A REHEARING.
Worden, J.The appellant, in this case, has filed an ■earnest petition for a rehearing in the cause, and an able brief in support thereof, and we proceed to reconsider the ■question involved.
The following paragraphs from the petition will sufficiently indicate the positions assumed by the counsel:
“ What we claim,” says the petition, “ is, 1st, that, under the facts, the whiskey in controversy was subject to levy and sale under the executions described; and, 2d, that the appellee was clearly estopped, against the execution plaintiffs, from claiming that the property so levied ■on belonged to him, and, being so estopped, such estoppel ■operates equally in favor of the appellant, who was acting for, and on behalf of, such 'creditors, in the enforcement of their lawful rights under such judgments and executions. That the appellee was estopped, as against the execution plaintiff, we shall endeavor to show from the authorities. It is a well established doctrine, that, when the true owner of property has voluntarily conferred upon another the usual evidence or indicia of ownership of such property, or an apparent authority to ■deal with it,, he is estopped from setting up his title, as against a party who has dealt in good faith with the party thus having the evidence or indicia of ownership.”
*255The appellant’s counsel cite, in support of their views, the following cases: Mitchell v. Reed, 9 Cal. 204; Anderson v. Armstead, 69 Ill. 452; White v. Morgan, 42 Iowa, 113; Drew v. Kimball, 43 N. H. 282; Horn v. Cole, 51 N. H. 287; McNeil v. The Tenth Nat'l Bank, 46 N. Y. 325; and Barnard v. Campbell, 55 N. Y. 456. It must be conceded, that some of these cases go far toward sustaining the views of counsel for the appellant.
It would be difficult to reconcile all the decisions on the subject of estoppel in pais, and we shall make no attempt to do it in this case. In some cases it is held, that an intent to deceive is a necessary element of the estoppel; while in others it would seem that such intent is not supposed to be necessary. In the case of Piper v. Gilmore, 49 Me. 149, an intent to deceive, or a design to influence the conduct of the opposite party, by a statement made by the party sought to estopped, was held to be necessary to the estoppel. This case seems to have met the approval of Judge Redeield. See note to the case, as reported in 3 Am. Law Reg. n. s. 584. This, however', is not the only particular in which the cases on the subject seem to be in some degree in conflict. We shall not examine many of the cases in detail, but proceed more directly to the question before us. We may first observe, however, that Judge Redfield, in the note above cited, said, that, il While the doctrine of estoppels of record has been advancing to greater stringency, that of estoppels in pais has been constantly relaxing of late. It was at one time supposed that if a party inquired of by a mere intruder, denied his interest in any subject-matter of the inquiry, he was forever estopped from setting up such interest, not only against the party inquiring, but as to all other parties to whom such denial had been communicated. But this broad rule is clearly not maintainable.”
We think it may be conceded, that, if the first proposition of counsel is true, the second one follows. If the property in question was subject to levy and sale under *256the executions described, the defendant, the officer having the executions in his hands for service, was doubtless justified in making the levy and sale. The question arises then, whether the plaintiffs in the executions had the right, on the facts alleged in the paragraph of answer, to levy upon and sell the property. The answer in question admits, because it does not deny, that the title to the property is in the plaintiff in the action, and it alleges matter which, it is claimed, estops him to set up that title.
It may be observed, that no fraud is imputed to the plaintiff, nor is any statement of his in reference, to the property relied upon to work the estoppel. His acts alone are relied upon. These acts consist, in brief, in placing liquor in the saloon, and allowing McCoy to retail it out in his own name, as if he were the proprietor, and sole proprietor, thereof. Until the liquor was retailed out, in the usual course of business, the title remained in the plaintiff. There is nothing in the pleading showing that any thing more than a retail business was done or contemplated.
Now, the plaintiff's in the executions were clearly in no better condition than if they had, in good faith and for value, bought the two barrels of whiskey of McCoy. If the estoppel, or supposed estoppel, would not protect them as purchasers from McCoy, it clearly would not protect them as creditors of the latter. The fact that McCoy retailed the liquor as his own gave the execution creditors no more right to give him credit on the faith that he was the owner*, than it would to have purchased the two barrels on the like faith.
We are of opinion, that the acts of the plaintiff' do not estop him to set up his title to the whiskey as againBt the execution plaintiffs, and that to hold otherwise would overturn several decisions of this court, as well as some well considered cases elsewhere. To be sure, the plaintiff vested McCoy with the possession of the property, and authorized him to retail it out as his own.
*257It was said, in the case of Barnard v. Campbell, supra “ It is not every parting with the possession of chattels or the documentary evidence of title that will enable the possessor to make a good title to one who may purchase from him. . So far as such a parting with the possession is necessary in the business of life, or authorized by the custom of trade, the owner of the goods will not be affected by a sale by the one having the custody and manual possession. * * * But the owner must go farther,- and do some act of a nature to mislead third persons as to the true position of the title.”
If the plaintiff* had authorized McCoy to sell the whiskey at wholesale, that would have ended the question; the title would have passed by a sale made by him, and there would be no need of the aid of the doctrine of estoppel.
But his authority to McCoy to retail in his own name did not necessarily carry the inference that the title to th.eliquors was in the latter. This was the purpose for which the liquors were placed in his possession, and was consistent with the plaintiff’s ownership of the property.
In Thomas v. Winters, 12 Ind. 322, two steers were sold, with the stipulation that the title was not to pass until they were paid for. The purchaser took possession of the steers, used them a while, and sold them. The steers not being paid for, it was held that the original seller might recover them from the vendee of his vendee, the title never having passed. But the original seller put his vendee in possession of the steers, and permitted him to use them as his own. The possession of the steers and the use of them were as much evidence of title as the retailing of the whiskey; yet it was not held that the original vendor -was estopped to set up his title. Similar to the case last cited is the case of Dunbar v. Rawles, 28 Ind. 225 In the ease of Bradshaw v. Warner, 54 Ind. 58, the plaintiffs had sold a safe to Wolf & Co., but the title was *258not to pass until it was paid for; and the plaintiffs had put Wolf & Co. in possession of the safe, and they used it at their place of business. Afterward Bradshaw bought the safe at a constable’s sale, on an execution against Wolf & Co., without any notice of the plaintiffs’ claim. The safe not being paid for, it was held that the plaintiffs could recover it from Bradshaw. Here, again, the plaintiffs had put their vendees in possession of the property, and. suffered them to use it at their place of business as their own; but it was not held, that the plaintiffs were estopped to set up their title. It seems to us, that the possession of the safe, and the use of it by the purchasers at their place of business, were as much evidence of title as the retailing of the whiskey.
The case of Herring v. Hoppock, 15 N. Y. 409, was the case of a conditional sale of a safe, very much like the case last cited. The plaintiff" had conditionally sold the safe, or bargained it, to Brooks &' Hopkins, but the title was not to pass until it was paid for. The shei’iff levied upon and sold the safe as the property of Brooks & Hopkins, and he was held liable to the plaintiff therefor. See, also, the case of Ballard v. Burgett, 40 N. Y. 314.
In the case of Hirschorn v. Canney, 98 Mass. 149, the substance of which is stated in Bradshaw v. Warner, supra, it seems to us there was as much ground for an estoppel as in the case before us.
We will notice one more case, and then close this opinion. In Hart v. Carpenter, 24 Conn. 427, the plaintiff" was the owner of a cow, the value of which he sought to recover in the action; and, by an instrument in writing, he agreed with one Bebee that the latter should take her into his possession, keep and fodder her, paying himself therefor by the milk she should yield; and, if at any time within four months, or at the expiration of that time, he should pay for her thirty-five dollars, she was to belong to him;' otherwise he was to return her, in good condition, to the plaintiff. Bebee took the cow under this *259agreement, but neither paid for nor returned her; on the contrary, he sold her to the defendants, who bought her in good faith, supposing that she belonged to him. It was held, in trover, that the plaintiff was entitled to recover from the ^fandant for the cow. The plaintiff suffered Bebee, his conditional vendee, to keep and feed and milk the cow, thus exercising all acts of ownership over, and deriving a benefit from, the cow, yet he was not held to he estopped to set up'his title against a bona fide purchaser from Bebee.
Original opinion filed at May Term, 1877. Opinion on petition for a rehearing filed at November Term, 1877.The petition for a rehearing is overruled.