dissenting. — I think the foregoing opinion misconceives the true attitude of the parties, and the law-applicable to them.
If plaintiff was not entitled to the possession of this property his action failed. And for this purpose it is immaterial whether the person so entitled was the defendant or a third person. (Marienthal v. Shafer, 6 Iowa, 223.) Plaintiff recovers upon the strength of his own right. If such right of possession is in a third person, it may be so shown -without making him a party. The language of the statute is that such person may be made a party, and not that it is necessary to entitle the defendant to such defense. The statute, as to the defense, does not change the common law. The body and substance of this action lies still in the common law. (Chadwick v. Miller, 6 Id. 34.)
The defense being available, then, the doctrine of estoppel, in my opinion, has no application. If it has, then a factor, by doing that which he has no power to do, may estop his principal. Will this be claimed ? Certainly not; and yet this is, in effect, the doctrine of the opinion of a majority of this court. In the case cited from 20 Eng. C. L. 153, the question was, whether the defendant was bound by admissions, made under the circumstances disclosed, and very different in their character from the one before us, as *12will be seen by a reference without recapitulating them. Certainly no case can be found holding the doctrine that if A sells B’s property when he has no power, B is estopped . thereby from claiming it. As between A and his vendee A may be estopped, but not B. The rule that a factor cannot pledge the goods of his principal has always been strictly adhered to.
In replevin brought to recover the property by the pledgee, can it not be shown that he had no power to make the contract ? This will not be denied, certainly. It is a question of power to do the particular act, and this wanting, no rights arise to the pledgee under it. And the rule applies with much more force, where the sale is absolute.
If Mills had been made a party defendant, would it be claimed that he could not show a want of power in John Reed to execute the receipt ? And if he could, and if John Reed may defeat plaintiff’s action by showing the right of possession to be in a third person, upon what principle is it that he is estopped from showing what Mills might have shown ? As to such a question, John Reed stands in the place of Mills.
I do not stop to discuss the question whether the instrument offered in evidence is of such a character as to estop the present defendant from showing the true nature of the transaction, independently of the rights of third persons. The views above suggested are decisive of the case, as I view it, and I need not discuss others. The judgment should be affirmed.