On the Merits.
The Hibernia National Bank, holding notes and mortgages of the Sarah Planting and Refining Company for a large amount of money, *653seized under executory process the Sarah, plantation, with its equipment, and advertised the same to be sold by the sheriff.
Included in this seizure and advertisement were wagons, harness, implements, etc., and nineteen mules.
John E. Kimbro intervened, by third opposition, alleging that the Sarah Company had purchased from him the wagons, harness, implements, mules, etc., on the said plantation for the price and sum of $2603.50 and owed him therefor that sum, to secure payment of which he had the vendor’s privilege. He asked judgment for the .amount due him with recognition of his privilege.
He further alleged that the movable property upon which his privilege rested had been seized by the sheriff in the foreclosure of the mortgage held by the Hibernia Nati°nal Rank; that his privilege primed the bank’s mortgage upon the proceeds of the movables seized; and that to render the rights he claimed effective and available, it was necessary there be a separate appraisement and separate sale of the movables, apart from the land. He prayed accordingly, and an order issued for the separate appraisement and sale.
He also prayed to be paid by preference out of the proceeds of the movables.
The mules were appraised at $1900 and the other property embraced in the intervention at $703.50.
The defense against the demand is that the movables in question had been attached to the Sarah plantation for some time as part of its equipment and were so attached when the property was sold by Jos. Weil (the bank’s transferror of the mortgage notes) to the Sarah Planting and Refining Company. It is averred that the same were included in the sale made by Weil to the Company, and in the mortgage retained to secure -the purchase price — all to the knowledge of the third opponent. Furthermore, that they were upon the plantation, and sold as part thereof, at the antecedent sheriff’s sale at which Weil had purchased — also to the knowledge of opponent.
It is, therefore, claimed that the latter is estopped to now set up ownership in himself.
There was judgment below in favor of the third opponent, in accordance with the prayer of his petition, and from this judgment the Bank appeals.
The. conclusion we have reached is, this judgment is correct.
The issue is one of fact. We think the evidence adduced establishes *654that George B. Kimbro, the brother of the third opponent, purchased the nineteen mules from the Marx Levy heirs as early as February 1897; that he gave therefor his promissory note, dated February first of that year; that this note passed into the hands of Jos. Weil, who bought the Sarah plantation (then known as “Eldorado”) from the Levy heirs; that from Weil it passed to Pearce & Canty, when he sold the plantation to the latter in April 1897; and that the note was afterwards taken up by Kimbro. It may not have been taken up by payment in cash, but was taken up by means of the holders of the note becoming indebted to Kimbro and in compensation and satisfaction of the debt surrendering the note to him.
At the time the Levy heirs sold the mules to Kimbro, they also leased him the' plantation for a term of three years This lease was duly recorded in the conveyance records of' the Parish. Kimbro went into possession, employing John E. Kimbro as manager and using the mules in the cultivation of the plantation.
When, therefore,Weil purchased the place from the Levy heirs, Kimbro was in possession under his recorded lease. So, too, he was in possession under his lease, and continued to be, when and after the place was sold by Weil to Pearce & Oanty on terms of credit with mortgage retained.
The latter went into insolvency and the plantation was seized under Weil’s mortgage and vendor’s privilege. At the sale which followed, Weil purchased and immediately sold the property at private sale to the Sarah Planting and Refining Company, which was organized at that time. This sale was on credit, and the notes thereof subsequently passed into the hands of the plaintiff Bank.
George Kimbro having thus acquired the ownership of the mules and the same being in his possession, transferred the same to his brother Jno. E. Kimbro, third opponent herein. This sale and transfer was in settlement of an indebtedness due by George B. Kimbro to Eis brother on account of services rendered by the latter as manager for the former of the plantation. He was unable to pay him in money “on account of short crops and poor prices,” and that is why the mules were given to him in payment. A pre-existing debt due by a transferror of property to his transferree is sufficient to support the transfer. 51 La. Ann. 222.
The mules were at the time in possession of Jno. E. Kimbro as manager for his brother. Thereafter they remained in his posession as *655owner until he sold them to the Sarah Planting and Refining Company in February 1899.
All the parties connected with the Sarah Company recognized the Kimbros as owners of the mules and other movable property claimed in the third opposition. Weil, too, did so, for in February 1898 we find the same included in the terms of an act of pledge and pawn which he took from George B. Kimbro for and on account of advances made and to be made to enable the latter to make a crop in that year.
Jno. E. Kimbro testifies he bought the mules from his brother in the fall of 1897. The brother places the time at a later period. We do not think the discrepancy sufficient to materially weaken the case of the third opponent. In the negotiation with his brother which resulted in the transfer of the mules, the latter were taken at the price of $1300. Five hundred dollars of this was to be considered as cash — that much being due him as balance on account of his services as manager for 1897. The remainder, he testifies, “was to be paid the following year, either in cash, or by my services.”
The other movable property mentioned in the third opposition originally belonged to Jno. E. Kimbro. He had not acquired it from his brother, but from other parties, 'and the same remained his and in his possession until he sold it to the Sarah Company.
The plea of estoppel does not apply against the third opponent. Fie was no party to any of the acts of conveyance, mortgage or pledge upon which estoppel is predicated. Their .recitals cannot be held to affect his rights. Nor do we think there is any impediment to his claim in the nature of estoppel by conduct. .Such an estoppel arises when the party pleading it has been misled by the action, or the omission to act, of the other party at the proper time, and was thereby himself deceived into doing something to his detriment which otherwise he would not have done.
Judgment affirmed.