On Rehearing.
Provosty, J.Further consideration of this case has convinced us that the plea of estoppel should be maintained, in so far as the mules and those of the agricultural implements that were included in the Weill vs. Pearce & Oanty seizure are concerned. These mules and implements were seized, and were adjudicated to Weill as immovables by destination on the plantation; and as such passed with the plantation *656in the sale by Weill to the Sarah Planting and Refining Company, becoming thereby subjected to the-vendor’s privilege and special mortgage reserved by Weill on the plantation to secure the price of the sale, which is the vendor’s privilege and special mortgage that the ¡bank is now foreclosing. If the opponent stood by, and without protest suffered these movables to be thus sold and mortgaged, he is estopped from contesting the mortgage, as against one who has acquired the mortgage claim in good faith and in reliance on the record. It is hornbook law that one who stands by and without protest suffers his property to be sold to an innocent purchaser, is-estopped from gáinsaying the title of the purchaser. This principle applies with even greater force to one who stands' by and without protest suffers his property to be mortgaged to secure notes which he knows are to become instruments of commerce; he is estopped from gainsaying the mortgage as against the innocent holder of the mortgage notes. Especially is he estopped if ho has not simply stood by without protest, but actually been a party to the arrangément in execution of which the mortgage has been created. Am. & Eng. Ency. (New Ed.), Vol. 11, pp. 421, 424, 427, 430, 431; 5 R. 523; 30 Ann. 1251; 45 Ann. 307, 321; 48 Ann. 18.
We think that the ojoponent not only stood by quiescent while his property was being sold and mortgaged, but actually consented to the proceeding. ITis brother, George Kimbro, was questioned, and ho answered as follows:
“Question — At the time Weill seized Sarah plantation and advertised it for sale in the spring of 1898, did you file any opposition to that sale, claiming these mules?
“Answer — No, I made no opposition. My reason for this is that w" had bought the property at private understanding before the sale, and the sale was going through only as to give the title.”
The existence of this private understanding is not disproved by other testimony in the record; on the contrary, everything goes to show that there must have been some understanding. Otherwise, the quiescence of the opponent would be inexplicable. But the bank was not a party to this private understanding, and had no knowledge of it, and is not bound by it; and having acted on the faith of the record, can hold opponent to the verity of this record, in the making of which he participated.
The estoppel applies only as to the implements that were embraced in the Weill vs. Pearce & Canty seizure; but while the testimony leads us *657to believe that not all the implements for which claim is now made were thus included, it does not enable us to determine which of these implements were and which were not included. In the interest of justice we think that the case should be remanded for further trial on this point.
It is therefore ordered, adjudged, and decreed that the judgment cf the lower court herein be set aside; and that the opposition herein be dismissed, in so far as the mules are concerned; and that the case be remanded for further trial, in so far as the agricultural implements aro concerned, with instructions to the lower court to give judgment in favor of the opponent for those of the implements that were not included in the sale in the matter of Weill vs. Pearce & Canty, and in favor of the Hibernia Bank for those of the implements that were thus included; and that the opponent pay the costs of this appeal; and that the costs of the lower court be paid out of the proceeds of the sale or by the opponent accordingly as the opponent shall succeed or not in his opposition, in part or in whole.
Blanchard, J., dissents, holding to the view presented in the original opinion of the court.