The plaintiffs seized certain slaves as the property of .the defendant, under an execution. Robert R. Barrow filed a third opposition, claiming to be paid out of the proceeds of the slaves in preference, to the plaintiffs, by virtue of a judgment in favor of Paul Tulane against the defendant, of which he, the said Barrow, alleges himself .to be tire’owner. Barrow had, on a previous occasion, made .an opposition to a seizure made under the same judgment by the plaintiffs of the same slaves, on the ground that they belonged to him.; and this court held his title to them to be simulated, fraudulent and void. The district court decided against the claim of Barrow, and he has appealed.
The appellant, according to his statement of the case, became the owner of the Tulane judgment, on the 31st March, 1848. The first opposition, founded on his pretended title, was then .pending in the district court, and was not adjudicated upon until May following.
There have been presented several objections to the right of the appellant to avail himself of this judgment adversely to the plaintiffs ; the most material is, ¿that he is estopped by his previously asserted claim to the ownership of the ■slaves, on whom he now pretends to hold a mortgage. It is clear that, if his claim to the ownership were true, the judicial mortgage as to the slaves would be extinguished by confusion, for a man cannot hold a mortgage on his own property. Civil Code, 3374. We understand it to be a rule in'the administroiion of justice, that a man shall not be permitted to deny what he has solemnly acknowledged in a judicial proceeding, nor to shift his position at will to a contradictory one, in relation to the subject matter of litigation, in order'to prostrate and defeat the action of the law upon it. Sprigg v. Bank of Mount Pleasant, 10 Peters, 257. Jackson v. Stevens, 16 Johnson R. 110. Jackson v. Murray, Id. 201. Welland Canal Company v. Hathaway, 8 Wendell, 480. Freeman v. Savage et al. 2 Annual, 269.