DISSENTING OPINION OF
ELLIOTT, J.I dissent from the above opinion and decree of the majority of the court, maintaining the plea of estoppel urged by intervenors J. M. Logan Lumber Co., Inc., A. W. Winnemann & Sons, E. L. Wilson Hardware Co., Ltd., Essex Sash & Door Co., Lock Moore & Co., Hillyer-Deutsch Edwards Inc., and Joubert Bros., against the right of Wakefield State Bank to show the error of fact, which the bank alleges to exist in the agreement of May 1, 1925, as regards the. “Re-saw outfit complete”.
The majority of the court are mistaken, when they say that the plea of estoppel, urged by the. above named intervenors is connected with the plea of “res adjudicata” urged by T. Fitzwilliams & Co., Ltd., and J. L. Lancaster and C. L. Wallace, Receivers, etc. The two pleas are not connected at all. Intervenors J. M. Logan Lumber Co., Inc., A. W. Wineman & Sons, E. L. Wilson Hardware Co., Ltd., Essex Sash & Door Co., Lock Moore & Co., Hillyer-Deutsch Edwards Inc., and Joubert Bros., were not parties to the suit in which the judgment was rendered, which is the basis of the res adjudicata urged by T. Fitzwilliams & Co., Ltd., and J. L. Lancaster and C. L. Wallace, receivers, and are not parties to the plea of res adjudicata. T. Fitzwilliams & Co., Ltd., and J. L. Lancaster and C. L. Wallace, receivers, did not seize the “re-saw outfit” involved in the plea of estoppel and are therefore not parties to the plea of estoppel, nor interested therein.
The Wakefield State Bank pleads that said agreement of May 1, 1925, is in error as to the status of the “re-saw outfit” seized by the first above named intervenors, in that part of it which reads: “It is, further agreed that the remaining property seized under said writs of fieri facias, being such property as has been detached from the realty, be sold separately and under separate appraisement, from the remainder of the property and the proceeds of the sale be held by the sheriff, awaiting the final determination of the issue as to whom said proceeds belong”.
A further provision in the agreement states: “This agreement being made for the convenience of the parties and to save costs.” That its counsel was uninformed on the morning of the sale, at the time said agreement was entered into, as to whether or not the “re-saw outfit” had been detached, from the realty and signed said agreement permitting the “re-saw outfit” to be sold separately, under representations then and. there made, that said “re-saw outfit” had been detached from the realty. That the fact is that said “re-saw outfit” has ne.ver been detached from the realty and that the agreement is in error as to the status of the “re-saw outfit”.
Intervenors allege in their plea, of estoppel “That on the first day of May, 1925, the written agreement was entered into between counsel for the plaintiff and third *681opponents in this matter in which it was agreed that certain property seized hy writs of fieri facias was detached from the realty and among said property detached is included the “re-saw outfit” complete, would he sold separately and without appraisement. That in said agreement, only certain articles are enumerated as still being attached to the realty and released from seizure, but that in said enumerated and listed articles, is not included the “re-saw outfit”, seized by opponents, as will more fully appear by reference to said agreement filed in this case as of date May 1, 1925, and made part and parcel of this plea of estoppel.
When plaintiff offered to prove that the agreement had been signed by plaintiff and intervenors under the impression and belief that the “re-saw outfit” had been detached, when in truth and fact, it had not been detached, but was still attached to the soil, intervenors objected on the ground that the proof would be contrary to the agreement. That plaintiff was es-topped by the agreement from showing contrary thereto. The court sustained the objection on the face of the papers, would not permit the proof and rendered judgment against the plaintiff, based on the agreement.
The plaintiff did not consent to the dismantlement of the saw and planing mill.
It is not alleged in the plea of estoppel, nor claimed in the objection, that the agreement of May 1, 1925, was a compromise agreement, for putting an end to a lawsuit and whereby the parties had adjusted their differences by mutual consent in the manner agreed on, which every one of them preferred to the hope of. gaining, balanced by the danger of losing, C. C., Art. 3071. The agreement does not purport to have such an end in view, but enumerates certain property seized as in fact attached and states that the balance of the property seized was in fact detached from the soil.
Referring to the remainder of the property, said to be detached it provides “that the proceeds- of said sale shall be held by the sheriff, awaiting the final determination of the issue as to whom said proceeds belong”. This stipulation evidently means that the court is to determine, after hearing evidence,'whether the remainder of the property was in fact detached from the realty or not at the time of the seizure. The plea of estoppel, if maintained, will have the effect of avoiding and rendering as naught, the agreement in that respect.The' ruling practically accepts the mere contention of the intervenors as the equivalent of allegation and proof of the essentials of an estoppel in pais, when such-essentials should be alleged and proved.
The pleader “must prove the very facts upon which the estoppel is based. In order that one should' be denied his rights or deprived of his property by reason of an equitable estoppel, it must appear that the party pleading the estoppel has been misled to his prejudice.” Hebert vs. Campagne, 144 La. 659.
The court takes the position that it is apparent on the face of the agreement that it must stand as it is written, otherwise intervenors will be prejudiced by what has been done under it. As already stated -the agreement does not appear to be a “transaction” of the kind provided for by the law, C. C., Art. 3078. Therefore considerations such as governed the sitúa-; tion in Robertson vs. Wilcox, 3 La. Ann. 93, and like cases have no bearing.
It is not necessary to set aside the entire agreement in this case, when error .is alleged to exist as to the “re-saw outfit” only and it is not claimed in the plea of estoppel, nor shown by proof, that the “re-*682saw outfit” influenced the contract and brought it about. The agreement of the parties that the proceeds of the “remaining property” shall be held by the sheriff awaiting the final determination of the issue as to whom said proceeds belong, repels that idea. I think the ruling of the court should be governed by Calhoun vs. Teal, 106 La. 47, 30 South. 288; Waters, Camden and Company vs. Briscoe, 11 La. Ann. 639; Perosine LeBlanc vs. Bertant, 16 La. Ann. 294; Watkins vs. Cawthon, 33 La. Ann. 1194; Succession of Harris, 39 La. Ann. 443, 2 South. 39; Minor vs. Hart, 52 La. Ann. 395, 27 South. 99; Succession of Drysdale, 130 La. 167, 57 South. 789.
A judicial confession of a debt may be avoided by showing error of fact, C. C., Art. 1846, No. 4. A judicial confession can be revoked, if it be proved to have been made through error of fact, C. C., Art. 2291. Error may exist as to all the circumstances and facts which relate to a contract, C. C., Art. 1823, 1824, 1827. And whatever is error, can be corrected; except when the parties are estopped by some matter of law or fact, which justifies doing so.
It is my opinion that the present plea of estoppel should be overruled. That the judgment appealed from, to the extent that same is sustained, should be set aside, the case re-opened and remanded, with instructions to hear evidence on the estoppel pleaded and whether or not the agreement was signed in error by the parties to it, as to the status of the “re-saw outfit” that the actual status of the “re-saw outfit” at the time of the seizure be ascertained at the same time, all to the end that the controversy may be terminated without unnecessary delay.
I dissent from the opinion and decree as regards the question of estoppel; but agree with the majority of the court in all other, respects.