(dissenting) : The foregoing is the opinion of the majority of the court. It does not ex* press my views. I agree with neither the conclusion reached nor the law as declared, save in the first point of the syllabus and corresponding portion of the opinion. To my mind, the case was largely tried upon false issues. The important question, the ultimate rights of the parties, was entirely lost sight of and not considered.
Plaintiff held a chattel mortgage admittedly valid as between it and Hale, the maker. This mortgage was of record. It was not contended, and could not be successfully urged, that this mortgage was void for insufficient description, or other cause. The only possible controversy, therefore, which could arise between defendants, as purchasers of the mortgaged property, and plaintiff, was, Did this mortgage, of the existence of which defendants had both actual and constructive notice, inform defendants of the fact that plaintiff' had a mortgage on the cattle they were purchasing ? That is, could defendants, from the description of the property in the mortgage, aided by inquiry which the mortgage suggested, have identified the property? If so, defendants knew the cattle were mortgaged when they purchased and cannot now be heard to assert to the contrary. ( Waggoner v. Oursler, 54 Kan. 141, 37 *586Pac. 973; Schmidt v. Bender, 39 id. 437, 18 Pac. 491; Crisfield v. Neal, 36 id. 278, 13 Pac. 272.)
What was the evidence? The uncontroverted facts are these : The cattle described in the mortgage were located on the Race farm aboht' twenty miles southwest from Madison, in Greenwood' cotmty, in the possession óf Hale. The cattle purchased by defendants were, when purchased, in the possession of Hale, on the Race farm, as located in the mortgage. The cattle'described in the mortgage were 249 head of one- and two-year-old steer cattle owned by Hale. ' The defendants purchased from Hale -201 head of one- and two-year-old‘ steer cattle.' ' Can it be c'ontended,, in the face of these admitted facts, that 'defendants did n'ot know, or could not, by inquiry based upon known facts, have ascertained, that-the cattle they purchased were encumbered by plaintiff’s mortgage? This court', in Waggoner v. Oursler, supra, held:
“A description in a'chattel mortgage'which gives the age, 'sex, ownership and location of a number of cattle is held to be sufficient, under the circumstances, to-enable third parties-to identify those intended to be mortgaged with reasonable certainty, and to charge them with notice of the lien.”
Again, the mortgage distinctly stipulates the -249 head of steer-cattle,-one- and two-year-old past, to be all the property of that description owned or controlled by the mortgagor then on said premises. The only controversy attempted to be raised -by defendant was that the cattle were-not-“native” cattle, as that term is employed among cattlemen, but were “Western” cattle; also, that a portion of-the cattle were not branded as specified in the mortgage. • Admitting, this to be.true, yet it is clear that defendants must have known;.and did know, from the description given in *587the mortgage, that the cattle they purchased were the cattle mortgaged to plaintiff.
The second defense relied on is based upon the doctrine of equitable estoppel or estoppel in pais. This defense concedes the mortgage of plaintiff to have been a valid lien on all of the cattle purchased. The theory of defendants is this, that, knowing of the mortgage of plaintiff, and the extent of its mortgage interest, they informed it of the purchase and requested a release of its mortgage interest'on the cattle purchased, paid the sum of $1200, and obtained the release in question. Wherefore, it is contended that plaintiff is'now estopped to assert a lien on the remainder of the cattle described in its mortgage. It is the settled law of this and other jurisdictions that the release in question cannot be enlarged, contradicted or varied by parol testimony. This is declared in the opinion. See, also, Felix v. Railway Co. 60 Kan. 467, 57 Pac. 128; Lehigh Val. Transp. Co. v. Miller et al., 8 C. C. A. 188, 59 Fed. 483; Jones v. Jones, 46 Iowa, 466; D. & R. G. R. Co. v. Sullivan, 21 Colo. 302, 41 Pac. 501; Van Bokkelen v. Taylor et al., 62 N. Y. 105; Brady et al. v. Read, 94 N. Y. 631; Hitt &c. v. Holliday &c., 2 Littell (Ky.) 333.
It being clear, from the express terms of the. release, that only a portion of the cattle purchased by defendants were released from the lien of the mortgage, I am at a loss to understand how the doctrine of estoppel may arise thereon. If through inadvertence or mistake the entire mortgage lien of plaintiff had been released, and thereafter defendants had completed their purchase from Hale by payment of the purchase-price without knowledge of the mistake, relying on the written release, the doctrine of estoppel might well be urged. Or, if the entire purchase-price *588of the cattle had been paid to plaintiff upon an agreement that a full release of its mortgage should be furnished, and plaintiff had fraudulently released only a portion of its lien, it might well be held estopped; but in this case, as a result of negotiations, plaintiff received a small sum of money in comparison with the entire- mortgage debt, and executed- the partial release' in (question, definite in its terms, and yet it is held estopped from making further claim- under its mortgage ; not from the terms of the-release executed-, for that is partial only; not because defendants paid over the purchase-money, relying on a complete release of plaintiff's mortgage, for they paid Hale nothing until after receiving the partial release; not on account of the fraudulent conduct of plaintiff, for there was no fraud of plaintiff either pleaded or proved. Upon what possible theory of law or what imaginable conduct of plaintiff may the doctrine of estoppel then be predicated ?
Mr. Bigelow, in his work on Estoppel, fifth edition, page 569, prescribes the essential elements of estoppel in pais, or equitable estoppel, as relied on in this case, as follows :
“To constitute this particular estoppel by conduct, . . all the following elements must be present:
“1. There must have been a false representation or a concealment of material facts.
“2. The representation must have been made with knowledge, actual or virtual, of the facts.
“3. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter.
“4.' It must have been made with the intention, actual or virtual, that the other party should act upon it.
“5. The other party must have been induced to act upon'it.”
*589This statement of the essential elements of estoppel has been adopted and approved by the courts in all jurisdictions, and was expressly approved by this court in Kraft v. Baxter, 38 Kan. 351, 16 Pac. 789. Applying this test to the facts presented by the record in this case, what conclusion must b,e reached? Is there a single essential element of estoppel presented here? It is not even contended, that plaintiff made any representations concerning its mortgage, lien except those expressed in the release and mortgage. Its mortgage was of record; the release speaks for itself. Hence, plaintiff represented nothing found to be untrue — concealed nothing from defendants. The essential elements 1, 2 and 4 are, therefore, lacking in this case. The defendants had both actual and constructive notice of plaintiff’s mortgage.- They had the release in their possession before parting with any part of the purchase-money to Hale, and, after its reception and knowledge of its contents, paid over the purchase-price and remained quiet for almost two years thereafter, and until this action was brought. Hence, the remaining essential elements of. estoppel are wanting in this case. This is a case where not only one of the essential elements of equitable estoppel is wanting, but there is present not a single element of estoppel.
But it is contended that defendants requested a release of all of plaintiff’s interest in the cattle they had purchased, and, therefore, the release received, while partial in terms, operates as a release of the whole, I fully confess my inability to understand this argument. It is not contended that the entire mortgage debt, or any considerable portion of it, was paid or offered to be paid to plaintiff. Defendants received, read, understood, retained and acted upon this par*590tial release, and cannot now be heard to say that it is not what they bargained for- To my mind it is entirely too'plain for argument that the very purpose of the oral testimony introduced by the defendants was to enlarge the terms of this written release to make the instrument, partial in terms, entire in effect; to make it speak that which it does not, and will not, say- This evidence, upon all well-settled rules of practice, was erroneous and should have been excluded.
For all these reasons the judgment should be reversed.
I am authorized to say that Mr. Justice Smith and Mr. Justice Burch join me in this dissent.