delivered the following dissenting opinion:
Not being able to concur with the majority of the court, I present very briefly, as required by law, the reasons therefor. This is purely a controversy between the parties, to the property in the office, and as incident thereto, its emoluments. The proceeding instituted by Turnipseed had for its objeet the recovery of *450the office held and enjoyed by Hudson. Principles may have fit application to this litigation, which would have no place if the state were proceeding to eject the incumbent as not having a legal right to the office.
The question is, whether Turnipseed can recover the office, and not whether Hudson is de jure invested with it. It may be true (as is conceded on all hands), that Hudson has no better right than a de facto incumbent, having entered under claim and color of right; and it may be also true that the relator is not as against him, entitled to the office.
The view that I take of the case is, that Turnipseed abandoned the office and gave way to its occupancy by Hudson, who came in not as a usurper, but under color of right. No set form of resignation is necessary. If Turnipseed voluntarily retired from-the office, and Hudson was admitted to it under the forms of lawr though not rightfully inducted, then Hudson is strictly de facta clerk, and can only be ousted by the judgment of the court at the suit of the state.
It is a well established fact, that from and after the first of January, 1874, Turnipseed altogether ceased to discharge the functions and duties of the office; that all the books, papers, records, the seal and other insignia of office, were laid down by him and formally taken up and used by Hudson.
Looking to the circumstances under which Turnipseed divested himself of the office, and Hudson entered upon’it, and it is plain to my mind that the respective acts of the parties meant a vacation of the office on the one side, and its acceptance and occupancy on the other.
These are the prominent facts. It was doubtful whether a legal election for the particular office could be held in November, 1873. Both parties desired to become candidates for the office,, and agreed with each other to submit their respective claims to the nomination to a primary meeting, whichever received the nomination the other to give him his support and vote. Hudson got the *451nomination, became the candidate, and was elected, Turnipseed voting for him. On the first of January Hudson executed a bond, which was approved by the board of supervisors, took the oath prescribed by law, and actually entered into full possession of the office, with all its records and paraphernalia, with the acquiescence and consent of Turnipseed, and continued without let or dispute, to perform its functions, for about four months, when the relator made his claim. The conduct of Turnipseed, throughout, was voluntary, without duress or constraint. He retired from the office, under a mistake of law, or rather with the doubt still unsolved, under which he seems to have acted, but that does not detract from the freedom of his conduct, nor destroy the legal effect of a most orderly and deliberate abandonment or resignation of the office.
Hudson, upon his retirement, entered, under color of right, his certificate of election, his bond approved and oath of office. •There is not an element of usurpation, but a fulfillment of every requisite laid down in the books to constitute him a de facto clerk.
Turnipseed agreed with Hudsob that if the latter should receive the nomination, and be chosen at the November election, in which he would assist with his vote, then he, Turnipseed, would retire, and let Hudson take the office. Such an agreement, in a suit for its enforcement, or for its breach, would have amounted to nothing ; nor would Hudson’s election have conferred a right, if Turnipseed had not in fact actually vacated the office, and Hudson had not become invested with it, under color of right as before stated.
The legal effect of the acts of Turnipseed was a voluntary abandonment or resignation. Before it actually occurred, he came under an agreement, to do so contingently. The contingency happened — and thereupon, in the most open and notorious manner, he retired. He contributed to place Hudson in office. He delivered to him the property and seal. The board of supervisors approved his bond, and swore him in. The state has ac*452quiesced, by sufferance, and thereby ratifies and affirms his acts as valid. Turnipseed, in the most solemn form, has recognized Hudson as clerk; the county authorities; the state, by her acquiescence and sufferance ; the public, who have interest in his acts ; all, have recognized him. Nor has his right been challenged, by any person, except the relator, and that not until several months after unquestioned possession. It is too late now to repent, and reclaim what he had voluntarily given up.
This is not the case of a casual or temporary refusal to perform the duties of an office, but rather of a deliberate and public abandonment of it — which, in law, is a resignation. If Turnipseed has ceased to be the clerk, he has no right to contest the claims of the defendant, Hudson. In support of these views, I refer to Alexander v. Walter, 8 Gill, 253; Regina v. Green, cited in Bigelow on Estoppel, 565; Colton v. Beardsley, 38 Barb., 41, 51; Church v. City of Milwaukee, 31 Wis., 518, 519.
The authorities show, that the doctrines of estoppel, in proper circumstances, apply to the claimant of an office. Does not the principle and the reason of it, Speaking through the facts of this case, preclude the relator from asserting a right to the office? A party is sometimes, not permitted to deny that which he has solemnly and deliberately adopted and received as true. Herman on Estoppel, § 9, p. 11.
It has been well said by Mr. Bigelow on Estoppel, 481: “ At the present day, estoppel is never employed to exclude the truth ; its whole effect is to preclude parties and those in privity with them from unsettling a matter which they "have in solemn form admitted or adopted.”
The circumstances of this case meet the several requisites of an estoppel in pais, defined by Mr. Bigelow, p. 600 :
First. Turnipseed, by his agreement with Hudson, his participation in the election and voting for him, his withdrawal from the office, so that Hudson might qualify and take possession, has done acts which influenced Hudson, and utterly inconsistent with the claim he now sets up.
*453Second. Hudson has gone iorward, and shaped his conduct by these acts of Turnipseed.
Third. Hudson will be injured, by allowing Turnipseed to deny all these acts and admissions, and assert his claim to the office.