2. Was it open to defendant to avail itself of the lien of the Santa Fe Railway Company for its freight charges?

It is too clear for discussion that the assignment to Roy was for defendant's benefit. He was acting for defendant's counsel in taking the assignment, and it paid the money to procure the assignment, and this was only one other step in the general scheme to get the goods out of Missouri into Kansas. If the sheriff of Jackson county had paid the freight bill and the attachment in Missouri had been followed up to judgment and sale, it may be the sheriff would have been allowed this amount, but, as this was not done, it is obvious that it was his duty when the attachment in Jackson county, Missouri, was dismissed, to have returned the goods, either to plaintiff, or her bailee, the railroad company.

In 5 American and English Encyclopedia of Law, second edition, 420, it is said: "The lien of a railroad company for freight is neither property, nor a debt, but a mere right to have a debt satisfied out of certain specified property, and is a personal right which cannot be sold or assigned."

In Ames v. Palmer, 42 Me. 197, 66 Am. Dec. 271, the supreme court of Maine said: "It has been repeatedly decided, both in England and in this country, that the lien of a factor is a personal privilege which is not transferable, and that no question upon it can arise except between the principal and factor: Daubigny v. Duval, 5 Term Rep. 604; McCombie v. Davies, 7 East, 5; Jones v. Sinclair, 534 2 N. H. 319, 9 Am. Dec. 75; Holly v. Huggeford, 8 Pick. 73, 19 Am. Dec. 303; Pearsons v. Tincker, 36 Me. 384. No reason is apparent why the same consequences should not attach to the lien of a common carrier as to that of a factor. In both cases the nature of the lien is the same. Both are common-law liens. . . The object of these liens being the same, their effect must be the same."

In Holly v. Huggeford, 8 Pick. 73, 19 Am. Dec. 303, Parker, C. J., said: "The lien of a factor does not dispossess the owner until the right is exerted by the factor. It continues only while the factor himself has the possession; and, therefore, if he pledges the goods for his own debt, or suffers them to be attached, or otherwise parts with them voluntarily, the lien is lost, and the owner may trace and recover them, or he may sue in trespass if they are forcibly taken; for his constructive possession continued notwithstanding the lien": Lempriere v. Pasley, 2 Term Rep. 485; Everett v. Saltus, 15 Wend. 478.

The lien of the Santa Fe Railway Company was no defense to plaintiff's right of action in this case. It ceased when the company assigned or attempted to assign it to defendant.

3. But the defendant invokes the doctrine of estoppel against the plaintiff. This it predicates on the statement of Goldberg to defendant when he bought the goods, August 24, 1895, to the effect that he was indebted to Rosencranz in the sum of two thousand one hundred dollars, but that Rosencranz was his brother in law, and that Rosencranz was willing to carry said indebtedness and not allow it to bother or interfere with his paying his other creditors, and subsequently in November, 1895, and after defendant had sold the goods to Goldberg defendant wrote to J. Rosencranz, advising him of Goldberg's statement to it, and received a letter from plaintiff in which she says, "replying to same, I will say that the statement made to you in August last by Herman Goldberg of Raton, N. M., regarding the indebtedness to me of two thousand one hundred dollars, was correct.

535 Plaintiff requested the court to instruct the jury that if Swofford Brothers Dry Goods Company sold no goods to Goldberg after receiving the letter from plaintiff, there was no binding agreement between plaintiff and Swofford Brothers Dry Goods Company not to enforce said indebtedness against the interests of said Swofford Brothers Dry Goods Company, which instruction the court refused, and plaintiff excepted. The court modified several similar instructions by adding thereto these words: "Unless you further believe there was between the plaintiff and said Goldberg an agreement, and that the same was communicated to the defendant by said Goldberg, that plaintiff would not allow his indebtedness to her to bother him or interfere in any way with his paying for goods purchased of wholesale houses, and that defendant relying on and induced by such agreement extended credit to Goldberg." To this modification plaintiff duly excepted at the time.

The question is, Was plaintiff by reason of this representation by Goldberg and her subsequent letter, estopped to purchase goods of Goldberg to save her debt? It is plain that defendant was notified that Rosencranz was a creditor of Goldberg to the amount of two thousand one hundred dollars. There was no concealment of this indebtedness. Without some valid contract binding her to other creditors not to enforce this debt, neither law nor justice would prevent the enforcement of this

debt any more than any other obligation owing by Goldberg. Advised of this indebtedness before it sold to Goldberg, defendant took no steps to obtain such an agreement in its favor. It sold him its goods and had no communication with Mrs. Rosencranz for more than two months afterward. It then wrote her and stated that Goldberg had assured it that she was willing to carry the indebtedness and not allow it to interfere with his paying his other creditors. Her debt was due. She had voluntarily agreed to induge her debtor, but there was, so far as this record discloses, no consideration for this 536 promise. As between her and Goldberg it would not have prevented her suing him at any time, and would have constituted no defense to her action. She had made no agreement with his creditorsnot to collect her debt or to give them a preference.

It may be that, if to induce defendant to sell him goods she had agreed her debt should be made subordinate to any debt he contracted with it for goods on the strength of her agreement, she might have been estopped to claim her rights along with it, but it is apparent it did not act on any such an understanding, but sold him goods without obtaining any agreement or having any understanding with her.

We are cited by defendant to State Savings Bank v. Buck, 123 Mo. 141, 27 S. W. 341; but that case is easily distinguished from this in that there the debt and the absolute deeds given to secure it were kept secret, and Buck and McCrosky permitted to obtain credit from others who extended credit in the faith of their ownership of the property. Here the debt was announced before the goods were sold. No mortgage or other lien had been taken which would give Mrs. Rosencranz any advantage over any other creditor.

All that was represented was by the debtor, and that was that she was willing to indulge him and not prevent his paying others he owed. The element of secrecy and the taking of a deed which might operate to give her a superior lien is wholly wanting.

Rice v. Bunce, 49 Mo. 231, 8 Am. Rep. 129, is also relied on, but in that case one having an equitable interest in land was present when it was put up for sale as the property of the person in whom the record showed title. He not only gave no notice of his title, but entered the list of bidders, and by his silence and acts, induced another to expend his money, whereas in this case Goldberg gave notice of the Rosencranz debt, and

Mrs. Rosencranz did no act to induce defendant to extend him credit on the assumption that she would not enforce it. At most she 537 was represented as a creditor who was willing to be indulgent and not to crowd Goldberg.

Conceding the full force of the doctrine of estoppel, that one who neglects to speak shall not be heard to do so when his silence or acts have led another to act to his injury, we are unable to find any evidence upon which to estop plaintiff in this case. Her debt was not kept secret. She made no representation to defendant to induce it to sell its goods to Goldberg, and conceding she was willing to indulge her debtor she was in no manner bound to forego the collection of her debt. The cases all agree that there can be no estoppel unless the party who alleges it relied upon the representation, was induced to act by it and thus relying and induced did take some action. Giving now full scope to everything represented by Goldberg, it must have been apparent to any reasonable man contemplating extending him credit, that if he desired to estop Mrs. Rosencranz something more than her mere gratuitous agreement with Goldberg was required to tie her hands so that she would not be at liberty to enforce her debt like his other creditors. Defendant was notified. It cannot be heard to say, in view of the evidence adduced by itself, that the truth was unknown to it at the time it sold Goldberg and at the time. it credited him. Mrs. Rosencranz asserted the debt which defendant was advised she held, and it knew the full extent to which she was bound not to enforce it, and that was a gratuitous agreement founded upon no consideration. It sought no greater security before it sold to him and obtained no more later. We do not think defendant established its estoppel even if it had been in position to do so. But if it had any equities or could invoke estoppel in a proper case, it cannot do so here, for the reason that it stands in this record as a trespasser with no right or title to the property. It acquired no lien or title by its attachment proceedings in Kansas. Plaintiff was in the peaceable possession, and if it desired to rely on its estoppel 538 it should have proceeded, not by trespass or force, but by invoking its claim in a court of justice. This defense is no more open to it than was the claim that Goldberg had sold and delivered the property to plaintiff to defraud his creditors. So far as this action is affected these two defenses stand in the same class.

Whatever the "confusion" which defendant pleads as an extenuation of the methods resorted to for the purpose of giving the Kansas courts jurisdiction, it must be said that plaintiff in no way contributed to it.

While we are satisfied defendant was only attempting to secure an honest debt, and that there was no wicked purpose in the various steps taken by it, still the courts cannot countenance the extreme methods used in this case to confer jurisdiction on the Kansas courts over plaintiff's goods. However honest the debt, it can only be enforced in the courts by obtaining jurisdiction in the manner prescribed by the law of the land. The fact of jurisdiction may be inquired into and when obtained by fraud in fact or fraud in law, the judgment may be impeached collaterally.

This principle is well established in Parsons v. Dickinson, 11 Pick. 352; Wood v. Wood, 78 Ky. 624; Dunlap v. Cody, 31 Iowa, 260, Am. Rep. 129; Duringer v. Moschino, 93 Ind. 495; Deyo v. Jennison, 10 Allen, 410; Drake on Attachment, sec. 193; Byler v. Jones, 79 Mo. 263; Capital Bank v. Knox, 47 Mo. 333.

It results that the court erred in refusing plaintiff's instructions invoking the views we have expressed, and in giving those for defendant. The judgment is reversed and the cause remanded to be proceeded with in accordance with this opinion. All concur.

The Conversion of Personal Property sufficient to sustain trover is the subject of a monographic note to Bolling v. Kirby, 24 Am. St. Rep. 795-819. And the title and possession sufficient to maintain trover are discussed in the note to Hostler v. Skull, 1 Am. Dec. 585589. The general rule is, that in an action of trover the plaintiff must show that at the time of the conversion he had a right of property, general or special, in the chattels, and the possession or the immediate right to the possession thereof: Union Stock Yard etc. Co. v. Mallory, 157 Ill. 554, 48 Am. St. Rep. 341, 41 N. E. 888. His possession may be actual or constructive: Gage v. Allison, 1 Brev. (S. C.) 495, 2 Am. Dec. 682; Lewis v. Mobley, 4 Dev. & B. (N. C.) 323, 34 Am. Dec. 379. See, also, White v. Yawkey, 108 Ala. 270, 54 Am. St. Rep. 159, 19 South. 360; Alliance Trust Co. v. Nettleton Hardware Co., 74 Miss. 585, 60 Am. St. Rep. 531, 21 South. $96.

Upon the Dissolution of an Attachment, the defendant is entitled to the return of the property: McReady v. Rogers, 1 Neb. 124, 93 Am. Dec. 333.