OPINION OP THE COURT.
MANN, J.
1 At the January, 1904, term of this court this case was heard on appeal from the district court of Socorro county, from a judgment in favor of the defendants and reversed and remanded to that court for further proceedings in conformit.y -with the opinion in the case. Dye et al., v. Crary et al., 78 Pac. 533.
It was held in that opinion that there was no authority for an alias writ of attachment at the time the alias writ was issued in Taliaferro v. Dye, in the district court of Lincoln county, and that property levied upon under such writ gives the court no jurisdiction, and that consequently the judgment against Dye in that court, and the sale of the property in controversy, was absolutely void. The court having so held, whether right or wrong, it thereupon became the law of this case and is controlling upon this court, so that the question of the validity of the alias writ and the proceedings of the court thereunder cannot be reviewed here. The evidence being substantially the same.
This court, spaking through Mr. Justice McFie, in Crary v. Field, 10 N. M., 257, quoted with approval the following language from Phelan v. San Francisco, 20 Cal. 45.
' “A previous ruling b3 the appellate court upon a point distinctly made may be onty authoritv in other cases, to be followed and affirmed, or to be modified or overruled, according to its intrinsic merits, but in the case in which it is made it is more than authority; it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves.”
In Flournoy, et al., v. Bullock, et al., 11 N. M., Mr. Chief Justice Mills, in the opinion of the court says: “According to well settled principles, of law and the decision of this court, in the case of Crary v. Field, 61 Pac. 118, the former decision of this court when this case was here before on appeal (Rice v. Schofield, 9 N. M. 314), so far as it states the law, is the law of the case,, and will not be reviewed by this court on this hearing.
This seems to be the universal rule. Balch v. Hass, 73 Fed. 975; Supervisors v. Kenncott, 94 D. S. 498; Ex Parte Sibbald, 12 Peters, 487; Seizer v. Many, 16 How. 97; Corning et al., v. The Troy & Nail Factory, 15 How. 451, 466; Roberts v. Cooper, 20 How. 457; Durant v. Essex County, 101, U. S., 555;; Stewart v. Salamon, 97 U. S. 361.
The facts presented with reference to the attachment proceedings are identical with those presented on the former appeal and cannot now be reviewed; the law expressed in the former opinion, so long as it stands unreversed, is the settled law of this case.
2 The next question arising is whether or not defendant Dj^e is estopped by his actions and conduct from asserting title to the Compromise Mining claim, the property in dispute,, or, in other words, whether his acts have raised him an equitable estoppel.
Whether certain acts, misrepresentations or silence on the part of a person will raise an equitable estoppel against him from claiming title to real property depends largely upon the circumstances in each individual case, and such a plea is addressed to the conscience of the trial court, whether in equity and good conscience he should bi allowed, under the circumstances, to set up and establish such a claim. True, such an estoppel may be raised in courts of law, but the principle is one of equity.
Equitable estoppel is defined as: “A right arising from acts, admissions, or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged.” Bigelow on Estoppel (4th Ed.) 445.
“An estoppel (which) presupposes error upon one side and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage.” Anderson L. Diet.
“This estoppel arises where one, by his acts, repre-' sentations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief^ so that he will be prejudiced if the former is permitted to deny the existence of such facts.” 16 Cyc. 722.
Bouvier defines it as an estopjiel “such as arises from the acts and declaration of a person by which he designedly induces another to alter his position injuriously to himself.” 1st Bouvier (Bowles Bevision) 694.
There are, however, certain well defined and essential elements which must enter into the acts, conduct or representations of the party against whom the estoppel is sought to be raised, in order to constitute an equitable estoppel.
“The following elements must be present in order to constitute an estoppel by conduct: 1. There must have been a representation of concealment of material facts. 2. The representation must have been made with knowledge of the facts. 3. The party to whom it was made must have been ignorant of the matter. 4. It must have, been made with the intention that the other party would act upon it. 5. The other party must have been induced to- act upon it. 1st Bouvier (Bowles Kevision) 695; Bigelow on Estoppel, 484.
-'“In order to constitute an equitable estoppel there-must exist a false representation, or concealment of facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the -intention that it should be acted upon; and the party to: whom it was made must have relied or acted upon it 'to his prejudice.” 16 C'. Yol. 726.
Bearing in mind these definitions and elementary principles of the doctrine of equitable estoppel, is Dye estopped by his acts and conduct from now asserting his title to the mining claim in controversy ?
His acts which are set up as raising an equitable estoppel against him are: 1. Faiulre to attack the judgment and proceedings in the attachment cáse, directly within the time prescribed by law. 2. That he had told strangers to this action, (Mclver, Eobertson and others) that he had lost his interest in the property, and 3. That he told the original defendants, Crary and Heiniman, before they purchased under the option from Taliaferro, “That there could be no other claimant unless it was himself (Dye) and he had allowed his time to lapse and made no further claims to the property.” This in answer to the direct question of Hieniman as to whether the title to this, propertj', the Compromise mine, was all right. (See deposition of Crary p.*219, Eecord.)
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OPINION OP THE COURT.
MANN, J.
1 At the January, 1904, term of this court this case was heard on appeal from the district court of Socorro county, from a judgment in favor of the defendants and reversed and remanded to that court for further proceedings in conformit.y -with the opinion in the case. Dye et al., v. Crary et al., 78 Pac. 533.
It was held in that opinion that there was no authority for an alias writ of attachment at the time the alias writ was issued in Taliaferro v. Dye, in the district court of Lincoln county, and that property levied upon under such writ gives the court no jurisdiction, and that consequently the judgment against Dye in that court, and the sale of the property in controversy, was absolutely void. The court having so held, whether right or wrong, it thereupon became the law of this case and is controlling upon this court, so that the question of the validity of the alias writ and the proceedings of the court thereunder cannot be reviewed here. The evidence being substantially the same.
This court, spaking through Mr. Justice McFie, in Crary v. Field, 10 N. M., 257, quoted with approval the following language from Phelan v. San Francisco, 20 Cal. 45.
' “A previous ruling b3 the appellate court upon a point distinctly made may be onty authoritv in other cases, to be followed and affirmed, or to be modified or overruled, according to its intrinsic merits, but in the case in which it is made it is more than authority; it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves.”
In Flournoy, et al., v. Bullock, et al., 11 N. M., Mr. Chief Justice Mills, in the opinion of the court says: “According to well settled principles, of law and the decision of this court, in the case of Crary v. Field, 61 Pac. 118, the former decision of this court when this case was here before on appeal (Rice v. Schofield, 9 N. M. 314), so far as it states the law, is the law of the case,, and will not be reviewed by this court on this hearing.
This seems to be the universal rule. Balch v. Hass, 73 Fed. 975; Supervisors v. Kenncott, 94 D. S. 498; Ex Parte Sibbald, 12 Peters, 487; Seizer v. Many, 16 How. 97; Corning et al., v. The Troy & Nail Factory, 15 How. 451, 466; Roberts v. Cooper, 20 How. 457; Durant v. Essex County, 101, U. S., 555;; Stewart v. Salamon, 97 U. S. 361.
The facts presented with reference to the attachment proceedings are identical with those presented on the former appeal and cannot now be reviewed; the law expressed in the former opinion, so long as it stands unreversed, is the settled law of this case.
2 The next question arising is whether or not defendant Dj^e is estopped by his actions and conduct from asserting title to the Compromise Mining claim, the property in dispute,, or, in other words, whether his acts have raised him an equitable estoppel.
Whether certain acts, misrepresentations or silence on the part of a person will raise an equitable estoppel against him from claiming title to real property depends largely upon the circumstances in each individual case, and such a plea is addressed to the conscience of the trial court, whether in equity and good conscience he should bi allowed, under the circumstances, to set up and establish such a claim. True, such an estoppel may be raised in courts of law, but the principle is one of equity.
Equitable estoppel is defined as: “A right arising from acts, admissions, or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged.” Bigelow on Estoppel (4th Ed.) 445.
“An estoppel (which) presupposes error upon one side and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage.” Anderson L. Diet.
“This estoppel arises where one, by his acts, repre-' sentations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief^ so that he will be prejudiced if the former is permitted to deny the existence of such facts.” 16 Cyc. 722.
Bouvier defines it as an estopjiel “such as arises from the acts and declaration of a person by which he designedly induces another to alter his position injuriously to himself.” 1st Bouvier (Bowles Bevision) 694.
There are, however, certain well defined and essential elements which must enter into the acts, conduct or representations of the party against whom the estoppel is sought to be raised, in order to constitute an equitable estoppel.
“The following elements must be present in order to constitute an estoppel by conduct: 1. There must have been a representation of concealment of material facts. 2. The representation must have been made with knowledge of the facts. 3. The party to whom it was made must have been ignorant of the matter. 4. It must have, been made with the intention that the other party would act upon it. 5. The other party must have been induced to- act upon it. 1st Bouvier (Bowles Kevision) 695; Bigelow on Estoppel, 484.
-'“In order to constitute an equitable estoppel there-must exist a false representation, or concealment of facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the -intention that it should be acted upon; and the party to: whom it was made must have relied or acted upon it 'to his prejudice.” 16 C'. Yol. 726.
Bearing in mind these definitions and elementary principles of the doctrine of equitable estoppel, is Dye estopped by his acts and conduct from now asserting his title to the mining claim in controversy ?
His acts which are set up as raising an equitable estoppel against him are: 1. Faiulre to attack the judgment and proceedings in the attachment cáse, directly within the time prescribed by law. 2. That he had told strangers to this action, (Mclver, Eobertson and others) that he had lost his interest in the property, and 3. That he told the original defendants, Crary and Heiniman, before they purchased under the option from Taliaferro, “That there could be no other claimant unless it was himself (Dye) and he had allowed his time to lapse and made no further claims to the property.” This in answer to the direct question of Hieniman as to whether the title to this, propertj', the Compromise mine, was all right. (See deposition of Crary p.*219, Eecord.)
In treating of this question it must be borne in mind that the sale under the attachment proceedings was absolutely void and that therefore the grantor to Heiniman and Crary had absolutely no tile to convey; that such proceedings were matters of record and equally available to Dye, Crary and Heiniman; that all these conversations with Dye took place after Crary and Heiniman took the option from Taliaferro, and after the big strike and most of the expenditure upon the claim; that it is undisputed that Dye had, no actual knowledge .of the invalidity of the attachment proceedings until’ after the actual sale from- Taliaferro to Crary and Heiniman. The judgment and sale in the attachment case being absolutely void and subject to collateral attack, (Dye v. Crary, 78 Pac. 533,) it necessarily follows that Dye was under no obligation to attack it directly and his failure to do so was not an abandonment of his rights. It would be folly to say that a judgment was void and subject to collateral attack and then add that because one did so attack it he thereby lost his rights.
The conversation between Dye and the witnesses Bobertson, Mclvers, Despain, Fusion, Thomas, Alexander and perhaps others, in which Dye stated that he had lost his interest in the Compromise by lapse of time, or by the attachment proceedings, clearly do not constitute an equitable estoppel, for the reason that neither of these witnesses are, nor never have been interested in the property in controversy, nor does it appear that the parties claiming the land were told of these conversations, or in any manner acted upon them, or that they came to their knowledge until after this suit was brought, or at most, after Heiniman and Crary purchased from Taliaferro, Moore v. Boyd, 74, Cal. 167; Harvey v. West, 87 Ga. 553; Davis v. Davis, 26 Cal. 23.
Dye was not informed that his statements to these witnesses might affect his rights or would be relied upon by anyone. Hackett v. Callender, 32 Vt. 97; Scharman v. Scharman, 58 Neb. 39; Allen v. Shaw, 61 N. H. 95.
As to the direct statement from Dje to Heiniman and Crary there is little or no controversy. Mr. Crary says: (p. 219 Eecord) "Mr. Dye was there (at the mine) and Mr. Heiniman asked him, I can hardly remember the exact words, but in substance whether the title to this property, the Compromise mine, was all right. Mr. Dye replied that there was some drawn 'ground between it and the Scranton on the side that would belong to the Scranton. It was an over-lap; and that there could be no other claimant, unless it was him, and he had allowed his time to lapse and made no further claims to the property. He also added, I hope you will do well with the property, and make lots of money, out of it.”
Mr. Heiniman, (at page 191 of the record) says: "Mr. Dye visited the mine and while there in presence of Mr. Alexander and Mr. Crar3>, I told him that I was about to make the pa3rment for the property in full, and I asked him if he knew of any conflicting claim or anv1other claims on the Compromise. He immediately answered there was. The Scranton claim took off about a hundred feet, and he said as to other claims there would be nobody but himself. And he says T have allowed all my time to lapse and I have no claim whatever. With that he wished me success and hoped it would .prove a good mine.”
Mr. Dye (p. 286 record) says: “I have no doubt that I have told him, Mr. Heiniman, in various conversations that we have had on all manner of subjects that I had at one time owned five-sixths of the Compromise mine. I have no doubt that I have told him, as 1 have told anybody else who made it their business to inquire of me, that fact. Q. "What fact? A. That I had been the owner of five-sixths of the Compromise mine, and that it was sold out under attachment in my absence from the territory.”
Granting that the conversation took place as testified by Mr. Heiniman, the most favorable to the defendants, it does not contain many of the essential elements of an equitable estoppel. Dye did not know of his rights; at, least, he had no actual knowledge, as shown by the very language attributed to him: “I have allowed all my time to lapse and have no claim whatever,” was a mere statement of his supposed legal rights, and not of a matter of fact. At that time (October 23rd) he had not been advised of his rights by Mr. Childers, and if he made the statement, did so under the impression and' belief that the attachment proceedings were regular and valid.
"An admission, in order to constitute an estoppel, must relate to an admission of fact, and a person will not be estopped by an admission' as to the law.” 16 Cyc. 756. Citing: English v. Dycus, 8 Ken. L. Rep. 331; Brewster v. Stryke, 2 N. Y. 19; Crawford v. Lockwood, 9 How. Pr. (N. Y.) 547; Daub v. Northern Pac. Ry. Co., 18 Fed. 625.
In Huffman v. Nixon, (Mo.) 75, Am. St. Rep. 454, Mr. Justice Robinson, in delivering the opinion of the-court at page 459-60, says: "As to the two remaining contentions of defendant and which (judging from the briefs filed herein) must have been the controlling question, in the mind of the trial court, in the making of its judgment. First, that the sheriff sold and plaintiff bought only the equity of redemption of J. B. Kelsey in the land in controversy, and second, that he should now be estopped to assail the deed of trust conveying the land, on account of his declaration and conduct, and the answer filed by him in the Knoop case recognizing its validity, notwithstanding the court may think and find the deed of trust in fact to have been .fraudulent in its inception, we have this1 to say: The proof shows that the sale was made in the ordinary way and that the sheriff sold all the1 right, title, and interest of the execution defendant in the land. The sheriff simply acted under and in conformity to the statute, and in virtue of the judgment of the court, and the. law under which he acted conveyed all the interest and estate of the execution defendant in the land sold. If the land in fact was subject to a prior value deed of trust (regardless of the manner of the sale), the purchaser .would have only bought the equity of redemption of the original grantor, and execution defendant, while, • on the other hand, if the sale had been made subject to the so-called deed of trust in express terms .and the same should afterwards be discovered fraudulent, and without regard to what the execution purchaser thought of it, at the time of the sale, or what he afterward said or offered to do, by the answer in the suit of Koop against the Kellys, Nixon, and himself in 1892, when Koop attempted to have the sale set -aside, it could and did not affect the interest purchased by him, and he cannot now be estopped by what was done ,or said from setting up the fraudulent origin and, character of the deed of trust by those who have lost nothing by his belief,- declaration or answer filed.”
' If Dye had no knowledge of the actual character of the proceedings against him and that they were void for want of jurisdiction, then there could have been no fraudulent representation or concealment on his-part; when he had the conversation with Crary and Heiniman.
In Brant v. Virginia Coal & Iron Co., 2 et al., 93 U. S., 326, Mr. Justice Field (at:page 335) says: “It is difficult to see where the doctrine of equitable estoppel comes in here. For the application -of that doctrine there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as to amount to constructive fraud,. by which another had been misled .to his injury. Tn all this class of cases/ says Story, 'the doctrine proceeds upon the ground of constructive fraud or of gross negligence, which in effect implies fraud. And, therefore, when the circumstances of the case repel any such inference, although there may be some appearance of negligence, yet courts of equity will not grant relief. Ii has been accordingly laid down by a very learned judge that the eases on this sujbeet go to this result only, that there must be positive fraud or concealment, or negligence so gross as to amount to constructive fraud.’ 1 Story’s Eq. 391, to the same purpose is the language of the adjudged eases.”
And on page 337: “It is also essential for its application with respect to the title of real property that the party claiming to have been- influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the true state of the title, but also of any convenient and available means of acquiring such knowledge. Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth,- there can be no estoppel. Crest v. Jack, 3 Wates, 240; Knauff v. Thompson, 4 Harris, 361.”
In Henshaw v. Bissell, 18 Wall. 255, the same judge says: (p. 271) : “An estoppel in pais is sometimes said to be a moral question. Certain it is that to the enforcement of an estoppel of this character, such as will prevent á-party from asserting his legal rights to propertj-, there must generally be some degree of turpitude in his conduct which has misled others to their injury. Conduct or declarations founded upon ignorance of ones rights have no such ingredient, and seldom work any such result. There are cases, it is true, where declarations may be made under such circumstances that the party will be estopped"from denying any knowledge of his rights; but these are exceptions and do not affect the correctness of the-general rule as stated.” Smith v. Sprague, 119 Mich. 138 (75 Am. St. Rep. 384.)
Nor can it be said that Dye was guilty of such negligence as would amount to a fraud -in law. As soon as he discovered-the invalidity of the judgment and sale of his property, he immediately brought this suit. It may be said that Dj^e had constructive notice of the invalidity of the proceedings, but that contention acts as a two edged sword and if he is charged with notice, how much more so were the defendants, Crary and Heiniman, the proposed purchasers from Taliaferro? It seems also to be a well settled rule of law that where all parties have an equal opportunity to determine the true facts there is no estoppel. 16 Cyc. 741, Strum v. Baker, 150, U. S 312; Brant v. Virginia Coal Co., 93 U. S., 326.
Another essential element of equitable estoppel in this case is lacking, in that Crary and Heiniman did not rely upon the statements of Dye as to the condition of the title to the Compromise mine. The evidence shows that they procured an abstract of the title and employed an attorney to examine these very proceedings and relied at least in part, upon his report. I quote from pages 205-6 of the record, Mr. Heiniman , being on the stand. “Q. What report did your attorney make to you about that? A. He told me that he examined the record carefully, and paid the clerk $4.00 to assist, him in going through the records, and he reported to me that all proceedings of this sheriffs sale was regular and that everything was of record and that so far as that was concerned, I would be perfectly safe to handle the property. Q. Now, when you came to handling the property and making this payment, did you rely upon Dye’s statement to you, or the opinion of your attorney and this abstract? A. I relied upon all these."
“It is an essential element of equitable estoppel that the person invoking it has been influenced by and relied on the representations or conduct of the person sought to be estopped; but in all cases the representation or conduct must of itself have been sufficient to warrant the action of the party setting up the estoppel, and if notwithstanding such representation or conduct he was still obliged to inquire for the existence of other facts and to rely upon them also to sustain the course of action adopted, he cannot claim that the conduct of the other party was the cause of his action, and no estoppel will arise.” 16 Cyc. 736, Citing: McMaster v. Insurance Co., of N. Am. 55 N. Y., 222; Deer Lodge Bk. v. Hope Min. Co., 3 Mont. 146; Firt National Bank v. Peetz, 186 Pa. St. 204; 11 Am. & Eng. Ency. of Law, 439.
3 Defendants contend that Dye had forfeited' his rights to his co-owner Johns, and that Taliaferro, the-purchaser at the sheriff’s sale under the attachment proceedings, by paying to Johns the amount due from Dye, for the assessment work of 1898, suceeeded thereby to Johns’ rights and became the owner by reason of the forfeiture. They contend that Sec. 3126 C. L. subrogates them upon the pajanent to Johns, to his rights. But that section contemplates a valid judicial sale, and this sale being void would give them no such rights, even if their contention as to that be correct. But we cannot concur in defendants’ view, either, that there was a forfeiture, or that if such was the case that Taliaferro by his payment to Johns succeeded to his rights or to Dye’s. Clearly Taliaferro, when he made the payment, did so to protect the interest he acquired, if any, by 'the sale under the attachment — indeed, such is the contention of counsel. (Supp. & Eeply Brief, p.-2-3.) This being true Taliaferro was not attempting to create or buy an outstanding title, but to protect-the title obtained through Dye. The alleged forfeiture was never completed because the money was paid to the co-owner before the ninety days after the conclusion of the advertisement, under Sec. 2324 E. S. H. S., and Taliaferro having acquired no rights under the void sale, was a mere volunteer and was not subrogated to the rights of anyone.
But there is another, and it seems to us, a conclusive reason why there was no forfeiture. The record .discloses that the title to the one-sixth interest was in the Apex Gold Mining Company, a corporation, while the notice was given by T. C. Johns. Johns was a stranger to the title and while there is evidence that he was the manager of the Apex Gold Mining Company, yet ■ he could not have given the notice in his own name. Statutes of forfeiture are strictfy construed and must be strictly complied with. A notice to Dye that Jones had performed the labor as co-owner with him and that the title would be forfeited to him, was no notice that the Apex Gold Mining Company, his real co-owner was attempting to advertise him out. Turner v. Swayer, 150 U. S. 578.
The testimony of Walsh (p. 228 Record), shows that he did the work for the Apex Company. The testimony of Taliaferro (p. 253 Record), shows that the one-sixth interest was not in Johns’ but in the Apex Company. Just'why we should assume that Johns was the -owner of the one-sixth interest in his own right, in the face of this testimony of defendants’ witnesses, does not .appear.
“The burden of proof rests with the party asserting the forfeiture.” 2 Lindley, on Mines, Sec. 646.
The judgment of the court below was right, and is therefore affirmed.
Wm. H. Pope, A. J., Ira A. Abbott, A. J., concur. Mills C. J., and McFie, A. J., dissent from the conclusions of the majority of the court. Parker, A. J., having heard the case below, did not sit.