¶1The position of the petitioner, that the respondent was estopped from denying the delivery of the mortgage, cannot be maintained. There could be no estoppel by deed, unless the deed had been delivered. The very question at issue was whether the instrument had been delivered so as to take effect as a deed.
¶2There was.no estoppel in pais. It was not shown that what was done and said by the respondent was with any intent that his father or brother should take any action in reliance upon it; or that they did act upon it. The essential elements of an estoppel are wanting.
¶3The petitioner was not restricted in his right to use the facts of the making and recording of the mortgage and certificate of possession, as evidence tending to prove the existence of a valid mortgage in the hands of the persons named as mortgagees. The facts in regard to the manner in which the mortgage and the certificate of possession for foreclosure were prepared and placed upon record, and the consideration or want of consideration.and purpose of those transactions were competent upon the question of delivery. But it was not competent for the respondent to put in his own declarations, made to the witness Haskell, in regard to the purpose with which he had, two months before that time, made and recorded the mortgage, and in regard to its delivery or non-delivery. On this last ground, the
¶4 Exceptions are sustained.