¶1Opinion.
¶2If Heard consented to the release of the mule from the operation of the deed of trust, he could not afterwards claim it. There is no positive evidence of such consent. It is sought to be deduced as an inference from circumstances. It is shown that Heard was desirous for Tates to take the mule back, and had several times urged this on Tates, who had as often refused to do it. In their last interview on the subject in August, Tates had still refused. Afterwards, and when Heard was not present or a party to it, Tates and Martin had a transaction by which the mule was surrendered by Martin to Tates. About a week after this Tates went to Htica to see Heard, but he did not see him and left a message for him with his clerk, but it is not shown to have been communicated to him. Martin sometime after he had surrendered the mule to Tates told Heard of it, who made no reply. From these circumstances the consent of Heard to the surrender of the mule was inferred. We consider them insufficient to establish such consent. The evidence shows only that at one time Heard was willing to release the mule, and that then Tates was not willing to take it on the terms proposed, and that, afterwards, Tates did *348take it back, ■without Heard’s consent then expressed; and although a knowledge of this was communicated to Heard by Martin, and Heard made no objection to him, it does not follow that the silence of Heard constituted consent or acquiescence, for he was not bound to speak when informed by Martin. It does not appear that Heard ever said or did anything whereby he was precluded from asserting a claim to the mule.
¶3Judgment reversed and new trial granted.