Upon the affidavits in this case we think the court below properly found that Morgan L. Sproat was not one of the defendant’s trustees at the time when the sum*258mons was served upon him. It follows, as was correctly held, that, for want of jurisdiction of the defendant, the judgment and the proceedings under it are void.

The plaintiff insists, however, that the defendant is estopped from objecting to the validity of the judgment by the conduct of its trustees and agents, and by receiving benefits, upon the basis that the judgment was valid, and then waiting until the statute of limitations had barred the original cause of action before moving to set aside the judgment.

In Pence v. Arbukle, 22 Minn. 417, this court defines an estoppel in pais as follows, viz.: “ An estoppel in pais arises when one, by his acts or representations, 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 acts, on the belief so induced, in such manner that, if the former be permitted to deny the existence of such facts, it will prejudice the latter. ’ ’

In this case the matters appearing in the affidavits, and which are not denied, and are important with reference to the claim, of estoppel, are these: The original cause of action upon which the judgment was based ivas barred, by the statute of limitations, in January, 1874. The judgment was assigned to its present holder, (C. D. Strong,) on February 26, 1875. Strong, in his affidavit, says “that, on April 6,1875, he wrote to John Laramy, (one of defendant’s trustees,) notifying him of the purchase of said judgment, and demanding payment; that, in response to said letter, Bev. S. Bollos, then preacher in charge of defendant — and, to the best of affiant’s recollection and belief, said Laramy — came to affiant and commenced negotiations for the payment of said judgment ,• that, thereafter, and on June 19, 1875, at a regular quarterly meeting — called by Rev. D. Cobb, presiding elder — of the pastor, official members, and trustees of defendant, affiant met with them, as owner of *259said judgment, and at said Cobb’s request said Laramy and others of said trustees being present and participating in the proceedings; that in said meeting various plans for liquidating said indebtedness to affiant, and satisfying said judgment, were discussed, but no claim was made that the .said judgment was void, and no offers of compromise, based on the invalidity of said judgment, were made ; but affiant was asked to make, and did make, his best terms of payment as a favor to defendant, and the subject of discussion was the best means of raising the money without sacrificing the property of defendant.”

Strong’s affidavit contains further allegations as to the action of the defendant, through its trustees and agents ; but these allegations are met on the other side by positive denials. The trustees (with the exception of one, who has deceased, and whose dying declaration to the same effect is referred to) all depose that they had no knowledge of the existence of the j udgment, or of the institution or pendency of the action in which the judgment was rendered, until after Strong claimed to be the owner thereof, and not till after March, 1875 ; and that they had no knowledge as to the person upon whom the summons was served until after nr about the time of the execution sale, on October 22 and 23, 1875, but supposed that the service was made, and could lawfully be made, bjr publication.

This state of facts fails to make out an estoppel, within the definition above quoted. The negotiations and discussions do not appear to have resulted in any definite conclusion, or in any agreement, or even proposition on the part •of defendant’s trustees. We are unable to perceive how the defendant could properly be said to have been induced by them to believe any fact, upon his belief in which he acted in the premises. It is claimed that the negotiations and discussions proceeded upon the basis of the existence of a valid judgment, and were, therefore, an admission of its validity. But in the first place there is no reason to suppose *260that Strong’s belief in the validity of the judgment was iii any way induced by anything which appears to have taken place at the time of the alleged negotiations and discussions. On the contrary, the presumption is that he believed the judgment to bo valid at the time when ho purchased it. In the second place, if it were admitted that Strong’s belief in the validity of the judgment was induced by the failure of defendant’s trustees “to speak out,” such failure could not be attributed to “culpable negligence,” because the ground of invalidity was not then known to the trustees. As respects the matter of prejudice, it can hardly be said that anything alleged to have taken place at the negotiations'- and discussions could have induced him to wait until the statute of limitations had run against the original cause of action, for the statute had taken effect more than a year before he purchased the judgment. It might be urged that, if he had been made aware of the invalidity of the judgment, he would not have incurred the expense of the execution sale ; but, even if this were an admitted fact, it would not, for reasons before suggested, bring the case within the principle of estoppel in pais.

The burden of making out the estoppel being upon Strong, we are thus reluctantly forced to the opinion that the action of the court below, in setting aside the judgment and all proceedings thereon, must be sustained — reluctantly, we say, for, upon perusing the papers in the case, we cannot resist the conclusion that the result arrived at is, in morals, though not in law, a practical injustice to the holder of the judgment. If the action of Mr. Bolles had not been repudiated — as it seems to us it ought not to have been — the result might have been entirely different.

Order affirmed.