delivered the opinion of the Court—Cope, J. concurring.
This is an action to recover the possession of certain premises, situated within the city and county of San Francisco, and arises upon the following facts: In 1853, the plaintiff conveyed the premises to Baker, for the consideration of one hundred and twenty thousand dollars, and received from him, at the time, a mortgage as security for the purchase money. The conveyance and mortgage were executed simultaneously. Both were of the premises in fee, but without covenants of warranty. Upon the foreclosure of the mortgage, the plaintiff became the purchaser, and received the Sheriff’s deed.
To resist a recovery, the defendants offered to prove an older and better title by grant from the government of Mexico, before the cession of the country to the United States, and to follow such proof by deraignment of title from the grantees to Boyreau, passing through Baker, after the execution of the mortgage under which the plaintiff claims. The Court excluded the evidence as immaterial, and the defendants excepted.
It was admitted that Clark was in the occupation of the premises at the time he executed the conveyance to Baker, and that the latter entered under the conveyance, and was in the possession when he acquired the older title. The plaintiff had judgment, and the defendants appeal.
The Respondent relies for the affirmance of the judgment upon several grounds, but it is unnecessary to refer to only one of them—that which relates to the operation of the deed of mortgage upon the older and outstanding title, subsequently acquired by the mortgagor. In the case of Clark v. Baker et al. decided at the present term, we had occasion to consider the effect of this mortgage upon the after-acquired interest. We there held that it was immaterial whether the mortgage was regarded as a conveyance of a conditional estate, as at common law, or as creating a mere lien or incumbrance, as by the law of this State, that though by our law the title does not pass, yet the lien created operates upon the property in a way precisely *636equivalent to that which would follow, if the instrument transferred the legal title; that, whatever in the instrument, treating it as a conveyance, would operate to transfer a subsequently acquired title to the grantee, must equally operate, treating the instrument as a lien or incumbrance, to subject such acquired interest to the purposes of the original security; that the mortgage, regarded as a simple conveyance, only passed, by the doctrine of the common law, as established and recognized in England and the United States, the estate which the mortgagor possessed at the time, and did not oj>erate, by way of estoppel—in the absence of covenants of warranty, or recitals, or other circumstances, indicating an intention to pass any greater estate—■ upon the title subsequently acquired; but that by the 33d Section of the Act concerning conveyances of this State, the doctrine of the common law was changed, and an operation given to deeds under the Statute of Uses, upon the after-acquired interest, equivalent to the most expressive covenant of warranty; that the section applied to mortgages equally as to conveyances absolute in their form; and that, by its provisions, the mortgage of Baker, being of the premises in fee, operated upon the outstanding title afterwards acquired as effectually as if it had been originally possessed by him. In that case we also held that the mortgagor was under obligation, from the nature of the mortgage contract, to preserve the property pledged for the purposes of the original security; and, hence, on grounds of public policy, to insure good faith and fair dealing, he was es-topped, independent of any covenants of warranty, from denying the existence of the lien which he had attempted to create, or defeating its enforcement against the property upon which it was placed—and those claiming under the mortgagor were equally estopped. The estoppel operated upon the subsequently-acquired title, and bound parties and privies. That case disposes of the several positions urged for a reversal of the judgment in the present case. The rights of the defendant Boyreau —and the other defendants claim under him—were concluded by the decree in the equity suit, to which he was a party.
Judgment affirmed.