By the act of 1837, under which the mortgage in question was given, the books of the loan commissioners, kept in the clerks’ offices, containing the entry of such mortgages, are made of the same effect, as to priority of liens, and as to their operation and *36effect, as if such mortgages had been duly recorded in the book of mortgages in the office of the county clerk of the county in which such mortgaged premises are situate.
By the recording act, (1 R. S. 756, § 1,) “ every conveyance of real estate is required to be recorded in the office of the clerk of the county where such real estate shall be situated ; and by the 38th section of the same act, the term ‘conveyance’ embraces every instrument in writing by which any estate or .interest in real estate is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity.
In various cases, found in the books, it has been held that the registry, and the recording, of a mortgage, under the provisions of the statutes making it a duty so to register or record them, is notice to all subsequent purchasers and mortgagees, of the lien created thereby. (Frost v. Beekman, 1 John. Ch. 298. Parkist v. Alexander, Id. 398, 399. Johnson v. Stagg, 2 John. 510. Brinckerhof v. Lansing, 4 John. Ch. 69. Williams v. Birbeck, 1 Hoffman’s Ch. R. 369, &c.)
I think the case before us must be controlled by the effect of the covenants in the mortgage given to the defendants, and of the recording acts in this state. 1. The conveyance by mortgage to the defendants was wdth warranty, and covenant “that Martin B. Perkins and his wife were lawfully seised of the premises of a good, sure, perfect, absolute and indefeasible estate of inheritance, and' that the same were free and clear of, and from, all former and other gifts, grants, bargains, sales, liens, judgments, recognizances, dower, rights of dower and other incumbrances whatsoever.” Then the conceded rule of law is, that where a grantor, even has no title to the premises so conveyed with warranty, if he subsequently acquires an estate therein-, such acquired estate will enure to the benefit of the grantee; if not by estoppel, it will upon the principle of avoiding circuity of action. Such a case is dis*37tinguished from the ancient conveyance by feoffment with livery of seisin, now fallen into disuse in England, and not applicable here, under our system; so too it is distinguished from mere grants, by deeds poll and quit-claim. A mere grant operates upon the possession; it simply conveys the estate and interest which thé grantor had in the premises granted. If the grantor had no estate, it is obvious that there was no estate to be accepted; so that in the conveyance by grant only of lands, by deed or mortgage, the grantee is not estopped to aver that his grantor had nothing in the lands granted. (Sparrow v. Kingman, 1 N. Y. 252, &c.) But the rule is different where the conveyance is by warranty. As was said by Marcy, J., in Jackson v. Bradford, (4 Wend. 622,) “ the warranty will rebut and bar the grantor and his heirs of a future right. This is not because a title ever passes by such a grant, but the principle of avoiding circuity of action interposes and stops the grantor from impeaching a title to the soundness of which he must answer, on his warranty.” (Co. Litt. 265, a. 14 John. 194. Averill v. Wilson, 4 Barb. 187.) This warranty in the mortgage clearly estopped the grantor, Martin B. Perkins; and if the grantor or any one •ning title from him, subsequent to such grant, seeks to recover the premises by virtue of such after-acquired title, the original grantee, or his heirs or assigns, by virtue of the warranty, may plead such warranty by way of re-butter or estoppel, as a bar to the claim. (Bank of Utica v. Mersereau, 3 Barb. Ch. 567, 568.) Chancellor Walworth in that case said: “ This principle has been applied to all suits brought by persons bound by the warranty, or estoppel, against the grantee or his heirs and assigns, so as to give the grantee and those claiming under him the same right to the premises, as if the subsequently acquired title or interest therein had been actually vested in the grantor at the time of the original conveyance from him with warranty, where the covenant of warranty was in full *38force at the time when such subsequent title was acquired by the grantor.” And where an estoppel runs with the land, it operates upon the title so as actually to alter the interest in it in the hands of the heirs or assigns of the person bound by the estoppel, as well as in the hands of such person himself. (Brown v. McCormick, 6 Watts, 64. Comstock v. Smith, 13 Pick. 119.)
This principle seems to be founded in equity and justice, as well as in the policy of the law, and applies equally to a case of covenants of warranty in a mortgage, as to those in a deed absolute. This was so held in Vanderheyden v. Crandall, (2 Denio, 25; and see cases there cited.)
In this view of the case, the question is simple. The mortgage in question is an instrument within the recording acts. Although Martin B. Perkins, at the date of its execution, had no title to the premises, yet while he was in possession of them, and while his covenant of warranty was in full force, he became vested with the title in fee. This title enured to the benefit of the defendants by virtue of the warranty, by well established principles of common law. As between Martin B. Perkins and the defendants, this interest in the latter, in the lands, became as perfect as if the mortgage had been executed by Perkins after the date of his title. Bid the defendants lose this interest, by Perkins’ conveyance to the plaintiffs ? I think not. The case of The Bank of Utica v. Mersereau (supra) decides this question. The cases that are cited, and claimed to be in conflict with this principle, are cases of mortgages, or of simple grants without covenants of warranty, or cases where the question of the effect of the covenant of warranty did not arise. Such are the cases of Doyle v. The Peerless Petroleum Co., (44 Barb. 239,) and The Farmers’ Loan and, Trust Co. v. Maltby, (8 Paige, 361.) This last case is greatly relied upon by the plaintiff
It is easily distinguished from the cage before us, for other reasons. In that case, before the execution of the *39mortgage, (which is not shown to have contained covenants of warranty,) the mortgagor had sold the property by executory contracts, and the vendees were in the possession under their agreements at the time of execution of the mortgage, and had made payments thereon, thus having an equitable interest in the estate. Their grantor at the time of making the agreements not having the legal title, but having himself an equitable title under a contract to purchase, from the true owner, which he afterwards consummated by taking a deed, was the owner of an interest which he could alienate. The only question considered by the chancellor, in that case, was, whether the defendants should lose the payment’s they had made before they had. notice of the plaintiff’s mortgage. What the chancellor said in the case beyond that was obiter, and not an adjudication. That case has no application to the main question before us in this case upon its merits.
[Third Department, General Term, at Elmira, April 4, 1871.I am also inclined to think that the recording acts are controlling in favor of the defendant in this case, and that the judgment should be affirmed.
Judgment affirmed.
Miller, P. Potter and Parker, Justices.]