CONCURRING OPINION OP
MR. JUSTICE WOLE.My idea of section 1405 of the Civil Code is that it must be limited to cases where a purchaser who apparently buys. *97a certain' thing finds himself threatened with a privation, redaction or diminution of the thing that is honght. The section has no application to purchases where the purchaser buys a piece of mortgaged property knowing directly or constructively that the property was mortgaged. By “constructively” I mean, of coarse, a record of the mortgage in the registry. If the parchaser knows or has reason to know that the property is mortgaged, especially where there is no deception by the vendor, the said parchaser has obtained from the vendor the thing he contracted for, in sach case, a piece of mortgaged property. The parchaser then is not distarbed in the possession or ownership of the thing ac-qnired. The “thing acquired” is a mortgaged piece of property.
The case is even stronger where a parchaser himself gives a mortgage for the deferred parchase price. Not only is sach a parchaser estopped by the creation of the mortgage, bat the final words of section 1405 mast be held to cover the case, namely, that the “stipnlation” referred to has been created. The vendor has then agreed to pay notwithstanding the mortgage, indeed, by reason of . it, and the mortgagee has a clear right to proceed nnder his mortgage. The rights of sach mortgagee and vendee are transmissible and the assignee baying the mortgage credit has, if anything, greater rights than the original mortgagee, as the former bays the mortgage credit from the recorded owner of sach mortgage right. I see absolately no legal possibility for a man who volantarily execates a mortgage to cover the deferred parchase money, to escape payment by invoking section 1405. Sach mortgagor is then going even a step farther than he woald be if he refased to pay the parchase price. It is essentially no different than if a par-chaser soaght to escape paying his own vendor the deferred parchase price by invoking said section, merely be-caase the vendor threatened sait.