(concurring). I would place the result on what to me is surer footing.
Higgons conveyed a third of the Blakeman title to Miss Connolly in 1925 and reacquired it from her successor through the foreclosure of the purchase money mortgage. Defendant Gallagher claims through Higgons. The trial court and Appellate Division approached the matter on the premise that Gallagher had the burden of proving Mrs. Blakeman acquired title by possession, either adverse or under the 1853 mortgage she held. I cannot agree with that view.
It is a settled rule that a mortgagor is estopped to dispute the title mortgaged. 19 Am. Jur., Estoppel, §§ 5-6, p. 603; 36 Am. Jur., Mortgages, § 240, p. 811; 59 G. J. 8., Mortgages, § 200, p. 263; 3 American Law of Property (1952), § 15.18, p. 841; Annotation, L. B. A. 1918B, 734, 735; Den ex dem. Burhans v. Vanness, 10 N. J. L. 102 (Sup. Ct. 1828); Den ex dem. Wyckoff v. Gardner, 20 N. J. L. 556 (Sup. Ct. 1846); see Demarest v. Hopper, 22 N. J. L. 599 (E. & A. 1850). If a covenant should be necessary, the covenant of quiet enjoyment contained in the mortgage clearly suffices. Tully v. Taylor, 84 N. J. Eq. 459 (E. & A. 1915). Thus I start with the proposition that Miss Connolly was estopped to dispute the title she encumbered until and unless proof were adduced to lift that bar.
I agree a purchase money mortgagor may be freed of the estoppel. 36 Am. Jur., Mortgages, § 249, p. 816; 59 C. J. S., Mortgages, § 185, p. 239; Annotation, L. R. A. 1918B, 734, 738. But I believe the required showing is that the grantor-mortgagee committed a fraud as to title or breached a covenant with respect to it, with the burden of proof resting upon the mortgagor. I find no evidence of either thesis.
The sole proof is that record title was held by some one other than the grantor-mortgagee. In a controversy between *77claimants unaffected by prior transactions between them, proof of record ownership in one may well suffice to cast upon the other the burden of proving title via possession. And so, for example, in a suit for specific performance the vendor may have to overcome proof of record ownership in another by showing the requisite possession to establish a supervening title. Of. 55 Am. Jur., Vendor and Purchaser, § 156, ¶. 627; Annotation, 57 A. L. R. 1253, 1490 (1928). But the present situation is different. A deed was delivered. It contained no representation that the title conveyed was based upon a recorded ownership. A grantee who claims fraud or breach of covenant of title must prove the absence of title, and since title by possession, adverse or under a defaulted mortgage, is a good title, a grantee must negate these sources of ownership unless he shows a representation or covenant that the title was of record. Not only is there no proof that Higgons represented his title to be of record and no covenant that it was, but on the contrary the facts show inescapably that Miss Connolly had to know that Higgons claimed a title based upon possession. The Higgons deed is dated November 30, 1925 and the Ocean City Association deed is dated the following day. The record title was in Ocean City Association alone. Miss Connolly therefore must have known that Higgons claimed title by another route; there was no other basis for dealing with him. It is evident that by 1925 the claimants through the record owner had developed a healthy respect for the Blakeman claim. In 1900 they fought with her in Blakeman v. Bourgeois, 59 N. J. Eq. 473 (Ch. 1900), wherein she established her peaceable possession under claim of title as of the date the bill of complaint was filed. At the same time Ocean City Association, then the holder of a fourth of the record title, sought to buy Mrs. Blakeman’s title and waged more litigation in an effort to acquire it. Ocean City Association v. Cresswell, 71 N. J. Eq. 292 (E. & A. 1906). We may fairly infer that no effort was made to oust Mrs. Blakeman from possession during the period between those actions. The high regard with which Miss Connolly held *78the Blakeman claim is evident from the fact that the Higgons deed bore $35 in revenue stamps as against $75 in stamps on the deed from Ocean City Association. In addition, she exchanged covenants with Higgons.
The question is whether a purchaser who accepts a title known to be based upon facts dehors the record and gives a purchase money mortgage with a covenant of quiet enjoyment may some 30 years later, after time has stilled the witnesses, call upon the grantor to prove the facts the purchaser had once found sufficient. It seems clear to me she cannot escape the basic principle of estoppel. If it be thought that I infer too much in concluding that she knew Higgons claimed a title based upon possession, still the burden should be hers to prove fraud or breach of covenant, i. e., that Higgons did not have such title, and no such proof was offered.
The question remains whether the estoppel which binds Miss Connolly binds her successors as well. It is generally said the estoppel binds the party and his privies, but a conflict of authority has developed under recording statutes. 3 American Law of Property (1952), § 15.22, p. 849; 4 Tiffany, Real Property (3d ed. 1939), § 1234, ¶. 652. In our State, an innocent purchaser may rely upon the title record and hence be freed of an estoppel not evident from a title search. Wack v. Collingswood Extension Realty Co., 114 N. J. Eq. 253 (E. & A. 1933); Bingham v. Kirkland, 34 N. J. Eq. 229 (E. & A. 1881). The deed from Higgons to Miss Connolly is dated November 30, 1925, and both the deed from Ocean City Association to her and her deed to Southern Gardens, Inc. are dated December 1, 1925. Miss Connolly may have been a “straw” and if that is so, or if otherwise Southern Gardens, Inc. knew of the mortgage when it took title, it would be bound. Southern Gardens, Inc. conveyed to plaintiff in 1955. To escape the estoppel plaintiff must prove that it did not know of the mortgage when it took title or that its grantor Southern Gardens, Inc. was an innocent purchaser. There is no proof that either bought without knowledge.
*79Under the complex circumstances of this case, plaintiff should have an opportunity to offer proof with reference to estoppel and hence I would remand the cause to that end.
Under this approach it is not necessary now to consider the doctrine of title by estoppel. That doctrine has common roots with the broader principle of estoppel discussed above, but, as I see the situation, the question whether title should inure by estoppel cannot arise until it first is shown that Higgons did not have title, and as the record now stands there is no evidence that he did not.
I would reverse the judgment and remand the matter for further proceedings not inconsistent with this opinion.