(concurring in result). It is settled doctrine that an after-acquired title inures to the benefit of a mortgagee. Decker v. Caskey, 3 N. J. Eq. 446 (Ch. 1836); Den ex dem. Wyckoff v. Gardner, 20 N. J. L. 556 (Sup. Ct. 1846); Tully v. Taylor, 84 N. J. Eq. 459 (E. & A. 1915). 'It is ofttimes treated as an obligation founded on a covenant of seisin or warranty in a deed or mortgage. But it is in the nature of an equitable estoppel to serve the ends of essential justice; and it is on the ground of inequity and unconscionable advantage that the principle is held inapplicable to a purchase-money mortgage, depending upon the particular circumstances. Smith v. De Russy, 29 N. J. Eq. 407 (Ch. 1878), where the issue concerned the relative rights of two mortgagees; Cooper v. Bloodgood, 32 N. J. Eq. 209 (Ch. 1880); Shreve v. Harvey, 74 N. J. Eq. 336, 337 (Ch. 1908); Florida Land Investment Co. v. Williams, 84 Fla. 157, 92 So. 876, 26 A. L. R. 171 (Sup. Ct. 1922); Randall v. Lower, 98 Ind. 255 (Sup. Ct. 1884); Butterfield v. Lane, 114 Me. 333, 96 A. 233 (Sup. Jud. Ct. 1915). See 26 A. L. R. 175, for the eases elsewhere which apply the principle to purchase-money mortgages; and the suggestion in Hitchcock v. Fortier, 65 Ill. 239 (Sup. Ct. 1872), that in weighing the equities of the particular ease it may be taken into account that “[n] either law nor equity confines *80the vendor of land to the land sold as a means of enforcing payment.”
My primary concern is with the hypothesis that Ocean City Association v. Cresswell, 71 N. J. Eq. 292 (E. & A. 1906) “did adjudicate the question of the superiority of Mrs. Blakeman’s title * * *.” The decree there entered, June 24, 1905, amended March 20, 1907 to provide also for a conveyance by complainant of the title vested in it by Mrs. Gandy’s deed for the lands, as a means of effectuating the decree, in terms directed the specific performance of Blakeman’s 1897 agreement to sell and convey the lands to Higgons, Cresswell and Ocean City Association, the latter as the assignee of Gandy; Mrs. Blakeman, then Martha Ann Gandy, was enjoined to deliver to Higgons, Cresswell and Ocean City Association “a good and sufficient conveyance of the premises, conveying to each of them an equal undivided one-third part thereof, with the usual covenants against encumbrances,” and possession as well. But there was no adjudication of title. In all seeming, the parties bargained for a conveyance of the title presumed to be in Blakeman, the vendor; and specific enforcement was decreed under a cross-bill interposed by Higgons and Cresswell for such performance of the agreement of sale. This is not a case of the vendee’s resistance to specific performance on the ground of a deficiency or defect of title; a question of title was not made by any of the parties; there was no such issue in the case. The complainant Ocean City Association prayed for cancellation of this Blakeman agreement and specific performance of its own later agreement with Mrs. Blakeman; and it did not impugn the title. See Sutherland v. Briggs, 1 Hare 26, 11 L. J. Ch. 36, 6 Eng. Rul. Cas. 733; Pomeroy’s Equity Jurisprudence (5th ed.), section 1405a; 49 Am. Jur., Specific Performance, section 102.
There was no deceit or misrepresentation in the conveyance by Higgons to Connolly for Southern Gardens, Inc. The grantee knew full well the history of the title, and was aware of the record title in Bourgeois, proceeding from the *811854 execution sale to Hopkins. The title had been in litigation in Blakeman v. Bourgeois, 59 N. J. Eq. 473 (Ch. 1900), but the issue did not go to a final hearing and decree. Higgons and 'Cresswell bargained for the Blakeman title; and so also did Connolly and Southern Gardens, Inc. later on. The consideration for the conveyance under the agreement enforced in Ocean City Association v. Cresswell, cited supra, was $500; the mortgage given by Connolly to Higgons secured payment of the principal sum of $23,000 and interest, and the decree in foreclosure, in accordance with the finding of the master, fixed the amount due on the bond and mortgage at $27,872.17.
Southern Gardens, Inc., still the owner of the lands, and Connolly were made parties defendant to the foreclosure suit; there was a decree barring their equity of redemption, and the decree was followed by a sale and a deed by the sheriff to Higgons for the mortgaged one-third interest in the land.
Higgons conveyed his one-third interest to Connolly on November 30, 1925; the Association’s conveyance of its two-thirds interest was made to Connolly the following day; and she thereupon, the same day, conveyed the entire interest to Southern Gardens, Inc., and thus, on December 1, 1925, it seems to be conceded, the latter corporation by a merger of the conflicting titles indisputably became the owner of the lands in fee, subject to Higgons’ record purchase-money mortgage on the one-third interest which he had conveyed to it, through the medium of Connolly. By mesne conveyances the defendants Gallagher acquired Higgons’ title. Plaintiff in 1955 took a conveyance of the title of Southern Gardens, Inc. from its trustees in dissolution, and then came this proceeding to quiet title on the assumption that plaintiff’s title under the 1854 execution sale to Hopkins is superior to the title derived from Blakeman alone.
There is no conclusive showing here that the Blakeman title is defective and that Higgons has broken his own covenant and is himself primarily in the wrong.
Higgons was not guilty of fraud, bad faith, or misrepresentation; and there is every reason in equity and good eon-*82science for the application of the general rule that an after-acquired title inures to the benefit of the mortgagee. There is no countervailing equity.
On this ground alone, I concur in the reversal of the judgment, to the end that there be judgment final for defendants.
Weintraub, C. J., and Heher, J., concurring in result.
For reversal—Chief Justice Weintraub, and Justices Heher, Wachenebld, Burling, Jacobs, Francis and Proctor—7.
For affirmance—Hone.