Woods, J.
It appears from the case that Jeremiah Herrick, on the 28th day of March, 1836, was seized in fee of the premises demanded in this action, and on the same 28th day of March, Thomas Frink executed to the tenant a deed of mortgage of the same land, with warranty, to secure the payment of his note to the tenant. On the 20th day of December, 1836, said Thomas Frink also executed a deed of mortgage of the demanded premises to the demandant, and at the same time Herrick, who held the title, executed a deed of conveyance of it to Frink, in pursuance of his bond previously given to execute said deed of conveyance. - At the time of the execution of the deed of mortgage from Frink to the demandant, the demandant had knowledge of the execution of the aforesaid deed of Frink to the tenant. The demandant, then, stands charged with actual notice of the prior mortgage to the tenant at the time when he took his deed of mortgage from Frink.
The first and most important question which is raised by the facts of this case is, what was the operation of the deed of Herrick to Frink, and to whose benefit did it enure ?
[395]*395It is a principle of law, not now open to doubt, that ordinarily, if one who has no title to lands, nevertheless make a deed of conveyance thereof with warranty, and afterwards himself purchases and receives the title, the same will vest immediately in his grantee who holds his deed with warranty, as against such grantor, by estoppel. In such case the estoppel is holden to bind the land, and to create an estate and interest in it. The grantor in such case, being at the same time the warrantor of the title which he has chosen to assume the right to convey, will not in a court of justice be heard to set up a title in himself against his own prior grant —he will not be heard to say that he had not the title at the date of his conveyance, or that it did not pass to his grantee in virtue of his deed. Somes vs. Skinner, 3 Pick. 52; Jackson vs. Stevens, 16 Johns. R. 110, and Kimball vs. Blaisdell, 5 N. H. Rep. 533, are cases fully sustaining this view of the doctrino of estoppel as against the grantor with warranty. And the doctrine is equally well settled, that the estoppel binds not only the parties, but all privies in estate, privies in blood, and privies in law. 5 N. H. Rep. 533, and the auth. there cited; Trevivan vs. Lawrence & al., 1 Salk. 276; Fairbanks & al. vs. Williamson, 7 Greenl. R. 96; White vs. Patten, 24 Pick. 324; Co. Litt. 352, a. The deed of conveyance, then, of Herrick to Frink, immediately upon its execution operated a conveyance of the land in controversy to the tenant, by way of estoppel, in virtue of the deed and of the covenant of warranty in the deed of Frink to the tenant, both as against Frink and the demand-ant. The conveyance of the title by the deed of Herrick to Frink, after the execution of the mortgage of Frink to the tenant, turned the estoppel, which bound Frink, the warrant- or, and his heirs and assigns, into a good estate in fee and in mortgage, so that by operation of law the same interest and estate vested in the tenant as if the estate had been conveyed to Frink before his conveyance to the tenant. At least, such must be the legitimate operation of the rule of [396]*396law under consideration, upon the rights and interests of the parties in this controversy, unless the circumstances of this case form an exception to the general rule, or forbid its application.
It has been urged, on the part of the demandant, that he paid for the land, and therefore has at least the superior equitable claim to hold the land as against the tenant, and, moreover, that Frink was a mere instrument of conveyance in the transaction. But the demandant, upon the facts of this case, is not entitled to be regarded as having purchased and paid for the land. The case shows nothing more than an advance of money by him, and the taking of security for the same by way of mortgage. This we think is the true construction of the transaction, as found by the case. The title by the deed from Herrick was not designed to pass to Frink in trust for the demandant. Frink was not designed to be a mere instrument of conveyance to the demandant, and as against him he in fact received a perfect title, which, for aught that appears, he might have retained. Frink did not receive the title from Herrick upon any agreement to hold it in trust for the demandant, nor did the circumstances attending the conveyance create any such trust.
The tenant’s mortgage was of a date prior to that of the demandant, and was given to secure a just debt due to him; and the demandant had full knowledge of the existence of that mortgage at the time when he made the advance of his money, and took the security by way of mortgage. It therefore hardly seems to us, that it lies well with the demandant to say, that he has the superior equity in the case.
Perhaps if the purchase had in fact been made by the demandant, and the consideration had been paid by him, those facts might have distinguished the case from those in which the doctrine of estoppel has been applied. The doctrine of estoppel is based entirely on equitable considerations, and was adopted with a view to the promotion of the ends of justice. If the reason for the application of the principle [397]*397should plainly fail in a particular case ; if plain injustice would be the result of its application, I am not prepared to say that the court would in any such case feel obliged to apply the rule in manifest violation of the purposes of its adoption. In the adoption and application of the doctrine of estoppel, it is manifest that courts have looked beyond the mere forms of conveyance, sought for substantial justice and the means of its promotion, and in a large class of cases found those means in the very convenient principle of estoppel. I am not aware that the principle of estoppel has ever been applied in a case in which the estoppel has been set up in virtue of a conveyance with warranty of him who after-wards received only a trust estate in the land attempted to be conveyed by him. In such case, there would clearly be wanting the great principle of equity, which so manifestly lies at the foundation of the doctrine of estoppel; and I think the court would struggle hard against the application of the principle in a case in which such clear injustice would be the result.
And, indeed, in the case of Runlet vs. Otis, 2 N. H. Rep. 167, where D. conveyed land to L., merely for the purpose of enabling L. to convey the same land to O., who had purchased and paid D. for the land, and L. did at the same time execute a conveyance of the land to O., it was decided that the conveyance from D. to L. could not enure to the benefit of persons claiming the land under a mortgage of prior date from L. to them. The language employed by Mr. Ch. Jus. Richardson, in pronouncing the judgment of the court in that case, was thus: “ As the tenant paid Durrell the amount due to him, and Durrell conveyed to Samuel Langley merely to enable him to convey to the tenant, Samuel Langley must be considered merely as an instrument, and a conveyance to him as such cannot enure to the benefit of these demandants. Those conveyances were in no wise prejudicial to the demandants,” the mortgagees. It is plain that in that case the judgment of the court was influenced, and perhaps it may be said with propriety, was wholly governed by the [398]
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Woods, J.
It appears from the case that Jeremiah Herrick, on the 28th day of March, 1836, was seized in fee of the premises demanded in this action, and on the same 28th day of March, Thomas Frink executed to the tenant a deed of mortgage of the same land, with warranty, to secure the payment of his note to the tenant. On the 20th day of December, 1836, said Thomas Frink also executed a deed of mortgage of the demanded premises to the demandant, and at the same time Herrick, who held the title, executed a deed of conveyance of it to Frink, in pursuance of his bond previously given to execute said deed of conveyance. - At the time of the execution of the deed of mortgage from Frink to the demandant, the demandant had knowledge of the execution of the aforesaid deed of Frink to the tenant. The demandant, then, stands charged with actual notice of the prior mortgage to the tenant at the time when he took his deed of mortgage from Frink.
The first and most important question which is raised by the facts of this case is, what was the operation of the deed of Herrick to Frink, and to whose benefit did it enure ?
[395]*395It is a principle of law, not now open to doubt, that ordinarily, if one who has no title to lands, nevertheless make a deed of conveyance thereof with warranty, and afterwards himself purchases and receives the title, the same will vest immediately in his grantee who holds his deed with warranty, as against such grantor, by estoppel. In such case the estoppel is holden to bind the land, and to create an estate and interest in it. The grantor in such case, being at the same time the warrantor of the title which he has chosen to assume the right to convey, will not in a court of justice be heard to set up a title in himself against his own prior grant —he will not be heard to say that he had not the title at the date of his conveyance, or that it did not pass to his grantee in virtue of his deed. Somes vs. Skinner, 3 Pick. 52; Jackson vs. Stevens, 16 Johns. R. 110, and Kimball vs. Blaisdell, 5 N. H. Rep. 533, are cases fully sustaining this view of the doctrino of estoppel as against the grantor with warranty. And the doctrine is equally well settled, that the estoppel binds not only the parties, but all privies in estate, privies in blood, and privies in law. 5 N. H. Rep. 533, and the auth. there cited; Trevivan vs. Lawrence & al., 1 Salk. 276; Fairbanks & al. vs. Williamson, 7 Greenl. R. 96; White vs. Patten, 24 Pick. 324; Co. Litt. 352, a. The deed of conveyance, then, of Herrick to Frink, immediately upon its execution operated a conveyance of the land in controversy to the tenant, by way of estoppel, in virtue of the deed and of the covenant of warranty in the deed of Frink to the tenant, both as against Frink and the demand-ant. The conveyance of the title by the deed of Herrick to Frink, after the execution of the mortgage of Frink to the tenant, turned the estoppel, which bound Frink, the warrant- or, and his heirs and assigns, into a good estate in fee and in mortgage, so that by operation of law the same interest and estate vested in the tenant as if the estate had been conveyed to Frink before his conveyance to the tenant. At least, such must be the legitimate operation of the rule of [396]*396law under consideration, upon the rights and interests of the parties in this controversy, unless the circumstances of this case form an exception to the general rule, or forbid its application.
It has been urged, on the part of the demandant, that he paid for the land, and therefore has at least the superior equitable claim to hold the land as against the tenant, and, moreover, that Frink was a mere instrument of conveyance in the transaction. But the demandant, upon the facts of this case, is not entitled to be regarded as having purchased and paid for the land. The case shows nothing more than an advance of money by him, and the taking of security for the same by way of mortgage. This we think is the true construction of the transaction, as found by the case. The title by the deed from Herrick was not designed to pass to Frink in trust for the demandant. Frink was not designed to be a mere instrument of conveyance to the demandant, and as against him he in fact received a perfect title, which, for aught that appears, he might have retained. Frink did not receive the title from Herrick upon any agreement to hold it in trust for the demandant, nor did the circumstances attending the conveyance create any such trust.
The tenant’s mortgage was of a date prior to that of the demandant, and was given to secure a just debt due to him; and the demandant had full knowledge of the existence of that mortgage at the time when he made the advance of his money, and took the security by way of mortgage. It therefore hardly seems to us, that it lies well with the demandant to say, that he has the superior equity in the case.
Perhaps if the purchase had in fact been made by the demandant, and the consideration had been paid by him, those facts might have distinguished the case from those in which the doctrine of estoppel has been applied. The doctrine of estoppel is based entirely on equitable considerations, and was adopted with a view to the promotion of the ends of justice. If the reason for the application of the principle [397]*397should plainly fail in a particular case ; if plain injustice would be the result of its application, I am not prepared to say that the court would in any such case feel obliged to apply the rule in manifest violation of the purposes of its adoption. In the adoption and application of the doctrine of estoppel, it is manifest that courts have looked beyond the mere forms of conveyance, sought for substantial justice and the means of its promotion, and in a large class of cases found those means in the very convenient principle of estoppel. I am not aware that the principle of estoppel has ever been applied in a case in which the estoppel has been set up in virtue of a conveyance with warranty of him who after-wards received only a trust estate in the land attempted to be conveyed by him. In such case, there would clearly be wanting the great principle of equity, which so manifestly lies at the foundation of the doctrine of estoppel; and I think the court would struggle hard against the application of the principle in a case in which such clear injustice would be the result.
And, indeed, in the case of Runlet vs. Otis, 2 N. H. Rep. 167, where D. conveyed land to L., merely for the purpose of enabling L. to convey the same land to O., who had purchased and paid D. for the land, and L. did at the same time execute a conveyance of the land to O., it was decided that the conveyance from D. to L. could not enure to the benefit of persons claiming the land under a mortgage of prior date from L. to them. The language employed by Mr. Ch. Jus. Richardson, in pronouncing the judgment of the court in that case, was thus: “ As the tenant paid Durrell the amount due to him, and Durrell conveyed to Samuel Langley merely to enable him to convey to the tenant, Samuel Langley must be considered merely as an instrument, and a conveyance to him as such cannot enure to the benefit of these demandants. Those conveyances were in no wise prejudicial to the demandants,” the mortgagees. It is plain that in that case the judgment of the court was influenced, and perhaps it may be said with propriety, was wholly governed by the [398]*398equitable considerations arising upon the facts of the case. Langley was regarded as a mere instrument of conveyance, and was neither invested nor intended to be invested with any interest in the land, beyond a mere power or right to convey the title to Otis.
The equitable ground, however, distinguishing this from the ordinary case, upon which the learned counsel for the demandant urged a recovery, if it might avail his client, is not found by us, as already suggested, upon this case ; and for that reason it becomes unnecessary to express any definite opinion upon the ground of distinction suggested.
. The objection taken at the trial, for the alleged insufficiency of the description of the land in the deed of Frink to the tenant, has not been urged in argument at this time, and if it had been insisted upon, could not have been sustained. The language of the deed was sufficiently descriptive of the land intended to be conveyed.
The want of an acknowledgment of the deed of Frink to the tenant can form no objection to its validity as against this demandant. He, at the time of receiving his deed from Frink, had actual notice of the existence of Frink’s deed to the tenant; and by reason of that fact, under the other circumstances of the case, this objection cannot prevail, and the title of the demandant is postponed to that of the tenant. It is well settled, that an acknowledgment is in no wise essential to the validity of a deed, as against the grantor and his heirs who are chargeable with the knowledge of the existence of the deed, nor as against any other person with notice of the deed. The whole office of an acknowledgment is the verification of the due execution of the deed, so far forth as to authorize its record in the registry of deeds, and to render the record so far authentic as to be effective as a proper and legal notice of the existence of the deed. Montgomery vs. Dorion, 6 N. H. Rep. 250, and authorities there cited.
Upon the whole, we see no ground upon which the demandant’s action can be maintained.
[399]*399According to the provisions of the case, therefore, the judgment of the court is, that the
Verdict must be set aside, and judgment be entered for the tenant.