There is no suggestion that the foreclosure was collusive, and it is admitted that the debt subsisted and payment was in default so that when the land was sold and conveyed, Mills had done nothing and averred nothing which estops him or .those claiming under *55bim in this proceeding. When the purchaser in the mortgage sale conveyed the land to Mills he acquired a title from an independent source, for by his conveyance to his children prior to the foreclosure sale he had conveyed nothing to them which he did not then own, and had made no misrepresentation about the mortgage or covenant against it.
It has been well said that “There never is an estoppel unless both parties, in a solemn manner, by deed or act, agree as to the fact and act upon such agreement, then neither can afterwards be heard to gainsay it.” Kissam v. Gaylord, 46 N. C., 294; Bryan v. Eason, 147 N. C., 284.
True, the doctrine of estoppel has been enlarged to include deeds without covenant or warranties, but only to the extent and for the purpose of protecting bona fide purchasers. But it is still an equitable doctrine, not an inflexible rule, a shield of the innocent and not a sword for destruction. Weston v. Lumber Co., 162 N. C., 165; Lumber Co. v. Cedar Works, 165 N. C., 83; Alsworth v. Cedar Co., 172 N. C., 17, and Door Co. v. Joyner, 182 N. C., 518.
If anything was said or done by Mills to his children which should estop him, the plaintiff Jackson was not a party to it, nor is he in privity with them. He does not claim by, through, or under them; that is, the .children, nor as their successor. Van Gilder v. Bullen, 159 N. C., 291.
Assuming that the plaintiff had investigated before purchasing, he would have found Hardison in possession of that part of the land conveyed to him, and Little of the remainder (the part involved in this suit), living in the house. He would have found on the tax books the land listed by Little and on the records he would have found the Hodges mortgage lawfully foreclosed and several mesne conveyances down to Little and wife, to whom he paid full value, $10,000. The plaintiff paid his money, took his deed, moved to the land, improved it, paid the taxes from year to year, and increased his investment to $15,000.
The two children who are of age disclaim any interest, and as to those who are still minors there is no title by estoppel which should avail against the plaintiff upon the facts of this ease.
This case differs from Hallyburton v. Slagle, 132 N. C., 947. In that case it was held that where a person, to defraud his creditors, conveys land and afterwards becomes a voluntary bankrupt and the trustee in bankruptcy in behalf of the creditors sells the land and the bankrupt, through another, becomes purchaser, whatever title he gets by the deed of the trustee accrues to the benefit of the original grantee. There is nothing in this case indicating any fraud, or any intention on the part of the grantor beyond a bona fide conveyance of all the interest he possessed at that time.
*56Nor is the ease of Van Rensselaer v. Kearney, 52 U. S., 323, in point, for that ease merely holds that the deed is an estoppel upon the grantor from ever afterward denying that he was seized of the particular estate at the time of the conveyance.
In this case it is not denied that the father, at the time of the conveyance, was seized of the premises, but under proceedings in foreclosure, as to which there is no allegation or evidence tending to show collusion, the property was sold, and by subsequent conveyance the title was after-wards conveyed for value to the father, a new source of title, and by sundry subsequent mesne conveyances it became vested in the plaintiff for full value and without notice of any alleged defect.
Upon facts admitted or agreed, the judgment is
Affirmed.