Terry, C. J. concurring.

1. The Court below erred in holding that the mortgage executed on the public land, or improvements thereon, was void, because it did not follow the provisions of the Chattel Mortgage Act. That Act gave a new remedy, but did not take away the old; but, on the principle of estoppel, the mortgagor having mortgaged the land as his own property, was estopped, as are his privies in estate, from saying this is public land. The fact of his ownership, for all purposes of such foreclosure and title, is concluded by the deed, and is not admissible of dispute or question.

2. The mortgage was made by one Schiller. Afterwards, Schiller sold, subject, of course, to the mortgage, to another, and this last to another, who sold to Maier, the defendant in possession, who is now resisting the plaintiff’s claim. The plaintiff foreclosed the mortgage of Schiller, and bought at the sale. But, though Schiller, the mortgagor, was made a party, Maier, the subsequent vendee of his interest, was not.

According to rejieated decisions of this Court, (see McMillan v. Richards, 9 Cal.) a mortgage is held in this State to be merely a security for a debt. It does not pass the foe to the mortgagee, nor give him a right of entry. It only gives him a right to sell *15 in a certain event, and the title comes from the sale. Until the sale, the fee is in the mortgagor. Before the sale in this case, the fee or legal estate, clogged only with the incumbrance of this mortgage, passed to Maier.

It could not be divested by a sale of Schiller’s interest; indeed, at the time of the sale, Schiller had no interest. What is sold is not the interest of the mortgagee, but the estate of the mortgagor; if the mortgagor has parted with his estate, the holder, to be affected by a decree, must be made a party. If he is not, his rights remain as they were before, and, having the legal estate, with a right of possession until that legal estate is sold, this is a good defense to an action at law, brought to oust him of the possession.

The judgment was right on the undisputed facts, though a wrong reason was given for it. But we do not reverse for what we regard as bad logic, but for what we consider bad law.

The judgment is affirmed. But, of course, neither this affirmance, nor the judgment below, affects the right of the plaintiff to foreclose the title of Maier, and then maintain his ejectment.

Ordered accordingly.