
    JAMES S. GLOVER ET AL. v. THE UNITED STATES.
    [No. 17908.
    Decided April 23, 1894.]
    
      On the Proofs.
    
    This is one of three suits to recover] under the act 2d March, 1891, for the loss of the same property in Beaufort hy tax sales. The question is whether the mortgagor, the mortgagee, or the assignee of the mortgage was the “legal owner” at the time of sale within the meaning of tho statute.
    I.The mortgagee of lands in Beaufort, S. 0., sold under the direst tax acts, was not the “ legal owner” within the intent of the Aet M March, 1891. (26 Stat. L., p. 822, $4.)
    II.The law of South Carolina governs in determining who was the owner of land sold for taxes in that State under the direct tax acts.
    III.'In South Carolina, as is held hy the Supreme Court of that State, a mortgagee ih not the owner of land, and a mortgage is not a' conyeyance, hut simply a contract, whereby the mortgagee obtains a lien. The laws relating to mortgages in'the different States examined and commented on.
    
      The Reporters' statement of tbe case :
    Tbe following are tbe facts of tbis case as found by tbe court:
    I. On tbe 13tb of .March, 1863, a lot in tbe town of Beaufort, designated as lot A, in block 57, on tbe United States direct-tax commissioners’ plat of said town, was sold by said commissioners under tbe United States direct tax acts to satisfy a tax assessed against it amounting, with, a penalty and interest, to $89.20. At or about the same time a plantation known as Whitehall, and containing 300 acres, was sold by the said commissioners under the said acts to satisfy a tax assessed against it amounting, with a penalty and interest, to $39.22. The said lot was assessed for taxation by the said commissioners at $7,000, and the said plantation was rated by the State of South Carolina as being usually cultivated, and was returned upon the proper tax book of the said State as containing 300 acres.
    II. Benjamin B. Bythewood, the ownerof the above-described property, executed the following bond and mortgage at the date shown therein:
    “Ti-ie State oe South Carolina:
    
      “Know all men by these presents, That I, Benjamin B. Bythe-wood, am held and firmly bound unto Mrs. Catharine B. Yer-dier, of the town of Walterborough, in the full and just sum of ten thousand dollars, to be paid unto the> said Mrs. Catha-rine B. Yerdier, her certain attorney, executors, and administrators or assigns, to which payment, well and truly to be made and done, I bind myself and each and every of my heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with my seal, and dated the first day of June, in the year of our Lord one thousand eight hundred and sixty, and in the eighty-fourth year of the Sovereignty and Independence of the United States of America.
    “The condition of the above obligation is such, that if the above-bound Benjamin B. Bythewood, his heirs, executors, or administrators, shall and do well' and truly pay, or cause to be paid, unto the above-named Mrs. Catharine B. Verdier, her certain attorney, executors, or administrators or assigns, the full and just sum of five thousand dollars on the first day of June, which will be in the year eighteen hundred and sixty-one, with interest payable annually on the whole amount unpaid from date, then the above obligation to be void and of none effect, or else to remain in full force and virtue.
    “ Ben j. B. Bythewood.” [l. s.].
    “ Sealed and delivered in the presence of—
    “Jos. Dan’l Pope.
    “I assign,the within bond to H. W. Stewart, one of the heirs of estate O. B. Yerdier.
    “ J. P. De Yeaux,
    
      “Administrator Estate of O. B. Verdier.
    
    “Witness:
    “ J. S. De Yeaux.
    “Jan. 5,186(3.”
    
      “The State oe South Carolina: >
    “ To all whom- these presents may concern, I, Benjamin BBythewood, of the town of Beaufort, in the State aforesaid; send greeting:
    “Whereas I, the said Benjamin B. Bythewood, in and by my certain bond or obligation, bearing date the first day of June, anno Domini one thousand eight hundred and sixty, stand firmly held and bound unto Mrs. Catharine B. Verdier, in the penal-sum of ten thousand dollars, conditioned for the payment of the full and just sum of five thousand dollars on the first day of June, which will be in the year one thousand eight hundred and sixty-one^ with interest payable annually on the whole amount unpaid from date, as in and by the said bond and condition thereof, reference being thereimto had, will more fully appear:
    “Now know all men that I, the said Benjamin B. Bythe-wood, in consideration of the said debt and sum of money aforesaid, and for the better securing the payment thereof to the said Mrs. Catharine B. Verdier according to the condition of the said bond; and also in consideration of the further sum of three dollars to me, the said Benjamin B. Bythervood, in hand well and truly paid by the said Catharine B. Verdier at and before the sealing and delivery of these presents,.the receipt whereof is hereby acknowledged, I have granted, bargained, sold, and released, and by these presents, do grant, bargain, sell, and release unto the said Mrs. Catharine B. Ver-dier all that plantation called ‘ White Hall,’ situate on Laders Island, in the District and State aforesaid, containing four hun - dred and sixty acres, more or less, and bounded to the north and west on Beaufort Biver, to the east on the creek and marshes of Bedford, dividing it from the plantation of Mrs. Eustice, and to the south and southeast on lands belonging to Joseph Hazel, esquire.
    
      “And also all those lots of land situateonthe town of Beaufort, making the present residence of me, the said Benjamin B. Bythewood, known upon the plan of the said town as numbers 93, 94, 95, 96, and 98, each lot containing 61 feet on their north and south lines and 120 feet on their north and south lines, and taken together the premises are bounded to the north on Craven street, to the south and east on lots 97, 99,100, and 101, and East street, and to the west on New street, together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging, or in any wise incident or appertaining; to have and to hold all and singular the said premises unto the said Mrs. Catharine B. Verdier,her heirs and assigns,forever. And I, the said Benjamin B. Bythe-wood, do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular tk e said premises unto the said Mrs. Catharine B. Verdier, her heirs and assigns, from and against me, and my heirs, executors, administrators, and assigns, and all other persons lawfully claiming or to claim the same, or any part thereof.
    “ Provided always, nevertheless (and it is true intent and meaning of the partios of these presents), That if I, the said Benjamin B. Bythewoodi do and shall well and truly pay, or cause to be paid, unto the said Mrs. Catharine B. Yerdier, her attorney, executors, and administrators or assigns, the said debt or sum of money aforesaid, with the interest thereon, if any shall be due, according to the true intent and meaning of the said bond and condition thereunder written, then this deed of bargain and sale shall cease, determine, and be utterly null and void, otherwise it shall remain in full force and virtue.
    “And it is agreed by and between the said parties that Benjamin B. Bythewoocl shall continue to hold and enjoy the said premises until default of payment shall be made.
    “ Witness my hand and seal this first day of June, in the year of our Lord one thousand eight hundred and sixty, and in the eighty-fourth year of the Sovereignty and Independence of the United States of America.
    [SEAL.] “BENJ. B. ByTHEWOOD.
    “ Signed', sealed, and delivered in the presence oí—
    “ Jos. DaN’l Pope.
    “ S. T. Baker.»
    III. On the fall of Port Boyal and its occupation by Union troops in November, 1861, Bythewood left St. Helena Island (as did all the population of those islands) and never returned.'
    IY. The property mortgaged at the time of the sale was worth much more than the amount of the mortgage debt.
    Y. Catharine B. Verdier died intestate, and all her property descended to her sister, Elvira O. Glover,, who died intestate in July, 1865, and left as her distributees her daughter Cath-arine J. Stewart; her son James S. Glover, and the widow and children of a predeceased son, viz, Margaret A. Glover, the widow, and James B. Glover, Ann E. Glover, Katy Paul Glover, and Florence Spencer Glover, the children.
    YI. No part of said lands has been redeemed or repurchased save 155 acres of said plantation. Surplus proceeds have been received in respect of said sales in the sum of $145.82.
    The account is thus stated:
    One-lialf assessed value of said lot. $3, 500.00
    Five dollars an aere on 145 acres. 725.00
    4,225.00
    Less taxes, etc.r $127.42
    Less surplus proceeds:. 145.82
    - 273.24
    3,951.76
    
      
      Mr. James Lowndes for the claimants:
    If the effect of the mortgage was to be considered by the rules of the common law, the case would admit of no doubt whatever. The difficulty in it arises entirely from the Act of Assembly of the State of South Carolina of 1791, (5 S. L., 170), which provides as follows:
    “That no mortgagee shall be entitled to maintain any possessory action for the real estate mortgaged even after the time allowed for the payment of the money secured by the mortgage is elapsed, but the mortgageor shall be still deemed the owner of the land, and the mortgagee as the owner of the money loaned or due, and shall be entitled to recover satisfaction for the same out oí the .land in the manner herein set forth: Provided that, notwithstanding the foregoing provision, all releases of the equity of redemption shall be binding and effectual in law, and said provisions shall not apply when the mortgageor shall be out of possession.”
    The courts of South Carolina have had great difficulty in defining exactly the rights of the mortgagee under this statute. It will be seen that it derogates from the common-law rights of a mortgagee only when the mortgagor is in possession. A mortgagor out of possession stands exactly as the mortgagor at common law.
    In the present case the mortgagor was not in possession, i. e., did not have pedis possessio at the time of sale, and the court must pass upon the question whether or not he was out of possession within the meaning of this statute. There have been several cases in the courts of South Carolina in which the common-law right of the mortgagee as against the mortgagor out of possession has been maintained. (Durand v. Isaacs, 4 McCord, 54; Mitchell v. Bogan, 11 Kicliardson, Law, 686; Warren v. Raymond, 17 South Carolina, 200 — (1882).
    In all these cases, however, the mortgagor, after mortgage made, had conveyed to third parties, and none of them present a case exactly like the present one, where the possession was merely vacant.
    In the case last cited (Warren v. Raymond) it was held that where a mortgage contained a covenant that the mortgagee might enter and take possession on default and the mortgagee exercised this power, the mortgageor was out of possession and the mortgagee was the owner of the legal fee simple. £t will be observed that in the present case the mortgageor covenanted that he was to retain possession only until default, and it may fairly be argued that the inténtion of tbe parties was that the right of possession was to accrue to the mortgagee on default. The default in this case occurred long before the sale.
    There is very little to distinguish the right of a mortgagee under such a mortgage as that proved in this case from a common-law mortgage. The moment the mortgagor is out of possession he becomes a mortgagee in the fullest common-law sense. With such a covenant as is embodied in this mortgage he had the right of entry on default.
    The Act of Assembly of 1791 (5 S. L., 311), provides “ that a release of the equity of redemption by a mortgagor should, have the same effect as if the act of 1791 had never been enacted,” recognizing thereby the legal quality of the mortgagee’s estate. So on default a mortgagor is entitled to a receiver of rents and profits. Matthew v. Preston, 6 Richardson, 311.
    In view of these authorities, it can be fairly argued that the court would be justified in holding that on the facts of this particular case Mrs. Verdier was in the strictest technical sense the owner in fee simple of the land in question.
    But if the estate of Mrs. Yerdier under her mortgage was something less than a complete fee simple, it was still an estate which made her the owner of the land within the meaning of the act of March 2,1891. This seems to be well settled by the course of judicial decision.
    The case of the United States v. Villalonga (23 Wallace, 335), goes much further, holding that a person vested with qualified ownership is an owner.
    In the case of Merryioeather v. The United States (13 C. Cls. B., 267) the question again arose how far a mere qualified right in property constitutes the person vested with such right an owner within the meaning of the Captured and Abandoned Property Act. In that case the husband had conveyed the property to his wife. The conveyance was void at common law, which was the law of Tennessee at that time. But such a conveyance, under the principles of equity as enforced in Tennessee, did convey an equitable right to the wife, and this court held she was an owner by virtue of such a right within the.meaning of the Captured and Abandoned Property Act.
    In the case of Gamp v. The United, States (15 C. Cls. R., 469) the question was raised whether one who had an agreement for a share of certain cotton was an owner within the meaning of the captured and abandoned property act. The court said (p. 488) “ It is not necessary for the purposes of this decision to hold that the present claimant acquired by his ratified agreement an interest or special property in the cotton which constituted him an owner within the meaning of the Captured and Abandoned Property Act, although the decision in Yilla-lougar holding that a factor’s lien was a special property upon which the factor could maintain a suit as owner for his interest in the proceeds, would go far to justify such a conclusion.”
    These cases have settled the law that the word “ owner ” in a statute like this is not to be taken in its strict technical sense, meaning the person with the absolute dominion. The true principle is that the owner is the person who has the beneficial interest, even where that interest is a qualified one and less than the value of the whole dominion.
    None of the parties in the cases just cited had so large an estate, or estate in any way so nearly approaching absolute ownership as the claimant in the present one.
    This construction of the word “ owner ” is in accordance with the accepted principles of interpretation. It is a canon of interpretation that all words, if they be general and not precise, are to be restricted to the fitness of the matter. They are to be considered as particular, if the intention be particular— that is, they must be understood and used in reference to the subject-matter in the mind of the legislature and strictly limited to it. (English, 86.)
    So the word owner has been construed to mean one having a less estate than fee. (Sehoffv. Improvement Go., 57 N. H., 110).
    A tenant may be an owner. (Pa. B, B. v. Rvy 107 Pa., 166). See also Gamp v. Bogers, 44 Conn., 291; Proetor v. Bailroad Go., 64 Mo., 112); Poggett v. Gattarns, (34 L. J. O. P., 46).
    In addition to the cases already cited attention is asked to the case of Bogers v. The-United States (21 O. Cls. B.., p. 130), in which it was held that a mortgageor is the “owner” within the meaning of that word as used in the thirty-sixth section of the direct tax act of August 5, 1861, relating to the refunding of surplus proceeds.
    
      Mr. W. S. Monteith was heard for the Bythewood heirs, adverse claimants.
    
      Mr. George R. Gorman (with whom was Mr. Assistant Attor-torney-General Podge) for the defendants:
    
      The mortgage is drawn in the ordinary common-law form, it is true, and if construed under the doctrine of the English law the mortgagee would he the owner of the fee, and the mortgagor the owner of an equity of redemption only. But this doctrine has never obtained in the United States to any appreciable extent.
    In this country a mortgage is almost universally regarded as merely creating a lien or incumbrance upon the land, the legal estate remaining in the mortgagor until foreclosure or other process of law, which is the method adopted of applying the security to the payment of the debt. And this is what a mortgage is — a security for the payment of a debt — and I do not think it ever loses that character, even after condition broken, until after the property is actually sold and conveyed to thepurcliaserunder foreclosure proceedings. (Jones on Mortgages, sec. 099, 070, et seq. Rodgers Case, 210. Ols. R., 131.) And such is the settled doctrine of South Carolina. (Hardin v. Hardin, 34 So. Oa., 77.) But see point 3.
    2. Is the term “owner,” as used in the act of March 3,1891, sufficiently comprehensive to embrace the interest of a mortgagee?
    Under the doctrine laid down by this court on page 132 of the opinion in Rodgers’s Case (21 C. Ols. R., 130), it would seem that the term “ owner ” in such statutes must be held to mean not only the legal proprietor or possessor of the fee, but all persons who possess any interest in or title to the property; and in Rlliott’s Case (20 C. Cls. R., 328) it was held that where a legacy had been decreed to be a charge upon land which was sold for taxes prior to the decree, the lien was transferred from the land to the proceeds thereof, and that the legatee might maintain an action for the surplus as u owner ” Avithin the meaning of the direct tax act of 1862-’63. (See also Guthbert’s Case (20 O. Ols. R., 172), where it is held that the term “owner” iu the act of August 5, 1861, embraces every person who has an estate in the realty. It is true that a mortgagee has no “ estate ’> in the land in the ordinary acceptation of that term, but he has an interest in it for the payment of his debt, and he is entitled to have the property remain secure and undepreciated for that purpose — certainly so far as it is within the power of the mortgageor to afford such protection; and if the mortgageor permit the property to be sold for taxes and the mortgagee’s lien is thereby lost, does not the lien of the mortgage attach to the surplus proceeds, and may not the mortgagee sue for such surplus as “ owner,” just as was done in the Elliott Case (20 C. Cls. B., 328) and recognized in Rodgers’ Case (21 C. Ols. B., 130) ?
    3. Did the sale for taxes operate to defeat the mortgagee’s lien entirely or only pro tanto — allowing the lien to attach to the surplus proceeds'?
    It is a general principle of mortgage law that the party in possession is charged with the duty of keeping the taxes paid. A mortgageor in possession can not commit waste upon the land, nor impair the value of the security; and if he allows the property to be sold for taxes, he thereby permits the security to be destroyed, and the surplus — which after all is but a fragment of the security — is properly chargeable with the lien of the mortgage. Such is the doctrine of this court. (Rogers’s Case, 21 C. Ols. B., 130; Cuthbert’s Case, 20 C. Cls. B., 172; Elliott’s Case, 20 id., 328.)
    It is true that the act of March 3,1891, requires that the surplus in these cases shall be paid to the owner of the land at the time of sale, his heirs, etc. But Bythewood only “owned” this land subject to the lien of the mortgage; and when by his neglect this security is destroyed, does not the lien attach to the surplus proceeds, so that Bythewood could only own the surplus proceeds as he did the land — subject to the lien of the mortgage — and would he be entitled to anything until the lien of the mortgage was first discharged1?
   Weldon, J.,

delivered the opinion of the court:

This is a proceeding to recover, under the provisions of the Act of Mar eh 2,1891, chapter 496 (26 Stat. L., 822), compensation for certain lands sold in the State of South Carolina under said act, and involves the question as to who is entitled to recover, the mortgageor or mortgagee.

Prior to the war Benjamin B. Bythewood, then the owner of the property in question, mortgaged it to Mrs. Catharine B. Yerdier to secure a loan of $5,000. Mrs. Yerdier died intes- ' tate, and all her property descended to her sister, Elvira Glover, who died intestate in July, 1865, leaving as her distributees her daughter Catharine J. Stewart, her son James S. Glover, and the widow and children of a predeceased son. In January, 1866, tbe administrator of Mrs. Verdier assigned tbe bond to secure wbicb tbe above-mentioned mortgage was given to H. W. Stewart, stated to be one of tbe beirs of C. B. Verdier, There are now filed in tbis court three petitions for a recovery-under the direct tax act of 1891, one on behalf of tbe mort-gageor, By tbe wood, one on behalf of tbe beirs of Mrs. Verdier, and one on account of tbe assignee of tbe bond. These cases have been tried together, and tbis opinion decides them all.

The rights of tbe litigants turn upon tbe construction of tbe statute as to tbe character of ownership wbicb entitles a party to tbe benefits of tbe law. Tbe provision of tbe statute is as follows:

“ Sec. 4. That it shall be the duty of tbe Secretary of tbe Treasury to pay to such persons as shall in each case apply therefor, and furnish satisfactory evidence that such applicant was at tbe time of tbe sale hereinafter mentioned tbe legal owner, or is tbe heir at law, or devisee of tbe legal owner, of such lands as were sold. * # *
“ To tbe owners of tbe lots in tbe town of Beaufort one-half of tbe value assessed thereon for taxation. * * *
“To tbe owners of lands wbicb were rated for taxation * * * five dollars to tbe owner of all other land one dollar per acre: Provided, That in all cases where such owners, or persons claiming under them, have redeemed or purchased said land, * * * they shall not receive compensation for such parts so redeemed or purchased; and any sum or . sums held * * * in trust for any such owner under section 3 of this act shall be deducted from tbe sum due such owner under tbe provisions of tbis section.”
■ Tbe person receiving tbe same is to “ execute a release of all claims and demands of every kind and description whatever against tbe United States arising out of tbe execution of said acts, and also a release of all right, title, and interest in and to tbe said lands.”

Tbe issue is to be settled by a construction of tbe word “legal owner” as found in tbe first part of section 4. It is true that tbe word owner occurs in other parts of tbe section without the qualifying word legal, but not by way of definition. Tbe word owner, as used in tbe subsequent clauses of tbe statute, is to define tbe quantity of value wbicb is to be paid and not tbe quality of tbe taker. Tbe phrase “such owner,” as used in tbe provisos of said section, must refer to tbe classification of persons to whom tbe grant is made in tbe first part of the section. The grant as to the quality of the taker is not to be controlled by the phraseology of the act providing simply as to the quantity. One describes persons and the other, by way of measurement, refers to persons simply to designate the quantity to which the party is entitled.

This is a controversy, as has been said, between the mort-gageor and the mortgagee, as to who is entitled to recover under the statute. It is insisted upon the part of the heirs of Bythe-wood that, as the legal estate was in their ancestor at the time of sale, they are the parties entitled to recover. Upon the other hand, it is insisted upon the part of the heirs of Verdier that they are the heirs of the owners of the beneficial or equitable estate, and are therefore entitled to recover; that the statute gives the money to the person who in equity is entitled to it, as contradistinguished from a party who claims in and through a mere legal title. In this connection it becomes necessary for us to inquire and determine, what was the interest of a mortgagee in land in the State of South Carolina at the time of sale and when the law of 1891 was enacted.

At common law by the terms and operation of a mortgage the legal title passed to the mortgagee. In Walker’s Introduction to American Law it is said:

“They are pledges to secure the payment of money; and in the present wide extension of credit they form one of the most frequent subjects of judicial cognizance. The law which governs them is the common law, modified by a very few statutory provisions. Of the derivation of the word mortgage, Blackstone gives, in substance, this account: Vivwn vadium, or living pledge, is when a debtor pledges land to his creditor, to hold until the debt is paid out of the rents and profits: this is likewise called a Welsh mortgage. Mortuum vadium, dead pledge, or mortgage, is where a debtor actually conveys land to his creditor upon condition that the conveyance shall be void if the debt be paid at a given time; but otherwise shall be absolute. In the former case, which now rarely if ever occurs, the debtor still retains a subsisting title to the land, though encumbered by the debt to be paid from the rents and profits. In the latter case, which is that of the common mortgage, the debtor, by the terms of the conveyance, retains no subsisting title; and therefore the pledge is said to be dead, though in fact, as we shall see, the law still gives him a subsisting interest not warranted by the-terms of the conveyance.” (Walker, American Law, p. 33.)

Not only have courts of equity cliangecl the legal character of a mortgage, but the legislatures of many of the States have passed laws materially modifying the estate of the parties to a mortgage. We have taken occasion to look into the legislation of the different States of the Union, and find that in more than one-half of them the rule of the common law is changed, and the mortgagee is not the owner of the legal estate, but the possessor of an equitable estate or lien, which he can make available through the medium of a court of chancery. The law of the State of South Carolina is to be applied in determining the rights of the parties in the land at the time of sale, and the consequent right of recovery in this proceeding. “ The law of real property is the law rei siti, and the Federal courts, in matters of realty, follow the decision of the courts of the several States.” (Rodgers v. United States, 21 C. Cls. R., 133.)

That being the law, it becomes important for us to ascertain the law of real property in the State of South Carolina. As early as the year 1701 the legislature of that State passed a statute, which continued until 1S79, as follows:

“No mortgagee shall be entitled to maintain any possessory action for real estate mortgaged even after the time allowed for the payment of the money secured by the mortgage has elapsed, but the mortgageor shall be deemed the owner of the land and the mortgagee as owner of the money lent, or due, and shall be entitled to recover satisfaction for the same out of the land by foreclosure and sale according to law: Provided, That, notwithstanding the foregoing provisions, all releases of the equity of redemption shall be binding and effectual in law, and said provisions shall not apply when the mortgageor shall be out of possession.”

The statute has been the subject of judicial construction for many years, and in the case of Hardin v. Hardin (34 So. Ca.) it is said:

u It is well settled in this State that by the act of 1791, as it has been construed in many decisions, which are so well known to the profession as to render it unnecessary to cite them, the relation of mortgageor and mortgagee is totally different from that which existed at common law. ' By our law a mortgage of real estate is not a conveyance of any estate whatever, but is simply a contract, whereby the mortgagee obtains a lien on the property mortgaged, as a security for the payment of the debt; the mortgageor still remains, even after the condition is broken, tbe owner of tbe mortgaged premises, and retains all tbe rights incident to snch ownership, among which is the right to receive the rents and profits, while the mortgagee simply holds a lien npon the property to secure the payment upon his mortgage, which he may enforce in any of the methods recognized by law, but having no title to the ownership of the mortgaged premises, he can not claim any of the rights incident to such relation; his rights are limited by the terms of the contract as found in the mortgage, and by that contract he simply has a lien upon the mortgaged premises, and that he may enforce in any proper way.”

In order to relieve the mortgagor against the consequence of the estate becoming absolute, the courts of equity at a very early day decided that the mortgagor might redeem the estate upon the payment of the debt and interest, provided this were done within the period allowed for bringing an action of ejectment, and this is the origin of the right of the equity of redemption. But inasmuch as this condition of the law kept the estate in doubt for many years, the courts of equity interfered in the interest of the mortgagee, and originated the equitable proceeding of foreclosure, the effect of which was to settle the estate of the moxtgageeupon such terms as were equitable and just. The State of South Carolina seems to be one of the States which.at a very early day changed the common law by a statute, in which it is provided “that the mortgagor shall be deemed the owner of the land, and the mortgagee of the money lent or due, and shall be entitled to recover satisfaction for the same out of the land by foreclosure according to law.” By the provisions of this statute the mortgagor is the owner of the land and the mortgagee of the money. It is very difficult to determine what estate, if any, is inherent in the mortgagee under the terms of the statute. The right to satisfaction by foreclosure is the recognition of a lien on the land, as an incident of the debt, not amounting to the dignity of an estate. Strictly and philosophically speaking, the lowest form of a right in land must be an estate, which is defined to be “ The degree, quantity, nature, and extent of an interest which a. person has in real property.” (Bouvier’s Law Dictionary, Estate, p. 605.)

Under the statute the Supreme Court of South Carolina has decided: “By our law a mortgage of real estate is not a conveyance of any estate whatever, but is simply a contract, whereby the mortgagee obtains a lien on the property mortgaged as a security for” payment of a debt.” Assuming this decision as the correct expression of the law in the construction of the statute, no interest in the land which can be denominated ownership passed to the mortgagee. It evidently was the purpose of the legislature, as construed by the Supreme Court, to abolish and destroy whatever interest, either of a legal or equitable character, the mortgagee may have had at common law in the mortgaged premises, and reduce his rights to a mere chose in action, in the form of a lien, to be enjoyed and pursued not as an interest in land, but as a mere incident of the debt.

The statute providing, as it does, in relation to the rights of the parties, if the mortgagee has any interest in the land it must be the lowest possible form of an estate. Can he be said to be in any view of the law a legal or equitable owner? The two great divisions of estates in lands, as defining the quality, are legal and equitable, the one, representing the ownership, being seized of the property, the other representing a use or beneficial interest. When courts and legislatures speak of the different estates, it is well understood what is meant, and in construing statutes we are not at liberty to include the one and exclude the other by mere construction. The legislative intent enacted within the terms and spirit of the constitution is the highest and most authoritative form of legal expression) and courts must follow that intent whithersoever it leads, irrespective of consequence and results.

The Supreme Court, on the subject of construction, quotes with approbation the following from one of the distinguished authors on the law:

“But Vattel’s first general maxim of interpretation is that <it is not allowable to interpret what has no need of interpretation,’ and he continues: ‘When a deed is worded in clear and precise terms — when its meaning is-evident and leads t'o no absurd conclusions — there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures, in order to restrictor' extend it, is but to elude it.’ (Vattel’s Law of Nations, 244.) Here the words are plain and interpret themselves. (Ruggles v. Illinois, 108 U. S., 534.)
“But all these rules are understood to be subject to the qualification that, where the language is free from ambiguity, leads to no absurdity, and hence needs no interpretation, nothing beyond it can be regarded. (Endlich, Interpretation of Statutes, sec. 27. Ezekiel v. Dixon, 3 Ga., 140.)”

The term legal owner is a classification of ownership well known to the law, and excludes estates and interests of a mere equitable character, or liens incident to property because of a debt.

Assuming the decision of the Supreme Court of the State of South Carolina in the construction of the statute upon the subject of the rights of mortgagor and mortagee as the law defining the interest of the parties in the land at the time of sale, the conclusion is inevitable that the mortgagor was the “legal owner” at the time of the sale, and being such, his rights are superior under the act of Congress to the right of the mortgagee. The land at the time of sale was worth much more ■ than the amount of mortgage, and by the sale the mortgagor lost largely in excess of the mortgagee. The judgment of the court is that the petition be dismissed.  