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Opinion of the Court.

would have to pay to those legal owners might and probably would be much in excess of the sums which the government had actually received, so that in numerous cases there would be a pure gratuity on the part of the government to those owners. The language would have to be very plain to call for such a construction of the last proviso in section 4 as would give in addition to a gratuity a still further sum amounting to the surplus received by the government over and above the amount of the tax levied upon the property sold. The fact that there were lands sold in other parishes than those named, in the State of South Carolina, and also lands lying in other States, furnishes a rational and proper foundation for the last proviso in section 4 of the act of 1891, without construing it to involve these owners who had already been specially provided for. There is full opportunity thus given for the application of the clause in question to other landowners without including within its benefits the owners of those lands who had already been particularly mentioned and provided for by other clauses in the same section. It is true that if the language used in that last clause be given its widest and broadest application it would include all owners of real estate which had been sold in any portion of the country under the provisions of the direct tax act. But we think a perusal of the whole act prevents our giving this unlimited construction, because to do so would conflict with what we think was the intention of Congress, gathered from the provisions of the whole act. Under such circumstances it is not only the right but it is the plain duty of the court to limit by a proper construction the otherwise boundless application of the general language used in the statute. As was said by Mr. Chief Justice Taney: "It is undoubtedly the duty of the court to ascertain the meaning of the legislature from the words used in the statute, and the subject-matter to which it relates; and to restrain its operation within narrower limits than its words import if the court are satisfied that the literal meaning of its language would extend to cases which the legislature never designed to embrace in it." Brewer v. Blougher, 14 Pet. 178, at 198; Petri v. Commercial National Bank of Chicago, 142 U. S. 644, 650.

Counsel for Parties.

It is true that, in the first case cited, the court refused to limit the application of the statute as contended for by one of the parties to the controversy, but such refusal was based on the view of the statute taken by the court, which was that the intention of the legislature was not so plainly within the contention of counsel as to permit of the limitation in that case. The rule for the construction of a statute and of the duty of the court was given as above stated.

In this case we think the intention of Congress was plain, and that the general language of the last clause of section 4 should not be held to include the class of owners of lands mentioned in the first clause of the same section, for whose case special provision was therein made. We think that the construction given by the Court of Claims to the statute of 1891, as set forth in its opinion in Sams v. United States, 27 C. Cl., supra, was correct, and its judgment in this case should, therefore, be

Affirmed.

GLOVER v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 140. Argued November 3, 1896.- Decided November 30, 1896.

A mortgage creditor, who was such at the time of the sale of real estate in South Carolina for non-payment of taxes to the United States under the tax acts of 1861, is not the legal owner contemplated by Congress in the act of March 3, 1891, c. 496, as entitled to receive the amount appropriated by that act in reimbursement of a part of the taxes collected; but the court, by this decision, must not be understood as expressing an opinion upon what construction might be justified under other facts and circumstances, and for other purposes.

THE case is stated in the opinion.

Mr. James Lowndes for appellants.

Mr. W. S. Monteith for interested parties.

Mr. Assistant Attorney Gorman and Mr. Assistant Attorney General Dodge for appellees submitted on their brief.

Opinion of the Court.

MR. JUSTICE WHITE delivered the opinion of the court.

In 1861 Benjamin R. Bythewood was the owner of a lot in the town of Beaufort and a plantation in the county of the same name, both situated in Saint Helena Parish, State of South Carolina. On the occupation of Port Royal by the national troops in November, 1861, Bythewood left Saint Helena Island, as did all the white population of that island. Thereafter the property of Bythewood was assessed for taxes by the United States under the direct tax act of 1861, (12 Stat. 294,) and was sold in enforcement thereof. A portion of the plantation was subsequently redeemed.

Congress provided, by the act of March 2, 1891, c. 496, 26 Stat. 822, for refunding the direct tax collected under the act of 1861, and also for payment, under certain conditions, of a stipulated amount to the owners of property in Saint Helena Parish, which had been sold to collect such direct tax. This controversy arises from a claim made, under said act, by the representatives of Mrs. Verdier, that as their ancestor was a creditor secured by mortgage on the property of Bythewood at the date when it was sold under the act of 1861, they are therefore entitled to be paid the sum stipulated in the act of Congress, because as the representatives of such mortgage creditor they were the legal owners of the property within the meaning of the refunding law of 1891. The full text of the act of 1891, upon which the issue depends, is set out in the margin of the opinion in McKee v. United States, ante, 287.

By the fourth section of the act it is made "the duty of the Secretary of the Treasury to pay to such persons as shall in each case apply therefor and furnish evidence that such applicant was at the time of the sales hereinafter mentioned the legal owner or the heirs at law or devisee of the legal owner of such lands as were sold in the parish of Saint Helena and Saint Luke's in the State of South Carolina under the said acts of Congress, the value of said land in the manner following, to wit..

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The question which therefore arises is this: is one who was a mortgage creditor at the time of the sale of the property, to

Opinion of the Court.

enforce the direct tax, the legal owner contemplated by Congress when it enacted the law of 1891 ?

Construing the words "legal owner" in a strictly literal and purely technical sense, it is clear that under the law of South Carolina a mortgage creditor was not such legal owner. Without considering whether a mortgage creditor under the common law might be technically held to be the legal owner within the meaning of the act of 1891, it is plain that the statute law of South Carolina made the position of a mortgagee merely that of a creditor with security. The law from which this resulted was passed in 1791, 5 Stat. S. C. 169, and therein it was provided:

"No mortgagee shall be entitled to maintain any possessory action for the real estate mortgaged, even after the time alloted for the payment of the money secured by the mortgage is elapsed; but the mortgagor shall be still 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 Provided always, that nothing herein contained shall extend to any suit or action now pending, or when the mortgagor shall be out of possession,

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As late as 1890 the Supreme Court of South Carolina construed this statute in Hardin v. Hardin, 34 S. C. 77, 80, and it was there held that it was well settled, by many decisions, that in South Carolina 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, and that the mortgagor still remains, even after the condition is broken, the owner of the land.

Nor did the mere fact that Bythewood left Saint Helena Island, on the arrival of the Federal forces, convert Mrs. Verdier's title, which was one of mere security, into that of a legal owner. It is not found that she herself in fact took any possession of the property mortgaged to secure her debt.

As said in Norwich v. Hubbard, 22 Connecticut, 587, 594: "A mortgagee, out of possession, is not the proprietor of

Opinion of the Court.

the mortgaged premises, and, in common parlance, is never spoken of as such, nor is he so recognized in a legal sense. To be sure, he is said to have the legal title, and as against the mortgagor, and for the purpose of enforcing his rights, as mortgagee, he has such title. He can convey no beneficial interest in the land mortgaged, as separate and distinct from the debt; and he has no such interest in it as can be levied upon, and taken in execution, by his creditors."

Even the common law right of a mortgagee not in possession to be considered the legal owner is so in a restricted sense, as is shown by Great Falls Co. v. Worster, 15 N. H. 412, 434, where the court said:

"A mortgagee not in possession is not entitled to be treated as owner, except in a suit, or some other proceeding, to enforce his rights as mortgagee. Until entry, he has no right to exercise any acts as owner. He cannot claim the rents and profits. He cannot convey the land by deed, without transferring the debt. But he may assign the debt, and thereby assign and transfer the charge upon the land. He has no right to commit waste or destroy the property when in possession, until he has foreclosed."

Whilst it is hence clear that a strict and technical construction of the words "legal owner" would be conclusive against the claim which the mortgage creditors here assert, the language of the act of 1891 should not be measured and interpreted by this narrow rule. The context of that act makes it manifest that the word "legal," prefixed to the word "owner," was not intended to give it a purely artificial meaning. This is shown by the fact that in other places in the section where the word "owner" is found the same idea is conveyed by the use of that word without the prefix "legal." In interpreting the act, therefore, we must be guided not by any mere technicality, but must read its provisions by the light of the cardinal rule, commanding that the words must be apprehended, not in a forced and purely technical way, but in their general acceptation, and that the law must be interpreted in accordance with its spirit so as to effectuate the purpose intended to be accomplished thereby. Maillard v. Lawrence, 16 How. 251; Smythe v. Fiske, 23 Wall. 374.

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