Opinion of the Court. and every title to land or estate and substitute the price therefor, that the word "owner" should receive a broad and liberal construction so as to embrace every right in and to the land, such concession would not affect or control the proper interpretation to be given to the word "owner" in the act under consideration. In conferring the gratuity provided by the act of 1891, Congress in no way manifested its purpose to make a restitutio in integrum, to create a fund which would take the place of the property and be the representative of its entire value, at the date of the sale, or of all the interests then resting upon or entering into the land. The act does not provide for ascertaining the value of the land at the time of the sale and for a return of the amount thereof, but simply fixes an arbitrary sum to be paid to the one who was the owner at the time of the sale. And that this sum was not considered by Congress as the whole value of the property, at the date of the sale, is demonstrated by the fact that, as to the lots in Beaufort, the amount to be paid was fixed at one half the valuation placed on them, by the United States, when they were assessed under the direct tax law. We cannot adopt a theory of construction which substantially asserts that the half is equal to the whole. To enforce, then, against the money given by Congress to the owner, the rights of the mortgage creditor on the theory that it represents the entire value of the property would be indulging in an untrue hypothesis to justify not only a repudiation of the express words of the law, but also a refusal to execute its manifest intent. Doubtless both the rights of the owner and those of the mortgage creditor were operated on by the tax sale. But the taxing law gave to either a right of redemption. If years after the sale and when the right to redeem had lapsed, Congress chose to give to the owner a proportion of the value of the property to compensate for his loss, we can see no equitable consideration. supporting the claim that the money should be, by judicial construction, taken from the owner, in order to bestow it on the mortgage creditor. To so construe would substitute the judicial for the legislative mind. Statement of the Case. This case is also unlike that of a factor who, by reason of advances upon goods in his physical possession, has acquired a quasi ownership in such goods, and who, to the extent of such advances, is entitled as special owner to sell the goods in his possession. United States v. Villalonga, 23 Wall. 35. Of course the construction which we give to the term "legal owner" or "owners" in the act of 1891, is limited to the precise question arising on this record, which is simply whether a mortgagee can properly be said to be embraced within the terms of the act of 1891 giving a particular sum to the legal owner or owners for lands sold by the government under the direct tax act of 1861. In determining, therefore, as we do, that the mortgage creditor is not embraced in the provisions of the act, we are not to be understood as expressing an opinion upon what construction might be justified under other facts and circumstances and for other purposes. The judgment of the Court of Claims, disallowing the claim of the plaintiffs, having construed the act of 1891 in accordance with the foregoing views, was right, and is therefore Affirmed. COUGHRAN v. BIGELOW ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 53. Argued and submitted May 7, 1896. - Decided November 30, 1896. The granting, by a trial court, of a nonsuit for want of sufficient evidence to warrant a verdict for the plaintiff is no infringement of the constitutional right of trial by jury. A surety on a bond, conditioned for the faithful performance by the principal obligor of his agreement to convey land to the obligee on a day named on receiving the agreed price, is released from his liability if the vendee fails to perform the precedent act of payment at the time provided in the contract, and if the vendor, having then a right to rescind and declare a forfeiture in consequence, waives that right. EUGENE W. Coughran and Nathan H. Cottrell filed their amended complaint in the district court of the first judicial district of the Territory of Utah on December 15, 1891, Statement of the Case. against Henry C. Bigelow and H. P. Henderson, showing that on April 26, 1890, E. A. Reed and H. H. Henderson, as principals, and the defendants as sureties, executed and delivered to the plaintiffs a bond conditioned for the performance of a contract on the part of the said principals to convey to the plaintiffs an interest in certain lands situate in Weber County, in the said Territory; alleging that the said principals had failed to perform the contract, and seeking, on account of such alleged breach of the condition of the bond, to recover the amount of the penalty thereof from the defendants. The bond was as follows: "Know all men by these presents that we, E. A. Reed and H. H. Henderson, principals, and H. Bigelow and H. P. Henderson, as sureties, all of the county of Weber, Territory of Utah, are held and firmly bound unto Eugene W. Coughran and Nathan H Cottrell, of Sioux Falls, South Dakota, in the sum of five thousand dollars, lawful money of the United States, to be paid to the said Eugene W. Coughran and Nathan H. Cottrell, their executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves, we and each of ourselves, executors and administrators jointly and severally firmly by these presents. "Sealed with our seals, and dated this 26th day of April, A.D. 1890. "The condition of the above obligation is such that the above-bounden E. A. Reed and H. H. Henderson, on or before the first day of October next, or in case of their death before that time, if the heirs of the said E. A. Reed and H. H. Henderson, within three months after their decease, shall and do upon the reasonable request of the said Eugene W. Coughran and Nathan H. Cottrell, their heirs or assigns, make, execute and deliver, or cause so to be made, a good and sufficient warranty deed, in fee simple, free from all incumbrance and with the usual covenants of warranty, of the following-described premises, to wit: An undivided one tenth of section fifteen (15), in township six (6), north of range one (1) west, Salt Lake meridian, Weber County, Utah Territory, except a part of the Statement of the Case. southwest quarter section of said section 15, described as follows: Beginning at the southeast corner of said southwest quarter section, and running thence west 20 rods; thence north 30 rods; thence west 20 rods; thence north 40 rods; thence east 40 rods; thence south 70 rods to the place of beginning; provided the said Eugene W. Coughran and Nathan II. Cottrell comply with their part of the contract this day made and delivered to them by the said E. A. Reed and H. H. Henderson, and a copy of which is hereto attached, then the above obligation to be void; else to remain in full force and virtue. "Signed in presence of "GEO. H. BUrgitt." "H. H. HENDERSON. "E. A. REED. "H. C. BIGELOW. "H. P. HENDERSON. Attached to the bond was the instrument following: : "OGDEN, April 26, 1890. "Received of Eugene W. Coughran and Nathan H. Cottrell thirty-three hundred and thirty-three dollars as part purchase price of an undivided one tenth part of the following-described lands, viz. Section fifteen (15), in township six (6), north of range one (1) west, Salt Lake meridian, Weber County, Utah Territory, except a part of the southwest quarter section of said said section fifteen, described as follows: Beginning at the southeast corner of said southwest quarter section, and running thence west twenty rods, thence north thirty rods, thence west twenty rods, thence north forty rods, thence east forty rods, thence south seventy rods, to the place of beginning. "The full purchase price being ten thousand dollars, to be paid as follows: $3334 on October 1, 1890, and $3333 on April 1, 1891, with interest at eight per cent per annum on deferred payment from October 1, 1890. But in case said. land is sold before October 1, 1890, then the last two payments are to bear interest from April 1, 1890, to the date of sale. And in case any payments are not made as above ་ Statement of the Case. provided the amount paid herein is forfeited, and this receipt is from that time void and inoperative, and when the payment [sic] are made as above provided the land to be conveyed to said Eugene W. Coughran and Nathan H. Cottrell, or their assigns, with good title free from incumbrances. "Signed in presence of — "GEO. H. BURGITT." "H. H. HENDERSON. The plaintiffs alleged that they made the first and second payments provided for in the contract in accordance with the terms thereof; that on or about November 1, 1890, upon the request of the plaintiffs, E. A. Reed and H. H. Henderson tendered them a deed for the said interest in the lands; that thereupon they examined the title to the property, found the same to be defective and, because of the defects therein, refused to accept the deed; and that as to these transactions between the parties to the contract the defendants had due notice. It was alleged that Reed and H. H. Henderson had never been able, and were not able at the time the complaint was filed to convey a fee simple and unincumbered title to the one tenth interest in the lands described in the bond and contract; that for a long time prior to April 12, 1890, the property was owned in fee simple by the Union Pacific Railway Company, which company, by deed of that date, conveyed all of the east half and the north half of the northwest quarter of said section fifteen to one James Taylor; that in and by that deed the company reserved to itself "the exclusive right to prospect for coal and other minerals within and underlying said land, and mine and remove the same if found," and also "the right of way over and across said lands, and space necessary for the conduct of said business thereon, without charge or liability therefor"; that the title of Reed and H. H. Henderson to the said interest was obtained by deed to them from Taylor, dated October 17, 1890, which deed was made subject to the said mining rights reserved to |