687.

under Act 1861, and bid in by the government, and resold, of the proceeds of such resale, in excess of the tax. Held, that this clause does not apply to the owners of lands named in the first clause.

Appeal from Court of Claims.

W. S. Monteith, for appellants. Asst. Atty. Gen. Dodge, for the United States.

Mr. Justice PECKHAM delivered the opinion of the court.

The appellants herein have brought this appeal for the purpose of obtaining a review of a judgment of the court of claims dismissing their petition. No opinion was delivered by that court in this case, but it was decided upon the authority of the case of Sams v. U. S., 27 Ct. Cl. 266, which involved the construction of the same statute that is before us in this case.

It appears, by the finding of the court, that one Henry McKee was the owner of certain lands, which are therein described, in the town of Beaufort, in the parish of St. Helena, S. C., and that, while he was such owner, the gland was sold for the payment of the direct tax provided for in section 9 and the following sections of the act approved August 5, 1861, and entitled "An act to provide increased revenue from imports, to pay the interest on the public debt, and for other purposes." 12 Stat. 292. The property was bid in by the United States, and was thereafter resold by the government. The direct tax on the property so sold amounted, in all, to $91.52, and upon the resale of such property there was received into the treasury of the United States, in excess of the direct tax, the sum of $5,003.41. Henry McKee, the legal owner of the property at the time of its sale, died some time thereafter, leaving a will, and the claimants are the beneficiaries thereunder, being his widow and children. These same claimants have heretofore obtained judgment in the court of claims against the government for the sum of $5,680.60 on account of the same real estate above described. That judgment was obtained, and the claim in this case is founded, upon the act approved March 2, 1891 (26 Stat. 822), entitled "An act to credit and pay to the several states and territories and the District of Columbia all moneys collected under the direct tax levied by the act of congress approved August 5th, 1861." The act is set forth in full in the margin.1

1 An act to credit and pay to the several states and territories and the District of Columbia all moneys collected under the direct tax levied by the act of congress approved August fifth, eighteen hundred and sixty-one. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that it shall be the duty of the secretary of the treasury to credit to each state and territory of the United States and the District of Columbia a sum equal to all collections by set off or otherwise made from said states and territories and the District of Columbia or from any of the citizens or inhabitents thereof or other persons under the act of Congress approved August lifth, eighteen hun

*The judgment which the claimants have already obtained in the court of claims was rendered under the first clause in section 4 of the act. The claim now before the court rests upon the last clause of section 4, which reads as follows: "And provided further, that any sum or sums of money received into the treasury of the United States from the sale of lands bid in for taxes in any state under the laws described in the first section of this act in excess of the tax assessed thereon shall be paid to the owners of the land so bid in and resold, or to their legal heirs or representatives." We think this proviso does not apply to the owners of lands described in the first clause of the section.

A perusal of the entire act shows that its purpose was to pay back to the states, or to individual citizens of states,*the amounts of money received from them in the course of the execution of the direct tax act of 1861 and the acts amendatory thereof. The first section of the act provides for the crediting by the secretary of the treasury to each state, etc., a sum equal to all collections, by set-off or otherwise, made from said states. or from any of the citizens or inhabitants thereof, or other persons, under the act of congress therein mentioned. Provision is thus made for the amount that had been collected by the United States.

dred and sixty-one, and the amendatory acts thereto.

Sec. 2. That all moneys still due to the United States on the quota of direct tax apportioned by section eight of the act of congress approved August fifth, eighteen hundred and sixty-one, are hereby remitted and relinquished.

Sec. 3. That there is hereby appropriated, out of any money in the treasury not otherwise appropriated, such sums as may be necessary to reimburse each state, territory and the District of Columbia for all money found due to them under the provisions of this act; and the treasurer of the United States is hereby directed to pay the same to the governors of the states and territories and to the commissioners of the District of Columbia, but no money shall be paid to any state or territory until the legislature thereof shall have accepted, by resolution, the sum herein appropriated, and the trusts imposed, in full satisfaction of all claims against the United States on account of the levy and collection of said tax, and shall have authorized the governor to receive said money for the use and purposes aforesaid: Provided, that where the sums, or any part thereof, credited to any state, territory or the District of Columbia, have been collected by the United States from the cit-izens or inhabitants thereof, or any other person, either directly or by sale of property, such sums shall be held in trust by such state, territory or the District of Columbia for the benefit of those persons or inhabitants from whom they were collected, or their legal representatives: And provided further, that no part of the money collected from individuals and to be held in trust as aforesaid shall be retained by the United States as a set off against any in debtedness alleged to exist against the state. territory or District of Columbia in which such tax was collected: And provided further, that no part of the money hereby appropriated shall be paid out by the governor of any state or territory or any other person to any attorney or agent under any contract for services now ex

The second section provides for the remission and relinquishment of all moneys still due to the United States under the direct tax apportioned by section 8 of the above-mentioned act of congress. The third section appropriates moneys for the purpose of reimbursing each state for all money found due under the provisions of the act, and various conditions are therein imposed relative to the payment of such moneys. By the first clause of the fourth section, special provision is made for the payment to the legal owners, or their heirs, of such lands as were sold in the parishes of St. Helena and St. Luke's in the state of South Carolina under this direct tax act. Those owners, or their representatives, were to be paid for their lands, which had been sold, and the value thereof was to be ascertained in the manner provided by the fourth section. Full and special provision was thus made, in the clauses preceding the last clause of section 4, for the owners of lands which had been sold under the direct tax act in the parishes of St. Helena and St. Luke's in the state of South Carolina. The reimbursement of the owners in those particular parishes for their lands, which had been sold, was to be after the standard which was provided for in the clauses quoted.

There were, however, cases where lands had been sold under this direct tax act in

isting or heretofore made between the representative of any state or territory and any attorney or agent. All claims under the trust hereby created shal be filed with the governor of such state or territory and the commissioners of the District of Columbia, respectively, within six years next after the passage of this act; and all claims not so filed shall be forever barred, and the money attributable thereto shall belong to such state, territory or the District of Columbia, respectively, as the case may be.

Sec. 4. That it shall be the duty of the secretary of the treasury to pay to such persons as shall in each case apply therefor, and furnish satisfactory evidence that such applicant was at the time of the sales hereinafter mentioned the legal owner, or is the heir at law or devisee of the legal owner of such lands as were sold in the parishes of Saint Helena and Saint Luke's in the state of South Carolina, under the said acts of congress, the value of said lands in the manner following, to wit: To the owners of the lots in the town of Beaufort, one-half of the value assessed thereon for taxation by the United States direct tax commissioners for South Carolina; to the owner of lands which were rated for taxation by the state of South Carolina as being usually cultivated, five dollars per acre for each acre thereof returned on the proper tax book; to the owners of all other lands, one dollar per acre for each acre thereof returned on said tax book: Provided, that in all cases where such owners, or persons claiming under them, have redeemed or purchased said lands, or any part thereof, from the United States. they shall not receive compensation for such part so redeemed or purchased; and any sum or sums held or to be held by the said state of South Carolina in trust for any such owner under section three of this act shall be deducted from the sum due to such owner under the provisions of this section: And provided further, that in all cases where said owners have hererofore received from the United States the sur

other parishes of the state of South Carolina, and in other states. There was added to the act of 1891 the last clause of section 4, which would cover all such cases; and we are of opinion that this last clause does not refer to or cover the cases of those owners who are mentioned in the first clause of the same section. Otherwise this curious result might, and in this particular case would, follow: The owners of the land at the time of its sale would recover, under the first clause, a greater amount than the government actually received upon its resale of the land pursuant to the provisions of the direct tax act. That result would be accomplished by the rule, provided in the first clause, for arriving at the sum to be paid by the government without reference to the amount actually received by it. But, in addition to that, and under the provisions of the last clause as construed by plaintius in error, the owners would be entitled to recover all the moneys received into the treasury of the United States upon the sale of such lands for taxes, under the direct tax act, in excess of the taxes assessed thereon. In this case these claimants have already obtained judgment against the government for $5,680.60, and all that the government has received upon the sale of the property (above the taxes on such land, which were $91.52) is $5,003.41. By that judgment, therefore, the government

plus proceeds arising from the sale of their lands, such sums shall be deducted from the sum which they are entitled to receive under this act. That in all cases where persons, while serving in the army or navy or marine corps of the United States, or who had been honorably discharged from said service, purchased any of said lands under section eleven of the act of congress approved June seventh, eighteen hundred and sixty-two, and such lands afterwards reverted to the United States, it shall be the duty of the secretary of the treasury to pay to such persons as shall in each case apply therefor, or to their heirs at law, devisees or grantees, in good faith and for valuable consideration, whatever sum was so paid to the United States in such case. That before paying any money to such persons the secretary of the treasury shall require the person or persons entitled to receive the same to execute a release of all claims and demands of every kind and de scription whatever against the United States arising out of the execution of said acts, and also a release of all right, title and interest in and to the said lands. That there is hereby appropriated, out of any money in the treasury not otherwise appropriated, the sum of five hundred thousand dollars, or so much thereof as may be necessary to pay for said lots and lands, which sum shall include all moneys in the treasury derived in any manner from the enforcement of said acts in said parishes, and not otherwise ap propriated. That section one thousand and sixty-three of the Revised Statutes is hereby made applicable to claims arising under this act without limitation as to the amount involved in such claim: And provided further, that any sum or sums of money received into the treasury of the United States from the sale of lands bid in for taxes in any state under the laws described in the first section of this act in excess of the tax assessed thereon shall be paid to the owners of the land so bid in and resold, or to their legal heirs or representatives. Approved March 2, 1891.

must pay nearly $600 more than it ever received on account of the land, and, in addition to that, if the claimants' interpretation of the statute be the correct one, the government must pay $5,000 more to the owners of the same lands. We cannot think that this was the intention of congress. To give back as much as it has received over and above the original tax would seem to be dealing with a good deal of liberality with the owners. The fact is well known, as a matter of contemporaneous history, and it was so stated by counsel on the argument, that upon the sale of lands which the United States had bid in by virtue of the provisions of the direct tax act of 1861, and which were sold thereafter under the provisions of section 11 of the act of June 7, 1862, entitled "An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes" (12 Stat. 422), the amounts of such sales were frequently, and generally, very much less than the real value of the property sold. This was no fault of the government, however, and resulted in no benefit to it. By the rule adopted in the first clause of section 4 of the act of 1891 for ascertaining the amount which was to be paid the former owners of the property that had been sold, the sum which the United States 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 own

ers.

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. Bank, 142 U. S. 644, 650, 12 Sup.. Ct. 325, 327.

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. U. S., 27 Ct. Cl. 266, was correct, and its judgment in this case should therefore be affirmed.

(164 U. S. 294) GLOVER et al. v. UNITED STATES. (November 30, 1896.) No. 140.

REFUNDING ACT-CONSTRUCTION-MORTGAGEE AND "LEGAL OWNER" OF LAND.

A mortgagee of lands, at the time of their sale by the government by the direct tax act of 1861, is not embraced within the terms of the refunding act of March 3, 1891, providing for the payment of a specific sum to the "legal owner" of such lands.

Appeal from Court of Claims.

James Lowndes, for appellants. Asst. Atty. Gen. Dodge and George H. Gorman, for the United States. W. S. Monteith, for Bythewood heirs.

*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 St. Helena parish, state of South Carolina. On the occupation of Port Royal by the national troops in November, 1861, Bythewood left St. Helena Island, as did

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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 (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 St. 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. U. S., 164 U. S. 287, 17 Sup. Ct. 92.

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 satisfactory evidence that such applicant was at the time of the sales hereinafter mentioned the legal owner or is the heir at law or devisee of the legal owner of such lands as were sold in the parishes of Saint Helena and Saint Luke's in the state of South Carolina under the said acts of congress, the value of said lands in the manner following, to wit

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

As late as 1890 the supreme court of South Carolina construed this statute in Hardin v. Hardin, 34 S. C. 77, 80, 12 S. E. 936, 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 St. 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 City of Norwich v. Hubbard, 22 Conn. 587, 594:

"A mortgagee, out of possession, is not the proprietor of 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."

While 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, theretore, we must be guided, not by any mere echnicality, but must read its provisions by

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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. Following these canons of construction, it cannot be denied that the general acceptation of the word "owner" is distinct and different; indeed, is the very opposite of the word "creditor," whether secured by mortgage or not. And that this meaning is the sense in which it was used in the law in question is demonstrated by the fact that nowhere therein is provision made for the classification and ascertainment of the rights of creditors, for determining whether such rights had been duly preserved by proper registry, or had been discharged by payment, or barred by the statute of limitations. Indeed, there is one requirement of the act which excludes the implication that the word "owner" was intended to refer to a creditor. The payment to the owner, the fourth section commands, "shall be made by the secretary of the treasury to such persons as shall

* furnish satisfactory evidence that such applicant was at the time of the sales, hereinafter mentioned, the legal owner." Now, while the time of the sale was an ab solutely certain criterion by which to determine ownership vel non, it is an impossible test by which to ascertain the existence or nonexistence of a creditor at the time the law was enacted. The mere fact that a creditor held security at a given time does not exclude the possibility of the debt having been paid subsequent to the sale, or of its having perished by limitation, or having been extinguished in some other lawful way. To hold that the payment must be made, therefore, to one who was a creditor at the time of the sale, would imply that congress intended to make a payment to one who might not be a creditor at the time of the payment, although he may have been such creditor when the sale was made.

A consideration of the purpose meant to be accomplished by the act of 1891 fortifies the foregoing conclusions. That it was avowedly intended to repay the tax which had been levied under the act of 1861 is beyond question. The provision as to payment to the owners of a certain sum for land sold under that act was clearly a result and consequence of the general purpose contemplated by congress in passing the refunding law. It follows that the aim proposed by the act of 1891 was the return of the tax assessed under the act of 1861, and the repayment, in certain cases, to the owners, of a named sum for lands which were assessed and sold under that act. Now, if it be clear that, under the act of 1861, the owner, and not the mortgage creditor out of possession, was liable for assessment, it becomes equally clear that v.17s.c.-7

a mortgage creditor, who was not assessable under the act of 1861, was not within the scope of the relief intended to be accomplished by the act of 1891. The act of 1861, In section 8 and subsequent sections, provided for a tax which was to be assessed and laid within the United States "on the value of lands and lots of ground, their improvements and dwelling houses." It contemplated an assessment against the owner of the property and not the creditor, since there was a personal liability entailed on the owner for the tax. Thus, by section 35, the collector was authorized, upon default in the payment of the tax, to distrain upon goods and chattels. Can it be contended that one who was a creditor, with a mortgage security on the property of his debtor, was liable to assessment for this tax, and hence to have his goods and chattels distrained for its payment? If it cannot be, then it follows that the mortgage creditor could not be assessed under the act of 1861. But, if he was not assessable under that law, and the act of 1891 contemplates only the owners who could be so assessed, the deduction is irresistible that the mortgage creditor was not embraced in the word "owner" as used in the act of 1891. Nor is the claim here asserted by the mortgage creditor that he is within the term "owner," as used in the act of 1891, fortified by a reference to decisions construing that word in statutes regulating the enforcement of the right of eminent domain. Some courts, considering that word strictly in such statutes, have held it not to embrace a mortgagee. Farnsworth v. City of Boston, 126 Mass. 1; City of Norwich v. Hubbard, supra. Other courts, however, have held, from a consideration of the context of the statutes which they were interpreting, and the evident purpose intended thereby to be subserved, that mortgagees were embraced. Even if, arguendo, it be conceded that the latter construction is a correct one, and that where the law seeks to divest all*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