The opinion of the court was delivered by
Mr. Justice McGowan.
This was a proceeding, on- the part of junior judgment creditors of a mortgagor, to set aside a sale of the mortgaged premises made by the mortgagee, C. C. Meyer, for himself and other creditors, at which sale he bid off the land, and, as mortgagee, conveyed it to himself; and to have declared void a subsequent deed executed by him, as such purchaser, to the defendant, George R. Landrum, who advanced $3,000 to the mortgagees on the security of the land, and had the original mortgage delivered to him. The facts are somewhat complicated, and are so fully and clearly stated in the Circuit decree, that we will not attempt to restate them. (The Circuit decree and the grounds of appeal should appear in the report.) The judge held that there was no actual, intentional fraud in any of the numerous transactions, but that the power in the’ original mortgage, while it gave to the mortgagee the right to sell the mortgaged premises, did not give him the power to purchase at his own sale, so as to bind the parties interested, without their consent; and so holding, he set aside the purchase of C. C. Meyer at his own [222]*222sale, and also the deeds executed to himself as purchaser, as well as the deed executed by him to George R. Landrum ; “that the aforesaid deed made to Landrum by C. C. Meyer conveyed no title, and in itself created no pledge: but that instrument, being intended as a mortgage, and to convey whatever interest C. C. Meyer had in the land, and the transaction being ratified by the other persons, whose debts were secured by the first mortgage, being delivered to Landrum, all taken together, operated to assign the first mortgage of Thomas IT. Meyer to C. C. Meyer to George R. Landrum, who is entitled to foreclose the same.” He also held that the ground taken that the omission of the word “heirs” from the habendum clause of the mortgage, had the effect to limit the amount of the estate conveyed to the life of the mortgagee. C. C. Meyer, was not well taken ; and giving Landrum the right to have the original mortgage in his hands foreclosed, he dismissed the complaint as to the plaintiffs.
From this decree the plaintiffs appeal, assigning 15 grounds of error, which are long, and being all printed in the Brief, need not be restated here.
Exceptions 1, 2, 8, 12, and 13 make the question, “that it was error to decide that the word ‘heirs’ is not necessary in the habendum clause of the mortgage of T. H. Meyer to C. C. Meyer, for himself and others, to give a lien upon the fee simple estate of T. H. Meyer.” T. O. Meyer purchased the interest of his brother, C. C. Meyer, and their sisters in a certain tract of land for near $4,000, and, to secure the purchase money, mortgaged the said tract of land to his brother, C. O. Meyer, for himself and sisters. This mortgage, it seems, did not have in it the word “heirs”; and the proposition now is, that it was so defective that it could not be legally recorded; or, at most, that it conveyed only an interest for the life of the mortgagee. It is manifest that the instrument was inartificially drawn by some one not a lawyer; but, as it seems to us, there was no rational purpose for limiting the security to a life estate, and the context shows that such was not the intention. The words are, that “I, Thomas II. Meyer, for the better securing.” &c., “bargained and sold, and by these presents I do bargain and sell, and, in plain and open market, give possession, unto the said C. C. Meyer, one tract or parcel of land [de[223]*223scribing it], to have and to hold the said tract of land, unto the said O. C. Meyer, for himself and others above mentioned, their executors, administrators, and assigns, forever,” &c. — thus giving, in case of default, power to enter, take possession, and sell the same. There can be little doubt as to what was the real intention of the parties. ‘ Originally, that is, under the feudal system, the habendum defined the quantity of interest or the estate which the grantee is to take; but since the practical abolition of the various feudal tenures, the only object of the clause is to state the character of the grantee’s estate,” &c. See 5 Am. & Eng. Encyclop. Law, 456.
But, passing this, is it indispensable that a mortgage, in order to operate as a security for a debt, shall convey the legal estate to the mortgagee, and for that purpose must contain the word “heirs” ? It is true, that, according to the common law, the word “heirs” is necessary to convey the fee in a deed of land. Formerly, a mortgage of land was but a sale on condition, and that explains the form which was then given to it — a conveyance coupled with a defeasance. But since the act of 1791, it is a misnomer to call a mortgage a “sale on condition.” It is a mere lien on the property, as a security for the debt. This is shown by the authorities cited in the Circuit decree. The old form of mortgage maybe still generally used; but, since the great change in its character, is that the only form in which a legal mortgage may be made ?
The form of a simple deed of land is prescribed by statute; but we are not aware that any particular form is prescribed for a mortgage, and it is well settled that no particular form- is necessary to constitute a mortgage. Why should not an instrument, drawn in precise conformity to the provisions of the act of 1791, and properly executed, be effectual as a mortgage to give a lien on the land ? The case cited of Harper v. Barsh, 10 Rich. Eq., 149, had especial reference to the number of witnesses required in the execution of a mortgage as bearing upon the question of legal registry. It was there held that “a mortgage with only one subscribing witness, is void as a legal mortgage, and is not such a legal instrument, the recording of which will raise the presumption of notice to a purchaser from the mortgagor.” Here, there [224]*224is no question as to the formalities of execution, but simply as to the construction and effect of its terms, and we can hardly suppose that could have any effect in excluding registry.. Since a mortgage of land does not really convey the legal title, but gives only a lien on it to secure a debt, we cannot clearly see why it may not, for that purpose, be legal and binding Avithout the use of the Avord “heirs.”
In reference to mortgages and the different character given to them, Mr. Pomeroy divides the States into classes — one in which the common law doctrine prevails, and the other Avhich has adopted what he calls “the equitable.theory.” He very correctly places our State in the latter class. Where “the mortgage is regarded, primarily, as a security, the debt is the principal fact, and .the mortgage is collateral thereto. The interest which it confers on the mortgagee is a lien on the land, and not an estate in the land. It is a thing in action, and may, therefore, be assigned and transferred without a conveyance of the land itself. It is personal' assets, and on the death of the mortgagee it passes to his executors or administrators, and not to his heirs,” &c. See 3 Pom. Eq. Jur., § 1181, and notes. Mr. Jones also says: “It will be noticed that the English doctrine of the nature of mortgages, Avith slight modifications, prevails east of the Mississippi River everyAvhere, excepting NeAv York alone in the North, Indiana, Michigan, and Wisconsin in the West, and South Carolina, Georgia, and Florida in the South ; while Avest of the Mississippi, excepting only the States of Missouri and Arkansas, the doctrine everyAvhere prevails, that a mortgage passes no estate or right of possession,” &c.
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The opinion of the court was delivered by
Mr. Justice McGowan.
This was a proceeding, on- the part of junior judgment creditors of a mortgagor, to set aside a sale of the mortgaged premises made by the mortgagee, C. C. Meyer, for himself and other creditors, at which sale he bid off the land, and, as mortgagee, conveyed it to himself; and to have declared void a subsequent deed executed by him, as such purchaser, to the defendant, George R. Landrum, who advanced $3,000 to the mortgagees on the security of the land, and had the original mortgage delivered to him. The facts are somewhat complicated, and are so fully and clearly stated in the Circuit decree, that we will not attempt to restate them. (The Circuit decree and the grounds of appeal should appear in the report.) The judge held that there was no actual, intentional fraud in any of the numerous transactions, but that the power in the’ original mortgage, while it gave to the mortgagee the right to sell the mortgaged premises, did not give him the power to purchase at his own sale, so as to bind the parties interested, without their consent; and so holding, he set aside the purchase of C. C. Meyer at his own [222]*222sale, and also the deeds executed to himself as purchaser, as well as the deed executed by him to George R. Landrum ; “that the aforesaid deed made to Landrum by C. C. Meyer conveyed no title, and in itself created no pledge: but that instrument, being intended as a mortgage, and to convey whatever interest C. C. Meyer had in the land, and the transaction being ratified by the other persons, whose debts were secured by the first mortgage, being delivered to Landrum, all taken together, operated to assign the first mortgage of Thomas IT. Meyer to C. C. Meyer to George R. Landrum, who is entitled to foreclose the same.” He also held that the ground taken that the omission of the word “heirs” from the habendum clause of the mortgage, had the effect to limit the amount of the estate conveyed to the life of the mortgagee. C. C. Meyer, was not well taken ; and giving Landrum the right to have the original mortgage in his hands foreclosed, he dismissed the complaint as to the plaintiffs.
From this decree the plaintiffs appeal, assigning 15 grounds of error, which are long, and being all printed in the Brief, need not be restated here.
Exceptions 1, 2, 8, 12, and 13 make the question, “that it was error to decide that the word ‘heirs’ is not necessary in the habendum clause of the mortgage of T. H. Meyer to C. C. Meyer, for himself and others, to give a lien upon the fee simple estate of T. H. Meyer.” T. O. Meyer purchased the interest of his brother, C. C. Meyer, and their sisters in a certain tract of land for near $4,000, and, to secure the purchase money, mortgaged the said tract of land to his brother, C. O. Meyer, for himself and sisters. This mortgage, it seems, did not have in it the word “heirs”; and the proposition now is, that it was so defective that it could not be legally recorded; or, at most, that it conveyed only an interest for the life of the mortgagee. It is manifest that the instrument was inartificially drawn by some one not a lawyer; but, as it seems to us, there was no rational purpose for limiting the security to a life estate, and the context shows that such was not the intention. The words are, that “I, Thomas II. Meyer, for the better securing.” &c., “bargained and sold, and by these presents I do bargain and sell, and, in plain and open market, give possession, unto the said C. C. Meyer, one tract or parcel of land [de[223]*223scribing it], to have and to hold the said tract of land, unto the said O. C. Meyer, for himself and others above mentioned, their executors, administrators, and assigns, forever,” &c. — thus giving, in case of default, power to enter, take possession, and sell the same. There can be little doubt as to what was the real intention of the parties. ‘ Originally, that is, under the feudal system, the habendum defined the quantity of interest or the estate which the grantee is to take; but since the practical abolition of the various feudal tenures, the only object of the clause is to state the character of the grantee’s estate,” &c. See 5 Am. & Eng. Encyclop. Law, 456.
But, passing this, is it indispensable that a mortgage, in order to operate as a security for a debt, shall convey the legal estate to the mortgagee, and for that purpose must contain the word “heirs” ? It is true, that, according to the common law, the word “heirs” is necessary to convey the fee in a deed of land. Formerly, a mortgage of land was but a sale on condition, and that explains the form which was then given to it — a conveyance coupled with a defeasance. But since the act of 1791, it is a misnomer to call a mortgage a “sale on condition.” It is a mere lien on the property, as a security for the debt. This is shown by the authorities cited in the Circuit decree. The old form of mortgage maybe still generally used; but, since the great change in its character, is that the only form in which a legal mortgage may be made ?
The form of a simple deed of land is prescribed by statute; but we are not aware that any particular form is prescribed for a mortgage, and it is well settled that no particular form- is necessary to constitute a mortgage. Why should not an instrument, drawn in precise conformity to the provisions of the act of 1791, and properly executed, be effectual as a mortgage to give a lien on the land ? The case cited of Harper v. Barsh, 10 Rich. Eq., 149, had especial reference to the number of witnesses required in the execution of a mortgage as bearing upon the question of legal registry. It was there held that “a mortgage with only one subscribing witness, is void as a legal mortgage, and is not such a legal instrument, the recording of which will raise the presumption of notice to a purchaser from the mortgagor.” Here, there [224]*224is no question as to the formalities of execution, but simply as to the construction and effect of its terms, and we can hardly suppose that could have any effect in excluding registry.. Since a mortgage of land does not really convey the legal title, but gives only a lien on it to secure a debt, we cannot clearly see why it may not, for that purpose, be legal and binding Avithout the use of the Avord “heirs.”
In reference to mortgages and the different character given to them, Mr. Pomeroy divides the States into classes — one in which the common law doctrine prevails, and the other Avhich has adopted what he calls “the equitable.theory.” He very correctly places our State in the latter class. Where “the mortgage is regarded, primarily, as a security, the debt is the principal fact, and .the mortgage is collateral thereto. The interest which it confers on the mortgagee is a lien on the land, and not an estate in the land. It is a thing in action, and may, therefore, be assigned and transferred without a conveyance of the land itself. It is personal' assets, and on the death of the mortgagee it passes to his executors or administrators, and not to his heirs,” &c. See 3 Pom. Eq. Jur., § 1181, and notes. Mr. Jones also says: “It will be noticed that the English doctrine of the nature of mortgages, Avith slight modifications, prevails east of the Mississippi River everyAvhere, excepting NeAv York alone in the North, Indiana, Michigan, and Wisconsin in the West, and South Carolina, Georgia, and Florida in the South ; while Avest of the Mississippi, excepting only the States of Missouri and Arkansas, the doctrine everyAvhere prevails, that a mortgage passes no estate or right of possession,” &c. See 1 Jones Mortg., § 69. As expressed by the Circuit Judge, “the word ‘heirs’ is only material in fixing the measure of the estate taken by the grantee, and is of no significance in an instrument creating a pledge, where title remains in the mortgagor.”
Exceptions 3, 4, 5, and 9, in different forms, .charge error in the Circuit Judge in finding that there was no actual fraud in the transactions growing out of the mortgage from T. H. to C. C. Meyer. That Avas a question of fact.- We have carefully considered the testimony and all the circumstancés, and we are unable to say that the finding is without evidence to sustain it. Un[225]*225doubtedly, there were several mistakes, but we do not think there was any intention to defraud the creditors. The efforts seemed rather to have been intended to save themselves than to injure others.
Exceptions 8 and 10 complain of error on the part of the judge in not deciding that the release of the “equity of redemption” by T. II. Meyer to George R. Landrum was delivered, and “thereby the judgment liens became the first encumbrances upon the property,” &c. That is to say, the proposition is, that the deed of the land, September 25,1885, made by T. H. Meyer, in his effort to save George R. Landrum for the advance obtained from him, made a case for the application of the doctrine of merger, and instantly extinguished the mortgage, leaving the land subject to the lien of the subsequent judgment creditors. As it seems to us, the conclusive answer to this is that Landrum refused to accept that deed, which, as the judge found, “as far as appeared, was executed without his knowledge.” He certainly still retained possession of the mortgage. We think the facts in this case distinguish it essentially from that of Bleckeley v. Branyan, 26 S. C., 424.
The sixth exception complains, “that George R. Landrum having so agreed in writing with T. H. Meyer, he cannot claim to -set up.the mortgage to C. C. Meyer for any greater sum than the $3,000 and the interest thereon, and that his honor erred in not so deciding.” If the mortgaged premises should sell for more than the $3,000 advanced, and the interest thereon, a question might arise between George R. Landrum and the other contracting parties, whether he purchased the mortgage absolutely for the $3,000, or should account to the mortgagor to the full 'amount of this debt, after refunding his advance and interest. But we do not see that the judgment creditors of the mortgagor'can object to the recovery of the whole mortgage debt, if the lands sell for enough to pay it.
This being an equity suit, the matter of costs was within the discretion of the Circuit Judge.
■ The judgment of this court is, that the judgment of the Circuit Court be affirmed.