authorized a sale of one hundred and twenty sections in advance of construction, but in that same decision state expressly that there was one restriction or limitation, that is, that said sections should be included within a continuous length of twenty miles. This restriction must be kept in mind in our consideration of the question as to the amount of land the company was authorized to sell, and a like limitation applies when we come to determine the quantity of land due the company on the adjustment of its grant under the forfeiture act. That this granting act authorized the sale of the designated sections in this case the even-numbered, found in any section of twenty miles along the line of its road as definitely fixed prior to actual construction of its track, and upon the completion of twenty miles of road, the sale of those sections in another continuous length of twenty miles is too well settled to need more than a statement of the fact at this time. Railroad Land Company v. Courtright (supra.) If there was no sale of land prior to the act declaring the grant forfeited, then the constructed road would, under the general rule, furnish the basis for determining the amount of land to which the company is entitled. In the adjustment of a grant where the road has been completed, the quantity of land earned thereunder is to be measured by the length of road actually constructed. Railroad Company v. Herring (110 U.S., 27). This same rule has been applied in several instances in the adjustment of grants under forfeiture acts where only a portion of the road provided for in the granting act had been actually constructed. Michigan Land and Iron Co. (12 L. D., 214), Ontonagon and Brule River R. R. Co. (13 L. D., 463). There seems to be no good reason for applying a different rule in this case. The provisions of this forfeiting act are the same in effect as those of the acts under consideration in those cases. All land is forfeited which lies opposite to, and coterminous with, the portion of the road not completed. The corrollary of this proposition is that the grantee is entitled to all the lands granted by said act which lie opposite to, and coterminous with, the completed. portion of the road. This is the theory upon which you reached your conclusion as to the quantity of land to which the company is entitled for constructed road, and to that extent your action is affirmed. It remains to be determined whether the even-numbered sections of land lying adjacent to the line of said road, and within a continuous length of twenty miles, were so disposed of prior to the forfeiting act, as to be taken out of the operation of that act. Selection has been made of such sections in the length of twenty miles next to the completed portion of the road. If they had been actually sold, and disposed of in accordance with the authority of the fourth section of the granting act, which is quoted herein before, then they must, in my opinion, be held beyond the reach of the grantor to declare a forfeiture thereof, and consequently, are not affected by the act of September 29, 1890, supra. The lands which were to revert to the United States were those re 12771-VOL 16—16 maining unsold upon the failure of the grantee to comply with the conditions of the grant, or rather those remaining in that condition at the date of the forfeiture act. It is strenuously insisted that the mortgage given by this company, operated as a conveyance of the title to the lands to the trustee, and the transaction constituted in law a sale of said lands, that is, of all lands which the company had a right to sell, and in support of this is cited the case of Tucker v. Ferguson (22 Wall., 527). In that case the mortgage and trust deed contained a power of sale in the trustees, and terms and conditions for the management of the estate, while in the the case now under consideration, the power of sale was retained by mortgagor. The trustee here had no control over these lands for the purpose of sale or otherwise, and could acquire none, except upon default on the part of the mortgagor, when he might take possession of the property, institute and maintain foreclosure proceedings, and cause the property to be sold and conveyed under the directions of the court. This is not a mortgage with a power of sale in the mortgagee; but as if to make it positive and certain that it was not intended to give the trustee in this mortgage any control over the land, it is provided, that upon payment of said bonds in full, "the estate and title hereby conveyed shall revert and vest in the said company, its successors and assigns, without further conveyance, and without entry or other act therefor." The question here presented, is as to whether the execution of an ordinary mortgage constitutes a sale of the lands covered thereby, within the meaning of the granting act in question. Some general propositions may be noticed as proper to be borne in mind in considering this case. This mortgage has words of general description, and therefore conveyed lands held by a full equitable title, as well as those held by a legal title. Thompson v. Valley R. R. Co. (132 U. S., 68), Toledo R. R. Co. v. Hamilton (134 U. S., 296), Central Trust Co. v. Kneeland (138 U. S., 414). This mortgage included not only the land then owned, but also all land to be thereafter acquired, that is, it contains the "after-acquired property" clause, and therefore covered not only the land then owned, but became a lien upon all subsequently acquired, which fell within the descriptive terms of the instrument. (See authorities above cited.) In taking up the question as to the effect of a mortgage upon the title of the land encumbered, we are met at outset by the fact that formerly a theory obtained in courts of equity differing very materially from that controlling in the courts of law, and that in some of the States one rule has been adopted, and in some the other. Chancellor Kent in speaking of the rights of a mortgagor in law says: "Upon the execution of a mortgage, the legal estate vests in the mortgagor, subject to be defeated upon performance of the condition", (4 Kent's Com., 154) while when he comes to speak of his standing equity uses the following language: "The equity doctrine is, that the the mortgage is a mere security for the debt, and only a chattel interest, and that until a decree of fore-closure, the mortgagor continues the real owner of the fee." (Ibid, 159). In Perry on Trusts (Sect. 602 j), we find the following statement as to the effect of a mortgage. In law, a mortgage is considered, as between the mortgagor and mortgagee, and so far as it is necessary to give full effect to the mortgage as a security for the performance of the condition, as a conveyance in fee. But for all other purposes it is considered, especially until entry for condition broken, as a mere charge or incumbrance, which does not divest the estate of the mortgagor. In Washburne on Real Property, (Chap. 16, Sect. 1) mortgages are defined as "one form of lien upon real estate to secure the performance of some obligation", and it is further said that, "as ordinarily understood, a lien upon land does not imply an estate in it, but a mere right to have it in some form, applied towards satisfying a claim upon it." Farther on in the same chapter, (Sect. 4) the interest of the mortgagee in law is stated as follows: By the common law, a mortgagee in fee of land is considered as absolutely entitled to the estate, which he may devise or transmit by descent to his heirs, and in equity as follows: As a general proposition, equity regards a mortgage, especially before the condition is broken, as creating an interest in the mortgaged premises of a personal nature, like that which the mortgagee has in the debt itself. It treats the debt as the principal thing, and the land as a mere incident to it. Whatever it does with the land is an auxiliary to enforcing payment of the debt. These quotations from standard authorities present the general phase of the question very clearly, and while in the different States the somewhat different theories have been adopted, yet it is, I think, quite safe to say the tendency has been away from the common-law doctrine, and towards that of the courts of equity. The statute of Mississippi provides as follows (Code 1880, Sect. 1204); Before a sale under a mortgage, or deed of trust, the mortgagor or grantor shall be deemed the owner of the legal title of the property conveyed in such mortgage or deed of trust, except as against the mortgagee and his assigns, or the trustee after breach of the condition of such mortgage or deed of trust. The question as to the interest taken or held by a mortgagee has engaged the attention of the supreme court of Mississippi in several cases, and in the decision in Carpenter v. Bowen (42 Miss., 28), the court, after stating the doctrine of the equity courts, makes use of the following language: This equitable doctrine, concerning the rights of mortgagor and mortgagee, has gradually been naturalized in the common law code, and, by the adoption of principles long established in chancery, it has become well settled, in courts of common law, that the mortgagee, until fore-closure, has only a chattel interest; that a mortgage is but a charge upon the land, and that whatever would give the money, will carry the estate in the land along with it, to every purpose. The estate in the land is the same thing as the money due upon it. It will be liable to debts; it will go to executors; the assignment of the debt will draw the land after it. From these properties of the mortgagee's estate, it appears in the strongest manner, that it is not in the land, but in the security only. The debt is considered as the principal, and the mortgage as an incident only. If, as here so positively stated, the mortgagee takes no estate in the land, then surely the giving of a mortgage does not constitute a sale under the terms of the granting act now under consideration. In the same decision may also be found the following language: Until fore-closure, whether the mortgagee has possession or not, the estate mortgaged is a pledge only; the relation of debtor and creditor exists, and the equity of redemption is unimpaired. Although the mortgagee has a chattel interest only, yet in order to render his pledge available, and give him the intended benefit of his security, it is considered as real property, to enable him to maintain ejectment for the recovery of the possession of the land mortgaged. It is only considered as real estate for the purpose of enabling the mortgagee to get it into possession. When contemplated in every other point of view, it is personal property. A similar ruling is made also in the case of Buckley v. Daley (45 Miss. 338). It seems further from these cases that it is the fore-closure, rather than the breach of condition that operates to vest in the mortgagee a title to the land, that is, that changes what was before a chattel interest into an estate in the land. The status of the mortgagee in this case must be determined under the law of the State of Mississippi, where the land in question is situated, and where the instrument was executed; and under that law, as above quoted, and the construction given it by the supreme court of the State, it must be held that since there was no fore-closure prior to the forfeiting act, the mortgagee had only a chattel interest under his mortgage, and the transaction did not constitute a sale of the land, or operate to place it beyond the power of Congress to declare a forfeiture thereof. The cases cited by counsel for the company go upon the theory that the mortgage vested in the mortgagee the legal title to the land; but as we have seen, that theory can not properly be applied in this case. I do not find that this question has been directly before this Department in exactly the same connection in which it is presented in this case. The effect of a mortgage as a conveyance of an estate in the land, has, however, come up under various laws, and the conclusion has been that it did not constitute a sale, conveyance or alienation. Thus it has been held that the giving of a mortgage was not such a transaction as would prevent a preemptor from making oath as required in section 2262, Revised Statutes, that he had not made any agreement or contract by which the title he might acquire from the government, should inure in whole or in part to the benefit of any person but himself. Larson v. Weisbecker (1 L. D., 409). William H. Ray, (6 L. D., 340). Murdock v. Ferguson (13 L. D., 198). It has been held, too, that the giving of a mortgage is not a sale or alienation within the purview of section 2291, Revised Statutes, which requires a homestead claimant, at the date of making final proof, to make affidavit that no part of the land has been alienated. Mudgett v. Dubuque, and Sioux City R. R. Co. (8 L. D., 243). It has also been held that a mortgagee is not an assignee with inthe meaning of section. 2362, Revised Statutes, which provides for the repayment in certain cases, "to the purchaser or his legal representatives or assigns" of purchase money. Alonzo W. Graves (11 L. D., 283) Emma J. Campbell v. decided October 20, 1892, (15 L. D. 391). While these cases do not perhaps control in the one now under consideration, they may properly be considered as involving principles similar, and indeed quite closely related to the one involved here. Said cases show that the tendency in this Department, as in the courts, has been to consider the interest of the mortgagee as a chattel interest only, rather than as an estate in the land itself. If this be the proper rule to apply in this case, and of that I think there can be no doubt, in view of the provisions of the State law, and the authorities herein before cited, then it must be held that the giving of this mortgage was not a sale within the terms of the granting act. After a careful consideration of this matter, I am of the opinion that there was no sale of these lands within the meaning of the statute, and therefore concur in your conclusion that this company is entitled to so much land only as is to be found in the designated sections opposite to, and coterminous with that portion of its road completed, and in operation at the date of the act of forfeiture. It is further contended that when the State conveyed these lands to the company, authorizing them to be pledged to secure bonds, and that was done, she had sold them as contemplated by the statute, the case of Tucker v. Ferguson supra, being cited in support of that proposition. The two cases are not, however, quite parallel. In the case before the supreme court there was no question of forfeiture involved. It went upon the theory that it had not been shown that there had been any default, and that even if there had been, the United States could alone take advantage of the breach of condition to declare a forfeiture. The fact is, however, as shown in the statement of the case, that the road had, at the time the case was before the supreme court, been completed, the lands thereby earned, and that the United States had never attempted to assert any right of forfeiture. While these facts are not emphasized in the decision of that case, it seems proper to note them here in making a comparison of the two cases, and to show that the decision there does not necessarily control here. What was said by the court in that case must be taken as said in the light of the facts existing there. It is true that the lands involved there had passed out of the class included in the reverter, that class being, as stated by |