
    Gillespie and Peck vs. Cunningham, et als.
    
    1. Granla of land made by the State, of Tennessee to which the title of the Cherokee nation had not been extinguished at the time of the grant, aro void and convey no title to the grantee.
    2. Where it was provided by compact between the United States and the Cher-* okee tribe of Indians that all land lying within certain calls for certain natural objects should be ceded to the United States, and that commissioners appointed by the United States and by the tribe should run the line, and such commissioners did run the line, and it was subsequently acquiesced in by the parties: Held, that in a conflict of titles arising upon the question of the true location of said boundary, between citizens of the State, the line so run and acquiesced in shall be regarded as the true line.
    Nicholas S. Peck and John F. Gillespie, on the 11th day of October, 1833, entered five thousand acres of land in the office of the Hiwassee district. They procured a grant from the State of Tennessee on the 3d of June, 1834. This land lies south and west of -the boundary line as run by the commissioners o'n the part of the United States, accompanied by the commissioners on the part of the Cherokee tribe, and not within the Hiwassee district regarding the said line so run as the true boundary line, but within the Hiwassee district as said Peck and Gillespie believed at the time of the entry, regarding the true line as fixed by the calls for natural objects in the treaty by which the land in said district was ceded to the United States in the year 1819.
    After the cession by the Cherokees of all their remaining land within the limits of this State to the United States, and the establishment by the Legislature of the Ocoee district in 1837, to wit, bn the 14th of June, 1839, David Cunningham procured grants from the State of Tennessee for a large portion of the land previously granted to Peck and Gillespie. His entries were made in the office of the Ocoee district. Cunningham and others under him took possession of the land covered by his grants, and Peck and Gillespie instituted this action of ejectment in the circuit court of Monroe county, on the 20th of August, 1840, against Cunningham and his tenants. The cause came on and was tried at the July term, 1840, by his honor Ch. F. Keith and a jury of Monroe county. Much proof was introduced by the plaintiffs to show that the land covered by their grant and in the possession of the defendants was ceded to the United States in 1819, and that the line run by the commissioners was not run in conformity with the calls for natural objects made in the treaty of 1819; and by the defendants to show that the parties had acquiesced in the line so run.
    His honor charged the jury that if the land covered by the plaintiffs’ grant lay within the Hiwassee district their title thereto must prevail; that if on the contrary the Indian title thereto was not extinguished at the time of the entry and the grant founded thereupon, they would be void and convey no title to the plaintiffs; that in ascertaining the fact as to whether the Indian title to said land was extinguished or not at that time, they should ascertain the true time; that if the line was run and marked by commissioners appointed as contemplated in the 5th article of the treaty of 1819, and the parties to the compact sanctioned the act of their agents, the act would be binding upon them; and if Tennessee, for whose use the ceded territory enured, in appropriating the land, conformed to the line so run and marked, it should be regarded as the true boundary though some parts of such line did not correspond with the natural objects called for in the treaty.
    The jury rendered a verdict for the defendants. A motion was made for a new trial and overruled. The plaintiffs appealed in error to this court.
    
      Peck, appeared for plaintiffs
    and argued the case at length, but did not furnish the reporter with his brief.
    
      Vandyke, for defendants,
    contended, 1. That the plaintiffs in error had no right to introduce testimony to show that the line run by the commissioners, appointed as contemplated by the treaty of 1819, was not run in conformity with the calls in the treaty. The line was run by the agents of the contracting parties, and if they committed errors no one could rectify those errors but the contracting parties; but the contracting parties had ratified the acts of their agents and recognized the line so run as the true boundary of the ceded territory. The United States recognised this line as the true boundary by removing the white settlers beyond it in conformity with her obligation under the 5th article of the treaty. The State of Tennessee has recognised this line as the true boundary by not going beyond it in surveying and sectioning the land ceded to her by the treaty of 1819, and more recently by directing the survey of the land ceded by the treaty of 1835, and by making this line the boundary of such survey. This must thereFore be regarded as the true boundary line between the lands ceded in 1819 and 1835. Parsons vs. Roundtree, 1 Hay. 378: Houston's lessee vs. Pillow and Thomas, 1 Yerger, 481.
    2. The land called for in plaintiffs’ grant lying south of this line and within the territory reserved by the Cherokee Indians under the treaty of 1819, the grant is void. The grant having issued before the Indian title was extinguished, could confer no title upon the plaintiffs, the State of Tennessee not being at that time the owner of the land. M’Lemore vs. Wright, 2 Yerger, 326: Polk’s lessee vs. Wendell, 5 Wheaton, 303.
    Turley, J-. delivered the opinion of the court.
    Certain articles of convention between the government of the United States and the Cherokee nation of Indians were concluded and signed at the city of Washington on the 27th day of February, in the year 1819, by the first of which the Cherokee nation ceded to the United States all of their land north and east of the following line,, viz: beginning on the Tennessee river at the point where the Cherokee boundary with Madison county, in the Alabama territory, joins the same; thence along the main channel of said river to the mouth of the Hiwassee;-thence along its main channel to the first hill which closes in on said river, about two miles above Hiwassee Old Town; thence along the ridge which divides the waters of the Hiwassee and the Tellico to the Tennessee .river at Tallassee; thence along the main channel to the junction of the Cowee and Nanteyalee; thence along the ridge in the fork of said river to the top of the Blue Ridge; thence along the Blue Ridge to the Unicoy turnpike road; thence by a straight line to the nearest main source of the Chestatee; thence along its main channel to the Chatahoochie, and thence to the Creek boundary.
    By the fifth article of said convention provision is made that the boundary lines necessary to designate the land thus ceded shall be run by a commissioner or commissioners to be appointed by the United States, who shall be accompanied by such commissioners as the Cherokees may appoint, and that all white people who had intruded or might thereafter intrude on the land reserved for the Cherokees shall be removed by the United States. These lines, so far as it was considered necessary, were run in pursuance of said fifth article of the convention.
    
      The Legislature of the State of Tennessee, by act of 1819, ch. 59, (2 Hay. and Cobbs, 139,) laid off the tract of country thus ceded by the Cherokee nation to the United States into a surveyor’s district, to be called the “Hiwassee District,” and appointed a surveyor general with power and authority to engage a sufficient number of skilful surveyors to run out and survey the land acquired by this treaty from the Cherokee Indians, lying between the Hiwassee, Big Tennessee and Little Tennessee rivers, and north of the Little Tennessee, to which the Indian title had been extinguished preparatory to a sale of the same by the State. In January, 1830, the Legislature of the State passed an act, by virtue of which any person or persons wishing were authorized to appropriate any vacant land in the Hiwassee district which had not been surveyed and sectioned under the provisions of the above-mentioned act of 1819, in quantities not exceeding five thousand acres. Session Acts of 1829, ch. 85, p. 114. Under the provisions of this Act the plaintiffs in error, Nicholas S. Peck and John F. Gillespie, did, on the 11th day of October, 1833, enter five thousand acres of land, upon which they procured a grant from the State on the 3d day of June, 1834. This land lies south and west of the boundary line as run by the commissioners of the United States, accompanied by the commissioners of the Cherokee nation, from the point on the Hiwassee river, two miles above Hiwassee Old Town, where the first hill closes in with the river, to the Tennessee river at Tallassee. In the year 1835 a further convention was concluded between the government of the. United States and the Cherokee Indians, by which they ceded all their land within the limits of the State of Tennessee to the United States. For the purpose of disposing of this land the Ocoee district was established by the Legislature in November, 1837, intended to embrace all the land ceded by the convention of 1835, and which lay south and west of that ceded by the convention of 1819. The defendants, under the Act of 1837, entered and procured grants from the State in 1839 for the premises in dispute, and which are covered by the grant for five thousand acres issued to the plaintiffs on the 3d day of June, 1834, and the question now is which of them is the better title.
    The State of Tennessee exercises the power of perfecting titles to land within her borders by virtue of the compact made with North Carolina in 1804. This compact was recognized and confirmed by the Congress of the United States in 1806, but the power given by it was restricted to land north and east of what has since been called “the Congressional Reservation line,” and to which the Indian title should be extinguished; for it is expressly provided in the Act that “nothing herein contained shall be construed so as to affect the Indian title.” Under this compact, thus limited by Act of Congress, the State of Tennessee has never claimed or possessed, the power to appropriate land to which the Indian title had not been extinguished, and entries and grants for that purpose, whether made by accident or design, have invariably been held to be void and to convey no title whatever. "Then the point upon which the conflicting rights of the parties *to this suit turns, is the period of time at which the Indian title to the premises in dispute was extinguished, viz: whether by the convention of 1819 or 1835? If by that of 1819, the land belongs to the plaintiffs; if by that of 1835, to the defendants. That the land is not embraced within the lines as run by the commissioners under the convention of 1819 is not denied, but admitted. But then it is contended that the line from the first hill which closes in on 'the Hiwassee river, about two miles above Hiwassee Old Town, to Tallassee, on the Tennessee river, is run too far north; that if it had been run as it-should, according to the calls for natural objects made in the treaty, it .would have been far enough south to have included the disputed premises. Whether this portion of the line be correctly run or not, we do not deem worthy of consideration; it is sufficient that it was run by the contracting parties; that they were satisfied with it, and have acquiesced in it. The State of Tennessee had no right to complain; the extinguishment of the Indian title was an act of gratuity on the part of the general government, for it is expressly provided in the before mentioned cession Act of 1806, that “nothing herein contained shall be so construed as to subject the United States to the expense of the extinguishment of the Indian title.” The State of Tennessee and her citizens are bound by the lines as run under the convention of 1819, and the consequence is that the Indian title to the land in dispute was not extinguished until the convention of 1835, and that the entry and grant under which the plaintiffs claim are void and convey to them no title. The judgment of the court below in favor of the defendants, will therefore be affirmed.
    
      Evans was elected in March, 1836, register for Claiborne county, and died in 1837. Hurst was appointed on the 4th of April, 1837, to fill the vacancy. On the 3d of March, 1838, he was elected register by the qualified voters of the county, the first election for county officers being held on that day: Held, that Hurst was constitutionally elected and in office for four years from the date .of said election.
    George Powers filed his petition in the Circuit Court of Claiborne county on the 14th of May, 1840, setting forth that he was duly and constitutionally elected' register of said county by the qualified voters thereof; that he had taken the oath required by law, and given bond and security for the performance of the duties of the office; that he had applied to the former register, Hurst, for the books and papers belonging to the office, and that Hurst refusing to -give them up, he had procured an order from the county court for the delivery of them, and that said Hurst had disregarded the order. The petitioner prayed that a mandamus issue. Hurst answered and stated that on the 4th day of April, 1837, he was appointed by the justices of Claiborne county to fill a vacancy in the office of register, occasioned by the death of Evans, the first register, elected in 1836, ajid that at the first election for county officers thereafter occurring, to wit, on the. 3d day of March, 1838, he was duly and constitutionally elected register. of the county for and during the term of four years from the date of said election, and that he took the oath of office, gave bond, &c., and therefore claimed to be the lawful register for the term of four years from the 3d of March, 1838.
    The cause came on to be heard at the May term, 1840, of the Claiborne circuit court, and the facts set forth in the answer being admitted to be true, the court (the honorable R. M. Anderson presiding) dismissed* the petition of Powers'. Powers appealed in error to this court.
    
      Peck, for petitioner.
    
      J. A. McKinney, for defendant.
   Green, J.

delivered the opinion of the court.

At the first election of county officers in Claiborne county under the amended constitution, Walter Evans was elected register of that county. In 1837 he died, and the vacancy was filled by the justices of said county on the 4th day of April, 1837, by the temporary appointment of the defendant, Hiram Hurst, to that office. On the 3d day of March, 1838, at the expiration of two years from the time of the first election, an election was held in said county to fill the vacancy occasioned by the expiration of the term of service of the sheriff and trustee; and an election was also held at the same time for register of the county, and the defendant was duly elected by the qualified voters thereof to that office. The defendant entered into bond, conditioned to discharge the duties of register faithfully for the next four years, and was qualified accordingly. At the time of the election of county officers in March, 1840, an election was held for register of said county, and the plaintiff, George Powers, was elected, gave bond and security, and was qualified as such officer. The plaintiff applied for the boohs and records belonging to said office, but the defendant refused to give them up, alleging that the time for which he had been elected being unexpired, he was still lawfully and constitutionally the register of Claiborne county. To obtain the said records, and to be let into the said office, this petition for a mandamus was filed. The circuit court, on consideration, dismissed the petition, and the plaintiff appealed in error to this court. The only question now for consideration is, was the election for register in March, 1838, constitutional? or should the temporary appointment of the justices have continued until March, 1840, the end of the time for which Evans had been elected? The constitution, art. 7, sec. 1, provides that “there shall be elected in each county, by the qualified voters therein, one sheriff, one trustee and one register; the sheriff and trustee for two years and the register for four years.” In the 2d section it is provided that “should a vacancy occur subsequent to the election in the office of sheriff, trustee, or register, it shall be filled by the justices; if in that of clerk, to be elected by the people, it shall be filled by the court, and the person so appointed shall continue in office until his successor shall be elected and qualified; and such office shall be filled by the qualified voters at the first election for any of the county officers.” ■ From these provisions it appears that these county officers are to be elected by the people of the county. They are constituted the general appointing power. Should a vacancy occur, it is to be filled by the justices. But this is only a temporary appointment; and the office is to be filled by an election by the people “at the first election for any of the county officers.”

Two prominent objects are manifest in these provisions. In the first place that the officers should hold their offices at the will and by the voice of the people; and secondly, that the public tranquility should not be unnecessarily disturbed by causing the people to assemble for the appointment of a single officer, whenever by death, resignation or removal, any one of these offices might become vacant. Had the people been called on to fill these vacancies whenever they might occur, the popular assemblages would have been so frequent as to be exceedingly inconvenient, and the excitement attendant on elections demoralizing in their character, would have been a very great evil. Therefore the justices, who assemble at their county courts every month, are charged with the duty of filling these vacancies for the time being. But as it was thought desirable that these officers should be elected by the people, ’ there was no reason that the appointee of the justices should hold his appointment longer than until the next election for county officers. At that time the people must assemble for the election of those officers whose period of service may have expired; and they could as conveniently elect an additional officer as to elect those for whom they were called together to vote. Hence the constitution very properly provides that “such office shall be filled by the qualified voters at the first election for any of the county officers.”

The language of this provision is explicit, and in order to show that the temporary appointment should be made by the justices for the remainder of the unexpired term of the predecessor, a clear and manifest intention of the convention should be made to appear. But no such intention seems to have existed. To preserve uniformity in the appointment at the same time of officers of the same grade throughout the State, would be a matter of small moment and of no practical utility. But if it were a matter of greater importance than it is supposed to be, it would be unattainable. New counties have been admitted and will continue co be constituted ; the organization of which, by the election of county officers, would necessarily mar the supposed beauty and harmony which would result from preserving the terms of office entire;, while on the other hand the people would be kept for a great length of time from the exercise of the appointing power which it was thought important for them to retain. Upon the whole, we are satisfied that the words of the constitution in providing that an office where there has been a temporary appointment by the justices “shall be filled by the qualified voters at the first election for any of the county officers,” express the meaning of the framers of that instrument, and therefore that the election for the defendant, Hurst, in March, 1838, waa regular, and consequently that his term of office will not expire until March, 1842. Let the judgment be affirmed.  