
    Bowers and others vs. School Commissioners.
    , In general, grants for school lands do not in form vest the title in any ¡person or body of persons in particular, but the grants upon their face designate or set apart the land to a particular use, that of schools for the instruction of children.
    After issue is joined in an action of ejectment by school commissioners, the title is only in issue; and it is too late for defendants to object to any supposed error or defect in the proceedings by which the lessors of the plaintiff were appointed commissioners.
    In an action of ejectment by school commissioners, it is not necessary to prove or show that the commissioners took an oafh, or gave bond and security. The order of court appointing them commissioners, is sufficient to authorize them to sue, unless it has been superseded and others appointed.
    This was an action of ejectment. The lessors of the plaintiff are described in the declaration as commissioners for the tract of school land in Tally’s Cove. Upon the trial, the order appointing them school commissioners was read. Upon the trial below, the court were requested to instruct the jury, 1st. That the commissioners ought to have taken an oath as required by law, which should have been proved upon the trial. 2d. That it ought to have been proved that they entered into bond and security, as required by law. 3d. That the act of 1831, ch. 17, was so far a repeal of the act of the same session, ch. 15, that three commissioners only ought to have been appointed for Franklin county, and that they could not have been appointed before January term, . . , fr,, i , . . i 1832; and 4th, That the order appointing them comixns-sioners was not sufficiently special in describing the land.
    The court refused to give any of the instructions as above requested; whereupon á verdict and judgment were rendered for the lessor of the plaintiff, and an appeal in the nature of a writ of error prosecuted to this court.
    
      M. Taul, for plaintiff in error.
    The defendant asked the court to instruct the jury, 1st. That before the school commissioners could legally do any act they ought to have taken an oath of office, &c. which the court refused to give.
    This was erroneous. School commissioners are officers, and as such are required by the constitution to be sworn. See Const, of Ten. Art. 9, sec. 1. The State vs. Kerby, in this court. 5 Bac. Ab. title Office and Officers. It is said, that the word officium, principally implies a duty, and in the next place, the discharge of such duty; and, that it is a rule that where one man hath to do with another’s affairs against his will and without his leave, that this is an office, and that he who is in it is an officer.
    Every man is a public officer who hath any duty concerning the public; and that he is not the less a public officer where his authority is confined to narrow limits, &c. Page ISO.
    Office signifies a place of trust; and therefore the statute 3 James I, ch. 5, enacts that no popish recusant shall exercise any office or charge. 5 Mod. 431.
    On this point the court said to the jury, “that the legislature had the right to declare when and how the oath of the school commissioners should be taken; this the legislature have declared should be done at the time of making the annual return of their proceedings.” See 7th section of the act of 1831, ch. 15.
    With deference to the learned judge, it may be said that the oath above required by tlic 7th section is not an oath of office.”
    It is a requisition in relation to part only of their duties. They had other duties to perform besides making returns.
    The legislature, in requiring theil returns to be 'made upon oath, did not intend to dispense with the oath of office, and the oath to support the constitution, as required by article 9, sec. 1, “to be taken before entering on the duties of their office, and not afterwards when making returns.”
    Nothing is more common than for the legislature to require sworn officers to do particular acts or make returns upon oath.
    See act of 1827, ch. 49, sec. 6, (Hay. and Cobbs, 358) “sheriff or collector to report on oath to the first court in each and every year,” &c.
    “Sec. 10. Clerks of the county, circuit and supreme courts to render on oath to the commissioners of the county revenue, an account,” &c.
    Act of 1825, ch. 51, sec. 11, (Hay. & Cobbs, 367) “county trustee is required to make report of all moneys, &c. on oath.”
    Executors and administrators to return inventory on oath. 1723, ch. 10. Dig. 104.
    It is believed that similar instances, to an almost indefinite number, might be found in other acts of the legislature; but the foregoing are deemed quite sufficient, if any thing was required in aid of the provision itself, to prove that the legislature did not mean by requiring a particular act to be on oath, to dispense with the oath of office, &c.
    The commissioners had other important duties to perform. See the act. They were required to lease out the land; build school houses; employ teachers; see to the preservation of the timber; commence and prosecute suits. But according to the construction given by the circuit Judge to the act, by which they were appoint' cd, all these duties were to be performed without the sanction of an oath; they were only required to be sworn to their return.
    The defendants also asked the court to instruct the jury,-2, That the commissioners could not legally act until they had given bond and security as required by law; which the court refused. The act before referred to requires bond to be given in the sum of one thousand dollars, with security, to be approved of by the court, &c. • The order said the commissioners should enter' into bond. Page 8. The circuit Judge said, “the act of assembly is directory to the county court, and this court must presume the county court have done their duty in taking such bond in the absence of all other proof.”
    Now the act the court directed to be done, (entering into bond, page 8) was to be done after the appointment; it was the condition upon which the persons were appointed commissioners. If they failed to give the bond, they were not to be commissioners; in fact, the giving bond even according to the order of the court, was a condition precedent to be performed by the persons appointed. There is no fact appearing in evidence from which the court had a right to presume the other fact, to wit, that bond had been given. If the court could presume that, why not presume also that the commissioners had been sworn?
    If they had either been sworn or given bond, it must have been done in court, and of course record evidence could have been furnished.
    3. The defendants also moved the court to instruct the jury that the act of 1831, ch. 17, was so far a repeal of the act of the same session, ch. 15, as that three commissioners only ought to have been appointed for Franklin county, and that they could not be appointed before January court, 1832. See ch 17, sections 14,15, pages 33-4. * 6
    This instruction the court refused to give. This is eiTOXieOUS.
    4. The defendants also asked tbe court to instruct the jury, that the order appointing the commissioners was not a sufficiently special designation of the tract of school land. But the court refused to give the instruction.— This, we contend, was also erroneous.
    There was nothing in the title papers or written evidence to prove that this tract of school land was in Tally’s Cove. The only evidence was that of May. See page. 9.
    There was a verdict and judgment for the plaintiff, and a motion for a new trial, which-was overruled.
    The new trial ought to have been granted, because of the erroneous instructions of the court, and because the jury found against evidence
    
      James Campbell, for defendants in error.
    The defendants in error were appointed commissioners under the act of 1831, ch. 15, making it the duty of the county courts in Middle Tennessee, in which school íands are situated, to appoint five commissioners for each tract of school land within said counties, whose duty it shall be to rent or lease such tract, &c.
    The 2d section enacts, that it shall be the duty of the commissioners of each tract to enter into bond, &c. for the performance of their duties, &c.
    The 3d section enacts, that said board of trustees of commissioners, shall have a right to sue, &c. and by the ninth section of the act, each board of commissioners are vested with full power to commence and prosecute actions of ejectment against all and every person who may be in possession of the tract of school land, or any part thereof, for which they were appointed commission^ ers, &c.
    
      TWs aot passed tho 39th of October, 1831. Ai, íi¡>;. November term following, the county court of Franklin county appointed the lessors of ilie plaintiff, school commissioners. The order is certified by the clerk in those Words:
    “State of Tennessee, Franklin county- — Conr/íy court, November term, 1881. Ordered by the court, that the following persons bo appointed commissioners for the terra of five years, for the tract of school land in Tally’s Cove, lying in Franklin county, in conformity to am act of Assembly in such case made and provided, to wit: John Hawkins, Hugh Montgomery, Lewis Ferl-fixK, Isaac T. Hines and William Barnes, who shall enter into, bond and security in tho sum. of one thousand doiiars, for the faithful discharge of their duties as commissioners for the tract for which they are appointed as commission" ers aforesaid, as directed by Jaw.”
    After the passage of the act above mentioned, and after the appointment of said five.commissioners, the Legislature passed another act supplemental to the former, (eeo ch„ 17, page SO) and by the Í <Uh section of said acr, k is provided, “that as regards tho county of Franklin, uhreo commissioners shall be sutheient to bo appointed! for any one tract of school land, vested with the sutie 'power:; kí the five > an; in tiio act to 'which this is a sup-•picmüi'iíy'" su'd by dio f bilt section of tho act, H is vidci', ¡Jíaí it shall in¡ ffic dniy of flic county cum-is A the couuíio;: '-.¡'í;¡r;..:;.'í sohoo* .can,; he, at .heir first anil r-;ecuü.:i ain.". ibi f.4 of ÁuiKyy mr.i, io attend k> ibis a.cp, njiíI to -"in, <);!.'• .e iii"1 lí Mur v a ;.¡ipp’ltítiiiui. 'Mito; Iüí;!, aci vto'S ¡mneá ihi.*. ,'i'tdíj * oí" JA coimL-'.,, rMpf, tin,1, ujipuliiücoei' <A ¡to five co'iiiiiisraoxi'ixs toor*"." saiti, ii> |iiujitunce o' i; ;v,i; to tho i'lnJi vi í.i.ito'trpns*-vtoirE fAia'i/jW-ii h)' mi aií’jn.ai'Mi to. ¿be *„>• tí v.toi to', .tor-to On! rj Él.'. Vv i o.' o:.-1 i.jtin.'iV.. vid.»’'..::j.rr\i <. :.>■■ tod,/ “to to.:. to>n "..’mi: to U,” /;./.jto V,. , r'll. if iv: 1 ... V f" I.J/ ¿>-,,0 tototo bo afekiení. The <mo iví\l-er, Jf íbe íbiy oí >.ho county „ . „ „ L' J (‘.(.«i-i; in appoint u»o «on.wa3sr,ooKi, ese. uut aoos not 3iix«c«be fhe time. Tile i¡oftoj>d act ioaferil, specially míc «no. o(’ feo coirfe court ío attend Lo í.'ho provisions A <fe ;ívm acu kí fíicír fúr-í and second fe'n after the '.■■X i ky r' ''injviy ¡fea-Aa-, líiut iti3 if ibcy ü.-.A no i. pea-Coi' i\ fe 1'fec fi"innu,;-rj’o.i í;j o-nte lawfully ip. ■ í.íí'í'-jr'; femn ■?¡r;ioúu al, piu’snan'. te tito así oí íAb.h October, .k'Si, and overo not legislated ooí, oí oííwc by the Wkfi, section of the act of the OOili of’Bocetabcr, afíe»
    if, ufe objected by tbo piaraíiíTs in error, that the ds-fonfefe 'lid not show that they fed given bond as m* qife'vA by Luv- Up on this poini, the'com t charged the ' fey cfeufe act of Assembly n 43 directory io the county rruvi'j nnd iba): the birci!;'; court ?.in<st presume that the ■aoir,)!;' court fevo dono their duty in.taking such bond, in •k«c ,'b::--H<;o of all other proof; ^jul it is insisted by ihe dvíbii'l'vi.i fe errar, -luí ¡bis dk»r;;o is aL least ns favors-i;l-' ihe fe'bpclarit; below contti ask it- Suppose a man A vnxfeufe bheniT or fe?;1]', and feu oouct takes a bond. in - •tair-miiy ¡ufe ¡he soi or feseiubly, or say, if ■y'-M y-k-nra, :fe,t a blank hood is take.'’, are all ifes acts bofe, fe fvíheí', vitwíod nr sendere*.! void',1 It is confe f :;i'y fell:,, oil they are ;rot. Tbo 2oí is directory to ¡fe \.'‘ii¡r’k‘ carafe If they fail to tiko ¿to bond, it is ah -, felfefey. fe dniyj but their acts are sail legal.
    
      ‘■it was a’if.'. Agisted by the defendants ¡.«clow, that the fend fioms'j.issioafire should take m oath of office, or Í03 as such.
    Arcrumr. The samo remarks made above will apply to fefe objection. Hat the act of Assembly does not re-y-am ife?: ihe eomfekfennas should be sworn, and if ¡hoy vea?, no*, fefe: vers r>m not rendsred with k ,h¡ bbc oihjaAefe ifeit thr order appointing the Sea» o-v of ;,i«- fafehnliA., ndfeol eaBirekricners io?’ the tract of nifotd Ann fe fefeiyk fevfe is fífelfeenUy speefe
    
      Answer. It is sufficiently special, unless defendants bad shown there were two tracts oí school lands in Tally’s Cove, which is not shown or pretended.
    The declaration describes a tract of school land in •Tally’s Cove. The report of Mitchell K. Jackson, the surveyor who surveyed the lands in controversy, according to the title papers of the respective parties, shows the boundaries of the school tract substantially as set forth in the declaration; and this would of itself identify it as being the same tract for which the commissioners were appointed. Leroy May also proves that the tract of school land in Tally’s Cove lies in the 2d section of 9th range. The school tract was in the 2d section and 9th range. It was not necessary that it should be put down in the order of the court, that the lessors of the plaintiff were appointed commissioners of the school tract in the 2d section and 9th range.
    The counsel for the defendants also insisted, that the commissioners could not legally act, because they were appointed at November term, 1881, and that three, and not five commissioners, were the competent number to bring suits. Upon this point, I have already made my remarks.
   Peck, J.

delivered the opinion of the court.

This was an action of ejectment for six hundred and' forty acres of school land, in Tally’s Cove, 2d district. The plaintiff recovered a judgment. It is only necessary to notice the questions raised upon the trial. The court was called upon to instruct the jury that the eom-.missioners ought to have taken an oath; this the court declined to charge. The court was also called upon to charge, that the school commissioners should have given bond and security as required by law. This the court, also declined.

The court was further' called upon to instruct the jury, that the act of 1831, ch. 17, was so far a repeal of the act -of the same session, (ch. 15), that three commissioners only ought to have been appointed for Franklin county, and that they could not be appointed before January term, 1832. This the court also refused to do.

The court was further called upon to charge, that the order appointing the lessors of the plaintiff commissioners, wag not sufficiently special in describing the land. This the court also refused to charge.

A verdict and judgment were rendered for the plaintiff. A motion for a new trial made, and overruled.

The grants for school lands, in their form, do not vest 'the title in any person or body of‘persons in particular. See act of 1817, ch. 126. But the grants, .upon their ..face, is a designating and setting-apart. the land to a particular use; that of schools for the instruction of children.

When these defendants entered -their plea, upon which issue was taken, they confessed lease, entry and ouster,, and put themselves upon their title only, and that was the matter to be tried. We will not inquire if any person could sue for and recover, so as to preserve the estate and advance the use; it is enough in this case, to show that prima facie, these plaintiffs in the action of ejectment were commissioners; they represent themselves as such in the frame of their declaration, and sustain that description by an order of the court appointing them. To allow the defendants to examine for errors in all the proceedings constituting the plaintiffs commissioners, would be permitting the defendants to depart from the matter in issue. The acts of Assembly, taken together, are broad enough to make persons accountable for holding the school lands, and recovering the rents. The very act of suing, places them in a condition which forbids them to deny their character of commissioners. The court, to preserve the use, will apply every intendment of law in-support of it, rather than that the use should fail, or the title be defeated for the want of a person to preserve it.

|*ot m the caso beiorn tlio court, wc arc pot driven ¿o a strained construction-to support the power to cao.— When the issue is inade, it must be fried upon ibo opposing titles. j'Toro was a grant dosiguwiinp; ovid noiUug apart this hind a,.; school laud; a lease confessed, and au ■igi'cinmont to try upon ihc title.

Wo arc bound to suppose, that as far as the title was concerned, the court insti-mitcd the jury correctly. The c’jJl for ins< ructions on tito points stitoil, was a. demand by she defendant to have charges upon points wholly im-ir.'dorinl, ard which, had they boon decided, would not. iiu.vo p/wed tho title of tho defendants tho superior titlo'f

P,ma facie, the proper persons wore phiiniifib before inn court to preservo ihc estate," and as it is probable the school giant was the older and bettor title, for any thing r.bmvn to the contrary in tbo record, their right, to sun K'íir.e bo ij.'b.u t..s ktsíücícíií, ünJorc the defendants bad r.h«*w that they had been superseded by the appointment «if u'ihroi, ‘Tin ai-thorny in thcr.o pkinii-Ts wis sufficient, iko orcos «'/, tic v.nui.y court 7cited in íbesn tho ¿<-bí to wo, mid afvi they Cwto’I 4o grrc bend, could isor defeat ¿lie sailhi >kiiy.

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