
    Calloway v. Hopkins.
    Grants byNorth Carolina. Cession of 1789. Act of 1778 as to lands west of Brown’s line. Act of 1819. After the cession of the territory now constituting the State of- Tennessee by North Carolina to the United States in 1789, and the acceptance thereof by the United States in 1790, North Carolina could only legally grant land which previously to the cession, had been validly entered, and thereby an incipient and inchoate title had begun which, by the terms of the cession, might be perfected into a title by grant. But North Carolina had no right, after 1789, to commence proceedings in the ceded territory, to be the foundation of a valid grant. The Act of North Carolina, 1778, declared all entries and grants west of Brown’s line, made before that Act and afterward, void. The Act of 1819 of Tennessee simply de-r elared grants and entries made west of Brown’s line good in so far as rendered invalid by Act of 1778. But this does not make valid a grant like the one in judgment issued by North Carolina in 1794, and not shown to be founded upon a valid entry, made previous to the cession act of 1789. Suck a grant might be good so far as the acts of 1778 and 1819 are concerned, hut is utterly void because made after North Carolina had no land in the territory west of the Alleghanies to grant.
    FROM M’MINN.
    Appeal from Circuit Court of McMinn. W. P. Hiokerson, J.
    John C. Gatjt, for plaintiff in error.
    The plaintiffs claim title to the land sought to be recovered by them in this action, to-wit:
    Jolly’s island, by virtue of a grant, No. 201, from the State of North Carolina to John Hacket and Stokeley Donelson, dated July 17, 1794, and by mesne conveyances from Donelson down to Thomas Hopkins. The plaintiffs can show no conveyance from John Hacket to Stokeley Donelson, or to any one, under whom Thomas Hopkins claimed the lands described in said grant.
    First. "We insist, and we think we can demonstrate, to the entire satisfaction of the court, that said grant to Hacket and Donelson is void, and never did vest in Hacket and Donelson any title to the land described in said grant, because the State of North Carolina, on the 3d day of December, 1789, ceded to the government of the United States all the territory comprising the State of Tennessee, nearly five years before the date of said grant to Hacket and Donel-son, which was accepted by an Act of Congress of the United States,' approved by Washington, President, on the 21st day of April, 1790, and, therefore, at the •date of said grant of July 17, 1794, the State of Horth Carolina had no title to the land described in said grant, or to any other vacant lands in the territory ceded to the United States nearly five years prior to the date of said grant. Haywood & Cobb’s Land-laws, 9-11.
    The law does not presume an entry to support the grant. If it is insisted by the plaintiffs that said grant, bearing date July 17, 1794, relates back to some legal entry before the Cession Act of December 3, 1789, they must produce the entry; and the grant to Hacket and Donelson must purport upon its face to be founded upon such entry. If no such entry is produced, the grant is void. Or if produced, and the entry taker had no right to receive the entry, the grant is void. Polk’s Lessee v. Hill, Wendell et al., 2 Tenn., 160, 161; Patton & Erwin’s Lessee v. Ca-rothers, Cooke 148, Cooper’s edition, 147, 148; Done-gan v. Taylor, 6 Hum., 501-504; Crutchfield v. Hammock, 4 Hum., 203.
    In the case of Polk’s Lessee v. Hill, Wendell et al., above referred to, the defendant’s, grant referred to warrants purporting to have issued upon entries made before the Cession Act of 1789, but the plaintiff proposed to prove that in point of fact no such entries had been made in the entry taker’s office referred to, and that the warrants relied upon by defendants were forgeries. The court refused to permit the proof to be made. The plaintiff appealed in error to the Supreme Court of the United States, and the judgment of the court below was reversed.
    Chief Justice Marshall, delivering the opinion of the court, said:
    “ But if the warrants had no existence at the time of the cession — if there were no entries to justify them,, what right could this grantee have had at the time of the cession ? The court can perceive none, and if none existed the grant is void for want of power in the State of North Carolina to make it.
    “ If entries were made in Washington county under the Act of 1777, but upon land forbidden by the 9th section of the Act, the grant is void by the express words of the law. Or if the entries were made upon lands subject to entry, but no commencement of right had taken place in the ceded territory previous to the cession, so as to bring the party within the reservation contained in the Act of cession, then the grant must be void, there being no authority in the grantor to make it.” Polls’s Lessee v. Hill, Wendell et al., 9 Cranch, 3d vol. of Con. Reports, p. 325. This case is directly in point. If there was an entry, survey, and grant for land in that part of the territory not subject to entry, the grant is void. If there was no entry and survey before the Cession Act, the grant is void. Applying these rules of law to the grant to Hacket and Donelson, dated July 17, 1794, it is manifest that the grant is void. It refers to no entry or survey, it refers to no incipient title before the Cession Act of 1789, but stands alone upon its date, and cannot have a relation back prior to the 3d of December, 1789. An entry must not only be shown,, 'but it must be a legal entry to protect the grant. Donegan v. Taylor, 6 Hum., 501; Crutchfield v. Hammock, 4 Hum., 203.
    The Supreme Court of Tennessee has settled the rule of law in all cases that the grant is to be declared void when the State has no property in the land granted, or where the officers have no power to receive the entry and issue the grant. Curie v. Barrel, 2 Sneed, 63; Woodfolk v. Hall, ”2 Sneed, 674; Crutchfield v. Hammock, 4 Hum., 203; Roach v. Boyd, 1 Sneed, 135; Polk v. Hill, Wendell et al., 2 Tenn., 161; 3 King’s Digest, sec. 7934.
    And it will not be claimed by the plaintiffs’ counsel that the State of North Carolina had any title to Jolly’s Island on the 17th day of July, 1794, the date of said grant to Hacket and Donelson, nor did the State of North Carolina have any title to said land after the Cession Act of December, 1789. And to satisfy the Hon. Court beyond question, as we think, that at no time prior to said Cession Act of 1789, could Jolly’s Island have been legally entered, we refer to the Act of 1778, ch. 3, sec. 5 of North Carolina, which defines the Indian boundary by a line running across upper East Tennessee from the Virginia line to the Holston River at the mouth of Cloud’s Creek, and thence south to the highest ( point of the High Rock or Chimney Top Mountain, etc., which line, ever since, has been called Brown’s line. Haywood & Cobb, 20. And said section 5, expressly forbids any.entries of land west of said line within the Indian boundary; and furthermore, provides that all entries theretofore made, or that might thereafter be made west of said line within said Indian boundary, are utterly void, and. of no force or effect. Then followed the Act of 1783, ch. 2, sec. 5, enlarging the western boundary of the ■State of North Carolina for the purpose of entering lands, but the 4th section declares that all entries that may have been made, and all grants that may have issued, or that might thereafter- issue, upon entries west of said boundary line defined in said sec. 5 of the said Act of 1778, ch. 3, null and void. Haywood & Cobb, 26. Section 5 of said Act of 1783, defines the boundary of the Cherokee Indians as follows: ■“ Beginning on the Tennessee, where the southern boundary of the State intersects the same, nearest to the Chickamauga towns; thence up the middle of the Tennessee and Holston to the middle of French Broad; thence up the middle of French Broad (which lines are not to include any island or islands in the said river) to the mouth of Big Pigeon, etc. And the lands contained within the aforesaid bounds shall be, and are hereby reserved tinto the said Cherokee Indians and their nation forever.” It will be observed by the court that the middle of Tennessee river is the ■boundary by this Act, and Jolly’s Island being south of the middle of Tennessee river, was within the Indian boundary, and not subject to be entered and granted.
    Section 6 expressly declares that no entries shall be made within said Indian boundary, under a penalty of fifty pounds in specie, and that all such entries and the grants thereupon shall be void. By sec. 24 this last Act did not take effect until the 1st day of August, 1783, and was suspended,- and the land office closed, on the 25th of May, '1784, by the Act oí' 1784, ch. 12, sec. 3. Haywood & Cobb, 29. And said land office never was reopened again. The reason for suspending said Act of 1783, is given in said Act of 1784, sec. 1, because at the same session of the Legislature of North Carolina an Act had been passed ceding to the United States all the territory belonging to the State of North Carolina lying west of the Apalachian or Alleghany mountains on certain conditions, and the State awaited the acceptance or rejection of the United States. The United States never accepted said cession of 1784, and during the suspension said Cession Act of December, 1789, was passed, which was accepted by the United States, and the legal title to all the lands in said ceded territory passed in fee to the United States long before the date of said grant to Hacket and Donelson, under whom the plaintiffs claim in this action.
    We have now shown by the several acts of the General Assembly of the State of North Carolina that by no law of that State prior to said Cession Act of 1789, was Jolly’s Island subject to entry. No legal ■entry could be made upon it. - It was within the Indian boundary, as defined by all the North Corolina statutes; and by the express letter of the statutes, as before shown, entries of land within the Indian boundary were forbidden under heavy ■ penalty, and if made, the entries and grants that might be issued were declared absolutely null and void.
    
      And after said cession of 1789 to the United States, neither the State of North Carolina nor the State of Tennessee, while in territorial condition, nor after her admission as a State in 1796, could in any manner dispose of one foot of the vacant and unappropriated lands in Tennessee before the act of Congress in 1806. Miller’s Lessee v. Holt, 1 Tenn., 245; Folk’s Lessee v. Wendell et al, 9 Cranch, 87; 3 Con. R., 325. In the latter case the judgment of the court below was reversed because the defendant’s grant bore date in 1795, after the cession to the United States, and the grant upon its face referred to no legal entry before said Cession Act; and therefore the grant could not relate back prior to the cession. Although, in that case the grant was for lands that were subject to entry before the cession of 1789. If such be the uniform decisions of the State and Federal courts, how can the grant to Hacket and Donelson be held valid? It bears date July 17, 1794; it refers to no entry ■prior to December 3, 1789, and if it did, we think we have shown beyond ¿11 question that no legal entry could have been made of the land in dispute in this cause prior to the cession of 1789.
    The title to all the vacant lands in Tennessee remained in the United States from the date of the cession in 1789 until Congress passed an Act on the 18th of April, 1806, ceding to the State of Tennessee all the vacant land lying north and east of a certain line, known as the Congressional Reservation Line, upon certain terms and conditions, one of which was that the State of Tennessee should relinquish all claim to the vacant lands lying south and west of said line. Said Act of Congress was accepted and ratified by an Act of the General Assembly of the State of Tennessee in 1806, ch. 10 Haywood. & Cobb, 13-15. By this Act the State of Tennessee was for the first time vested with the legal title to the public lands in East Tennessee, or vested with any right to dispose of the same, but not then vested with any right to authorize entries to be made upon any lands within the Indian boundares reserved to the use of the Indians, or to issue grants for such lands. The Government of the United States reserved to Itself the sole right to make treaties with the Cherokee Nation of Indians, and extinguish the Indian right of occupancy of the different tribes of Indians in this State. The first section of said Act defines said .Congressional Reservation Line. Haywood & Cobb, 13, 14. All entries ever made within the Indian boundaries have been held void. MoLemore v. Wright, 2 Yer., 326; • Gillespie et al. v. Ounningham, 2 Hum.,. 19; Polk’s •Lessee v. Wendell et al., 3 Con. R., 319; Preston v. Browder, 3 Con. R., 467; Cook’s Lessee v. Dodson et al., 1 Tenn., 169; Latimer' v. Poteete, 14 Peters, 4.
    And if the plaintiffs had shown an entry under the Act of 1783 it would be void, because made upon lands within- the Indian boundary by the express provisions of the 6th section of said act as before shown. The entry and grant would be void on that account, and void upon other grounds, because abrogated and annulled by treaties made between the Government of the United States and the Cherokee Nation of Indians before the date of the grant to Hacket & Donelson,. and treaties made after the date of said grant. The treaties of Hopewell in 1785, article 4, Haywood & Cobb, 198, and Holston in 1791, article 4, Haywood & Cobb, 200, each define the Cherokee boundary lines,, and wholly ignore the boundary defined by said Act of North Carolina of 1783, ch. 2, sec. 5; and so do-the treaties with the Cherokees at Philadelphia in. June, 1794; at Tellico, 2d of October, 1798, and at Tellico 5th of October, 1805. Article 2 of said latter treaty is necessary to be noticed, because it secures all the islands in the Tennessee river to the Cherokee Nation of Indians. Haywood & Cobb, 205.
    The above treaties have been construed by the- Supreme Courts of the United States and of the States of North Carolina and Tennessee, in connection with the treaty of 1777, made with the Cherokees by the State of North Carolina, when it was an independent State, before the adoption of the Constitution of the United States, to abrogate all entries and grants for-land under the Act of 1783, and subsequent Acts, for lands guaranteed to the Indians, or lying within their boundaries prescribed by said treaties. Preston v. Brow-der, 1 Wheaton, 115; Danforth v. Thomas, 1 Wheaton,. 155; Danforth v. Wear, 9 Wheaton, 673; Patterson v. Jenks, 2 Peters, 216; Avery v. Strother, Con. P., N.. C., 43; Latimer v. Poteete, 14 Peters, 4; Brightly’s Digest, 529; Polk’s Lessee v. Wendell, 9 Cranch, 87; Miller’s Lessee v. Holt, 1 Tenn., 243-245.
    .In the case of Latimer v. Poteete, 14 Peters, above referred to, it was argued by plaintiff’s counsel that it was not “in the power of the United States and the-Cherokee Nation, by the treaty of Tellieo in 1798, to vary in any degree the treaty line of Holston so as to affect the private rights of the plaintiff. McLain,. Judge, delivering the opinion of the court, on page-14, Curtis’ edition, page 317, says:, “It is a sound’ principle of national law, and applies to the treaty-making power of the ■ government, whether exercised with a foreign nation or an Indian tribe, that, all disputed questions of boundaries may be settled by the parties to the treaty. And to the exercise of these high functions by the government within its constitutional powers, neither the rights of a State nor those of an individual can be interposed.”
    By the Constitution of the United States, Art. 6, all treaties made, or which shall be made, under the-authority of the United States, shall be the supreme law of the land, and a state law repugnant to it is unconstitutional and void. Worcester v. Georgia, 6 Peters, 515.
    The treaty-making power is not subordinate to that provision of the constitution which declares that “private property shall not be taken for public uses without just compensation. That is a restriction upon ordinary legislation, not upon the action of the government through the treaty-making power which takes private property without compensation, or even one man’s property, and gives it to another for the public good.” 2 Meigs’ Digest, sec. 1886; Cornet v. Winton, 2 Yer., 143-166.
    I think I have shown that the grant „ to Hacket ■and Donelson is absolutely void. 1. Because the lands therein described were not subject to entry under the Act of 1783, ch. 2, or any other act of the State of North Carolina, because within the boundary set apart to the Cherokee Indians. 2. Because the plaintiffs have not shown any entry prior to the Cession Act of December, 1789, to which said grant can relate. 3. Because, if such entry was shown it. would be void for the two-fold reason, because the land lies within the Indian boundary, and because the treaty of 1777 between the State of North Carolina and the Cherokee Nation of Indians, reserved all that part of the territory, including the lands in dispute, to the use of the Cherokee Nation, and an entry upon the lands in dispute would have been an open violation •of said treaty, and also a violation of the Acts of 1778 and 3783 of the Legislature of North Carolina, as heretofore explained in my argument. And because subsequent treaties between the United States and said Cherokee Nation of Indians guaranteed and set apart to said Indian Nation a large boundary of country including Jolly’s Island, and by reason of said treaties and their legal and supreme effect, any entry that might have been made upon the lands in dispute before said Cession Act, was made null and void. But we deny that any such entry was ever made while the State of North Carolina held the legal title to said lands. And said grant being void, we have the right to show its invalidity in an action of ejectment, the same as in a court of equity. Owrle v. Barrel, 2 Sneed, 63; Polk v. Wendell, 2 Tenn., 433, and other cases heretofore cited in 3d vol. King’s Digest, section 7934.
    The Chei’okee Nation of Indians, retained possession of the lands in dispute, under their aboriginal right of occupancy, and by treaties -with- the State of North Carolina and the Government of the United States, down to the first day of January, 1820, and we insist that there never was a time, prior to the first of January, 1820, when the lands in dispute could have been legally entered and granted by any law of the State of North Carolina, or of the State of Tennessee.
    By the treaty made and concluded between the government of the United States and the Cherokee Nation of Indians, approved by the President and confirmed by the Senate of the United - States, on the 19th of March, 1819, article 1, the -Cherokees ceded to the United States all their territory north and East of the following boundary line: 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, etc., it being understood that all the islands in the Chestatee and parts of the Tennessee and Hiwassee (with the exception of Jolly’s Island in the Tennessee, near the mouth of Hiwassee, which constitutes a portion of the present boundary) belong to the Cherokee Nation. Haywood & Cobb, 215-217. Article 7 allowed the Cherokees to retain possession of the lands-ceded until the first of January, 1820, at which time the Indian title and right of possession of Jolly’s Island ceased for the first time in the history of the government. _ .
    ' And we most respectfully but confidently assert that at no time prior to the date of said treaty of 1819 were the lands in dispute subject to entry by any law of Tennessee or North Carolina; and not then, as hereafter shown. The treaty made by Henderson for the State of North Carolina with the Cherokee Indians in 1777, established the Indian boundary line at the mouth of Cloud’s creek, known as Brown’s line. The said Act of 1778, ch. 3, sec. 5, conforms-strictly to said treaty line, and makes all entries west of said line void. Said Act of 1783, eh. 2, sec. 5, is in open violation of said treaty of 1777, and for that reason absolutely void. But if valid, the 5th section makes the middle of the Tennessee river the line, and Jolly’s Island is on the south side of the river, and within the Indian boundary, as defined by the act of 1783, and not subject to entry by that act. This case is unlike the case of Cornet v. Winton, 2 Yer., 143. In that case the lands in question lie on the north side of the Tennessee river, and within the lines fixed by the Act of 1783, ch. 2, if the Act was legal and valid; and the entry was made 25th of October, 1783, in a short time after the Act went into operation, and before the entry taker’s office was closed under the Act of 1784, and before the Cession Act of 1789. But the court held that by the treaty of 1819 the title passed to the Indian reservee, Brown;, that the treaty was the supreme law of the land under the constitution. But tlj.e treaty of Holston, made-between the United States and the Cherokee Ration July 2, 1791, article 4, defines the Indian boundary line, and the lands in dispute lie within that boundary. And article 7 is in these words: “ The United 'States solemnly guarantee to the Cherokee Ration all their lands not hereby ceded.” Stronger language could not be employed- to perfect the Indian title to their land within said Indian boundary. Haywood & Cobb, 200. This treaty was recognized and confirmed by the subsequent treaties before cited. And since-then the cáse of Latimer v. Poteete, 14 Peters, 4, and other cases before cited, were tried before the Supreme Court of the United States, in which it was held that said treaties under the Constitution of the United States-were the supreme law of the land, and rendered null and void entries and grants from the State of Rorth Carolina for lands reserved by the treaty stipulations-to the Cherokee Ration. The Supreme Court of the-United States went further than the Supreme Court-of Tennessee in the case of Cornet v. Winton, 2: Ter., 143.
    But it may be insisted by the plaintiffs’ counsel,, as they have done heretofore, that the Act of 1819, ch. 50, Haywood. & Cobb, 78, passed by the Tennessee Legislature, confirmed these void entries and grants of Rorth Carolina for lands west of Brown’s line.. That Act cannot validate the void grant to Hacket and Donelson for various reasons. 1. Because it requires the grantees to show that they actually paid the entry money into the entry taker’s office,'which they have not done. The Act is only operative to make good the void grant upon proof that the grantees paid the entry money, and the burden of proof is upon them, or those claiming under them, under the void .grant. 2. Because long before the Act of 1819 said grant had been annulled and set aside by said treaties between the United States and the Cherokee Nation •of Indians before cited, while the legal title to the lands was in the United States. Said treaties, by the constitution, are the Supreme law of the land, and a State law repugnant or inconsistent with these treaties is unconstitutional and void by article 2 of the Constitution of the United States, and by the decision of the Supreme Court in the case of Worcester v. the State of Georgia, 6 Peters, 515. 3. Because the land was within the Indian boundary, and void by the laws of North Carolina as well as by the treaties between the United States and .the Cherokee Nation, and I deny that the State of Tennessee had the legal or constitutional power to convey the legal title to said lands to the grantees in said void grant, by a mere act of confirmation of a void grant without consideration. The Act is not a law of the land; it has never been held valid by any decision of this State •or the Supreme Court of the United States, that I have been able to find.
    Second. We admit that the Cherokee Nation ceded to the United States Jolly’s Island by the treaty of 1819, the only legal way that the United States could extinguish the Indian right to the land. The Act of 1819, ch. 59, Haywood & Cobb, 139, entitled “An Act to dispose of' the lands lying between the rivers Hiwassee and Tennessee, and north of ' Little Tennessee river,” sec. 1 provides that said tract of country be laid off into one surveyor’s district, and' shall be known by the name of the Hiwassee District, etc.; that a surveyor general shall be appointed, etc., who-shall run out and survey the lands lately acquired by the treaty from the Cherokee tribe of Indians, lying between the Hiwassee, Big Tennessee and Little Tennessee rivers, and north of the Little Tennessee, to which the Indian title has been extinguished, etc. See. ■ 2 provides that the lands shall be sold to the highest bidder, the sale to begin at Knoxville, Tenn., on the first Monday. of November, 1820.
    I understand that the surveyor general of the Hiwas-see district did not survey and put down upon his-map Jolly’s Island, nor was it offered for sale at the land sale of the Hiwassee district. And by said Act the surveyor general was not directed to survey Jolly’s Island; he was only directed to survey and map that part of the lands ceded, “lying between the Hiwassee,, Big Tennessee and Little Tennessee rivers, and north of the Little Tennessee, to which the Indian title has been extinguished.”
    Jolly’s Island does not lie between the Hiwassee, Big Tennessee and Little Tennessee rivers. The plaintiffs contend that Jolly’s Island is in the Tennessee river opposite the mouth of the Hiwassee. We contend, and we think the proof shows, that Jolly’s Island is in the mouth of the Hiwassee river and on the south side of the Tennessee.
    Jolly's Island remained vacant and unappropriated, and not disposed of under the Hiwassee district land laws. On the 23d of May, 1836, the treaty of 1835 and 1836 was approved and ratified between the Cherokee Nation and the United States, by which the former cede$ to the latter all that tract of country known as the Ocoee district. By virtue of the Act of October 18, 1836, the lands in the Ocoee district were surveyed, including Jolly's Island, and laid down upon the map of the Ocoee district. One copy of •said map was filed in the office of the Secretary of State at Nashville, and another reserved to be filed with the entry taker of the Ocoee district when appointed, and was filed with Hon. Luke Lea as entry taker at Cleveland, Tenn., after his appointment and qualification. Under the Act passed by the Legislature of Tennessee, on the 29th of November, 1837, ■disposing of the lands in the Ocoee district, Thomas Crutchfield entered the lands in Jolly’s Island at $7.50 per acre, and obtained a grant for the same. Hammock was living upon one of the quarter sections, or fractional quarter sections, of land in the island, claiming as an occupant, and refused to surrender the possession of the same to Crutchfield. Thereupon Crutch-field sued Hammock in ejectment to recover that part of the land held by him. Hammock and some of the heirs of Thomas Hopkins defended said action under said grant, No. 201, to Hacket and Donelson. The Supreme Court decided in that cause that Crutch-field’s entries and grant issued thereon were void because, by the treaty of 1819, the Island was ceded and formed a part of the Hiwassee district, and that the lands forming the Ocoee district were ceded to the United Slates by the treaty with the same nation in 1835, and that the surveyor of the Ocoee district had no right to survey lands outside of his district, and the entry taker of the Ocoee district had no right to receive entries for lands outside of his district, and therefore Crutchfield’s entries and grant were void, because the Governor of the State had no power to issue grants, except upon valid entries. Orutchjield v. Hcmmoolc, 4 Hum., 203. But the court nowhere intimated in said opinion that said grant to Hacket and Donelson was worth one cent. Nor is it intimated that the State of Tennessee was not the owner of the legal title to the lands. The gravamen of the decision is simply this: the entry taker of the Ocoee district could not receive entries for lands outside of his district, under the Act of November 29, 1837.
    The case of Grutchfield v. Hammock was decided at the July Term of the Supreme Court at Knoxville in 1843; and at the next session, to-wit., on the 15th of January, 1844, to do justice to those who had entered lands laid down upon .the map of the Ocoee district in the entry taker’s office of said district, and the title had been determined invalid because the entry taker had no power to-receive the entries; and to enable the State of Tennessee to legally sell and dispose of such lands, the Legislature passed an Act entitled “An Act to correct mistakes in entering lands in the Ocoee District, and for other purposes.” Sec. 2, page 108, enacts that in all cases where a quarter or fractional quarter section of land has been designated by the surveyor general of the Ocoee district as belonging to said district, and so laid down on the maps, which quarter section or fractional quarter section of land has been entered in the office of the entry taker of the Ocoee district, the title to which has been controverted, and the question judicially determined that the entry of the land in the Ocoee district and grant thereon are void, the money paid into the entry taker’s office shall be refunded.
    The proviso to the 4th section then enacts that the same lands shall be subject to be re-entered in the entry taker’s office of the Ocoee district, as the lands in that district were entered, with the same graduation of prices. This Act covers Jolly’s Island, and all others laid down on the map of the Ocoee district, and entered in the entry taker’s office of that district, and the entries and grants had been declared void by the courts. The Legislature intended that the same lands should be re-entered in the entry taker’s office of the Ocoee district. The State holding the legal title, the Legislature had the power to direct the entry in the office of the entry taker of the Ocoee district. The Legislature could have provided for the entry to be made at Nashville or Knoxville.
    If the Act of November 29, 1837, disposing of the lands in the Ocoee district, had also provided for the entering of the lands in Jolly’s Island in the entry taker’s office of Ocoee district, there is no question but Crutchfield’s entries and grant would have-been held good. It was a mere • oversight of the Legislature of 1837, and . officers and agents of the State, in failing to observe that Jolly’s Island was ceded by .the treaty of 1819, and therefore could not pass to the government by force of the treaty of 1835,, and therefore was not in ‘fact within the boundaries, of the Ocoee district, and hence not specially provided for by said Act, disposing of the land in the Ocoee district.
    By virtue of said Act of- January, 1844, sec. 2 and 4, Thomas H. Calloway entered the lands in Jolly’s Island April 20, 1847, and obtained a grant for the same, dated January 20, 1850. As a precautionary measure, he also entered the same lands in the entry taker’s office of the Hiwassee district on the 26th of March, 1850, and obtained a grant thereon from the State dated March 29, 1850. While said suit of Crutchfield v. Hammock was progressing, and after it was discovered that Jolly’s Island was ceded to the United States by said treaty of 1819, Thomas H. Calloway entered Jolly’s Island in the entry taker’s office in Rhea county, Tennessee, on the 12th of January, 1841, under the provisions of the Act of 1829, ch. 47, sec. 1. Haywood and Cobb, 123. Upon this last entry he obtained a grant, dated April 9, 1850. But we mainly rely upon said entries in the entry taker’s office of the Ocoee district of April, 1847, under said Act of January, 1844, and the grant from the State issued upon said entries. I think there can be no question as to the legality of said entries and grant.
    Third. We suppose the plaintiffs, by their counsel, will insist, as they did in the Chancery Court, that although said grant to Hacket and Donelson may be void, still the plaintiffs have a right to recover, because a presumption of a grant arose in their favor, from the facts in the cause, before Thomas H. Callo-way took possession of Jolly’s Island in February or March, 1850, under his several entries and grant from ■the State of Tennessee. It must be borne in mind that by the 7th article of the treaty of 1819, the In-frian possession of Jolly’s Island did not cease until on or after the first day of January, 1820. And to raise a presumption of a grant in favor of the plaintiffs, they must prove that they and those under whom they claim title held the actual, continuous, and unbroken possession of Jolly’s Island for twenty consecutive years, without any hiatus or break in such possession. The presumption of a grant will not arise ■upon a claim of possession, which possession was not actual, continuous, and unbroken for the whole term of twenty years together. Brook v. Burohett, 2 Swan, 27, 31, 32; Gilehrist v. McGhee, 9 Yer., 457; Scales v. Coohrill, 3 Head, 432; Gannon v. Phillips, 2 Sneed, 214; Ohilton et al. v. Wilson’s heirs, 9 Hum., 399, 405.
    If the possession was broken at any time within the twenty years, if a hiatus intervened, the presumption of a grant cannot arise. And whatever fact rebuts an actual adverse possession under the Statute of Limitations, will repel the presumption of a grant. 
      Brook v. Burchett, 2 • Swan, 31; Bchauber v. Jackson, 2 Wendell, 37; Daniel v. North, 11 East, 372; 1 Cowper, 110.
    If the grant to Hacket and Donelson is void, as we think we have shown by the uniform decisions cited, then the legal title to Jolly’s Island remained in the State of Tennessee until entered by Calloway .and granted to him by the State, as before shown, and the presumption of a grant cannot arise against the State or its grantee, Calloway, until twenty years after Calloway’s entries and grant. Martin et al. v the State, 10 Hum., 162.
    The lands in dispute were not authorized to be surveyed and sold under the Act of 1819, disposing of the lands in the Hiwassee district, and in fact were not disposed of under the Hiwassee land laws. In fact, it is not pretended by the plaintiffs that any grant ever issued by Worth Carolina, except the one to Hacket and Donelson, which being void, stands as though it had never issued. -, Then it is clear that the title to the lands in dispute remained in the State of Tennessee until entered by Calloway on the 20th of April, 1847, and granted on the 20th of January. 1850. Judge Green, in 10 Hum., 162, says, “such a presumption would be absurd. We should, therefore, only presume a grant to declare it void.”
    The statute of limitations does not run till there is a grant of land from the State, for till then the title is in the State, and the statute does not run against the State. Singleton v. Ake, 3 Hum,, 626, It is a universal rule of law that no time runs against the State. If a void grant issues it is not the State’s grant, and stands as if the grant had never issued. The Act of January 15, 1844, is the first Act ever passed to authorize the entry and grant of Jolly’s Island, and the presumption of a grant in favor of the plaintiffs cannot arise in this cause. And that question being out of the way, the plaintiffs stand in. this court without any title to the lands sued for, and their action must fail upon the well-settled principles of law heretofore referred to.
    But another well settled principle of law excludes the plaintiffs from setting up any claim of right to the lands sued for by reason of any possession of Jolly’s Island by their tenants and the tenants of those under whom they claim prior to the passage of the law in January, 1844, authorizing the lands in dispute to be entered. If the title to Jolly’s Island was in the State, with the right to dispose of it as the Legislature might provide, from and after the first of January, 1820, by virtue of the treaty of 1819, then the lands were the public lands of the State until legally disposed of. And all the contracts that Thomas Hopkins, and his heirs, after his death, may have made with tenants were absolutely void. They were all trespassers upon the public lands, and no rights could be acquired by virtue of such contracts. Kennedy v. Wiggins, 5 Hum., 125; Edwards v. Batts, 5 Yer., 441; Gillespie v. Wood, 4 Hum., 437; Barnhart v. Neisler, 6 Hum., 493.
    The rule is. that the landlord and tenant are both trespassers upon the public lands, and the contract of tenancy is illegal and void. But the State, in passing laws to dispose of her public lands, has generally given the actual resident upon the land the preference -of entry, though he may have been a mere tenant put there by another, as was Pike the mere tenant •of Wiggins in the case in 5 Hum., 125. The law disposing of the lands in the Ocoee district gave the -occupant right to Pike, and the court held that the ■law could not recognize the contract of tenancy between Wiggins and Pike because both were mere trespassers upon the land until the law passed, and then it gave the occupant right to Pike, who, by the Act of the Legislature, was vested with the occupant right by the bounty of the State, and he could legally sell and transfer to Kennedy. See also Dearing v. Gate, 8 ■ Hum., 29; Kenner v. Moimtcastle, 5 Hum., 128.
    Fourth. If we are forced to admit that the presumption of a grant could begin to run against the State after the 20th day of January, 1820, the time limited for the Indian occupancy by the treaty of 1819, which we do not believe possible for the reasons stated and authorities cited, the plaintiffs must show by proof that they and those under whom they claim title to Jolly’s Island have held the actual, adverse, continuous and unbroken possession of the island for twenty whole years together — say from first of January, 1820, to first of January, 1840. Any time short of the twenty years will not do. If at any time they were not in possession, if at any time a hiatus intervened, they cannot couple the time before and after the hiatus to make the twenty years to raise the presumption of a grant in their favor: 2 Swan,, 31; 2 Wendell, 37; -11 East, 372; 1 Cowper, 110. And we deny that the proof in this cause shows that either Thomas Hopkins or those claiming under him by themselves or tenants, were ever in the actual, continuous and unbroken possession of Jolly's Island for twenty consecutive whole years together. The-plaintiff's own witnesses do not prove such , a state of iaets.
    JNO. Baxter, for defendant in error.
   McFarlAND, J.,

delivered the opinion of the court.

This action of ejectment was brought by the heirs of Thos. Hopkins to recover of Thos. Calloway a valuable island, known as “Jolly Island,” situated at the junction of the Tennessee and Hiwassee rivers, now in Meigs county. They recovered an undivided interest in the land sued for, and a new trial having been refused, Calloway's heirs, against whom the action was revived, have appealed in error.

The plaintiff’s title, under the charge of the Circuit Judge, was made out in the following manner: The island was granted by the State of North Carolina to John Hacket and Stokely Donelson, by grant dated the 17th July, 1794. Intermediate conveyances between one of the grantees — Stokely Donelson — and Thos. Hopkins, the ancestor of the plaintiffs, were read, but it is not necessary to set them forth particularly, — it is sufficient to say that they do not form a perfect chain of title from grantees to Hopkins; but the plaintiffs read a deed from F. A. Ross to Thos. Hopkins, dated the 12th of October, 1822, purporting to convey the entire fee simple title to the island, and it is claimed that Thos. Hopkins held uninterrupted adverse possession of the ■ island for more-than seven years thereafter, claiming under said deed, and it .being granted land, his title became perfect, by virtue of the first section of the Act of 1819.

In answer to this, it is said for the defendants-that the grant to Hacket and Donelson was void, for reasons to be hereafter explained, and that no other-valid grants ever issued for the land until the issuance of the grants in 1850, under which the defendant claims.

For the plaintiffs it is not seriously denied that the the grant before referred to was originally void, and so the Circuit Judge held; but he also held that it was' cured and made valid by an act of the Legislature of Tennessee of 1819, ch. 50, and that from and after that date the island was granted land, and that seven years’ adverse possession by Hopkins after that date, claiming under' a color of title, would perfect his title to the island. The effect, therefore, of said Act of 1819 upon the grant in question, becomes-for the present a material question. Was the charge of the Circuit Judge upon this question correct?

In order to determine this question, it becomes important to ascertain the grounds upon which the grant was originally void. It was argued that it was void upon two grounds: 1. By the act of the Legislature of North Carolina, commonly called the Cession Act, of 1789, the- territory embracing the land in question was ceded to the United States, and the cession accepted by an act approved the 2d of April, 1790; so that, at the date of the grant — 17th July, 1794 — the State of North Carolina had no title to the land in question, and could grant none. This was rmquestionably so, unless this grant comes within the savings of said act, which in substance is, so far as need be noticed, that in all cases where entries had been previously made agreeably to existing laws, the State of North Carolina reserved the right to perfect such title by the issuance of a grant; so that a grant from the State of North Carolina for lands lying within the territory ceded, dated ■ after the Cession Act had been accepted, but founded upon a valid entry made previously thereto, would be valid, but unless founded upon such previous entry, would be void, because the State making the grant had no title.

Two copies of the grant in question were read in evidence by the plaintiffs, showing some discrepancies, but in neither copy does it purport to be founded upon any previous entry, nor was any entry or other incipient right produced. It may, for the argument, be conceded that this would not be essential to the validity of a grant issued prior to Cession Act. After that act, however, the State of North Carolina had no power to issue the grant, unless it appear to 'be done in perfecting an incipient right under a previous entry or otherwise. But, as we have said, it does not appear in this case that the grant in question was founded upon any previous entry or other incipient title. It does not upon its face purport to be, nor is any such previous entry or incipient right produced in evidence. ¥e are, therefore, of opinion that the grant was void for want of title in the State of North Carolina at its date. This was substantially held in Polk’s lessee v. Wendle, 5 Wheaton, 292; also Polk’s lessee v. Wendle, 9 Cranch, 87. This was the ground upon which the Circuit Judge held the grant to be void, until cured by the Act of 1819.

But, in the second place, it is argued that the grant was void because the Indian title to the land had not been acquired by treaty or otherwise. When the county of Washington was established in 1777, embracing the entire territory of Tennessee, an ■entry taker was appointed, and numerous entries were made, but previous thereto a treaty had been made, with the Cherokee Indians, by which their title was acquired to all the lands of said county lying east of a line running across upper East Tennessee by Chimney Top Mountain, passing the Holston at the mouth of Cloud’s Creek, afterward known as Brown’s line. The title of the Indians to the land west of this line still remained with them. Many of the entries that had been made lay west of the line. Thereupon, in April, 1778, the Legislature of North Carolina passed an act declaring void all entries made in Washington county of lands lying west of Brown’s line, and the entry takers were directed to refund all moneys paid for such lands. In April, 1783, an act was passed by the Legislature of North Carolina opening a land-office at Hillsborough, called John Armstrong’s office, and under this act Brown’s line was abandoned, or, in other words, the entire State thrown open to entry, except certain reservations, among which was a reservation for the Indians. Without tracing the lines of this reservation, it is sufficient to say that the land in question is west of Brown’s line, and was still within the Indian reservation as established by the Act of 1783, although, as we have seen, a much larger scope of country was thrown open to entry by this latter act. John Armstrong’s office, however, was closed after the 25th of May, 1784, remaining open but a few months. The Indian title to the island was extinguished by the treaty of the 19th of March, 1819, in which the island is expressly named. It has been settled that Grants from North Carolina of lands reserved to the Cherokee Indians under their treaties, were void under the laws of that State; though, in the absence of laws expressly declaring such entries and* grants void, it might be a question whether a State could not have granted the fee subject to the right of the Indians. If the land in question was entered prior to the Act of April, 1783, then, as it lay west of Brown’s line, the entry was void, by the express terms of the Act of 1778 before referred to. If made in Armstrong’s office during the time it was open from April, 1783, to May, 1784, the entry was still in violation of the treaties and acts by which this land was still included within the Indian territory. If the Grant in question was one issued by the State of North Carolina after the Cession Act, but founded upon an' entry made previous to the Act of 1783, then the only objection to the validity of the grant would be, that it was declared .void by the Act of 1778 because the land was west of Brown’s line. If made after the Act of 1783, in Armstrong’s office, it was not necessarily void 'because the land was west of Brown’s line, for entries might have been lawfully made west of Brown’s line; but it would still be subject to the objection that the land was within the Indian reservation. We are of opinion that the grant in this case, so far as now appears, was not one of the grants embraced by the Act of 1778.

We come now to consider the effect of the Act of 1819, which, it is argued, makes the grant valid. It is entitled “An Act to confirm and make good all grants issued by the State of North Carolina on entries and warrants made west of Brown’s line.” The preamble is as follows: “Whereas, in the year 1779-(this is probably a mistake in the date — it was in the year 1778) the State of North Carolina passed a law forbidding the entering of land west of a line called Brown’s line, which act declares all entries heretofore made and grants heretofore issued, and all entries hereafter made and grants hereafter issued, for any land west of the before described line, null and void,, and required the enterers to call on the entry taker and receive their money for said entry, yet said entry taker .never did refund said money, and said entries and warrants were perfected into grants; therefore,. Be it enacted by the General Assembly of the State of Tennessee, that all grants hereafter issued, and said •entries and warrants, when the money was actually-paid, .shall be good and valid to all intents and purposes, both in law and equity.” Does this act make valid the grant in question ? To what class of grants .and entries does it apply ? It seems clear that it was intended to make valid that class of grants which by the Act of 1778 (or 1779, as it is called) were declared void, — that is, entries and grants founded thereon for lands lying west of Brown’s line, made at a time such entries and grants were forbidden. But it must certainly be understood that this act was only intended to remove that particular objection, that is, the objection that the entries and grants were void for the reason that the land was west of Brown’s ■line. In other words, if the grant be in other .respects valid, and void only for this particular reason, then the act in question was intended to remove the particular objection, and make the grant valid, upon the condition mentioned; so that, if this grant was one of the grants declared void by the Act of 1778, and was void for no other reason, then the Act of 1819 would apply, upon the conditions specified. But if this grant was void for the reason first stated, that is, because it was made after the State of North Carolina had parted with her title under the Cession Act, and not founded upon an entry made previous thereto, then this act was not intended to cure this defect or •make valid a grant of this character; in other words, in cases where grants were made by the @tate of North Carolina before the Cession Act, or where entries were made prior to said act, and grants issued thereon afterwards, for land lying west of Brown's line, such entries and grants having for that reason been declared void by the Act of 1778, are by this act declared valid, upon the condition stated. But this act was never intended to make valid all grants issued by the State of North Carolina for lands lying within the territory of Tennessee, and made after the-former State had parted with all title and right to grant the same, under the Cession Act, and not founded upon entries made previous' to said act.

And this we understand to be the character of the present grant. It was made in 1794, after the State had parted with its title to the land. It does not appear to be founded upon any entry made previous to the Cession Act. It must, therefore, be regarded simply as a grant issued by the State of North Carolina, without any title or authority for doing so, and for this reason void; and we are of opinion that the Act of 1819 was not intended to have any application to a grant like this. A contrary construction would make all grants issued by said State, after the Cession Act, for lands in Tennessee, valid, without regard- to any previous entry. That act was' intended to make valid those grants issued by the State of North Carolina when said State might have rightfully granted the land, but for the prohibition in the Act of 1778. This grant, so far as now appears, was issued by the State of North Carolina without any color of title or authority whatever. The Act of 1819 removes the objection to the grant made by the Act of 1778, and leaves it as if that act had not been passed. But with that act out of the way, this grant is still void for the reason already stated, and for a reason, not removed by the Act of 1819; this was certainly never intended. This makes it unnecessary to discuss the question, whether, in order to bring a grant within the provisions of the Act of 1819,' it must affirmatively appear that the money was actually paid, or whether the recital in the grant of the payment of the money is to be taken as prima facie true, and thus throw the burthen of proof upon the opposing party to show that the money was not paid. Not regarding the statute as applicable to this case, we do not deem it proper to determine the construction of it in cases where it is applicable. We therefore hold, that the Circuit Judge erred in charging the jury that the grant in question was made valid by the Act of 1819. So far as appears to us hi this record, said grant was void and remained so.

This leaves the title of the plaintiffs to defend upon other and different grounds, upon which, however, the case was not presented to the jury in the charge, and the questions in regard thereto are not now before us. The error indicated changes the entire aspect of the case. We do not regard it proper to notice other questions argued, as it is not necessary that they should be settled.

For the error indicated, the judgment is reversed and a new trial awarded.  