
    M’Connell and Miller’s lessee vs. M’Gee.
    Where the voservee, at the date of the treaty of 1817 resided and 'cultivated land at A, from which he subsequently- removed to B, after which removal he registered his name for a reservation at B, at which latter place he died before the treaty of 1819; Held, that his heirs could • only claim their reservatipn at the latter place.
    This was an action of ejectment. The defendants below, M’Connell and Miller, claimed the land in dispute as a reservation to Andrew Miller. The facts were, that Andrew Miller, for about twelve years previous to the year 1518, had resided ata place called Pumpkin town, where he had cleared about seventy-five acres. In the spring of 1818 he removed his family to a place called Toqua, about twenty-five miles from Pumpkin town, where he, built a cabin and some stables. He had also a small field in which a crop of corn was growing. He died early in the cropping season of 1818. On the 24th May, 1818, he registered his name for a reservation. He said he went to Toqua and improved there in order to take his reserve at that place. The lessor of the plaintiff deduced his title from the State.
    The court charged the jury “that Andrew Miller had two improvements, and he mijght elect at which to take his reserve; that he might have taken it at Pumpkin town or Toqua; that the specification of the place where Miller registered his name, together with other acts of his, might be taken as evidence of his intention as to the locality of his reservation, and that the election when'once made would be conclusive upon him and his heirs.”
    The jury returned a verdict for M’Gee, upon which judgment was rendered; from this judgment an appeal in the nature of a writ of error was prosecuted to this court.
    For the plaintiff in error it was contended, that Andrew Miller’s heirs had the right to the land in dispute, because he lived upon this tract at the date of the treaty of 1817; that when his reservation was taken in May, 1818, it could only apply to such land as he was in possession of at the time the treaty was made. The right conferred by that treaty, to register the name for a reservation, it was insisted, operated instantly upon such registration to vest the party with the title to- such land as he then had in cultivation, or was in the actual cultivation of, at its date.
    
      Jarnagin for defendant in error.
    In this cause there is but little dispute about the fads. For defendant in error it is insisted that Miller’s heirs could not claim a reservation any where by the registry of their father on the 24th of May, 1818, for land in the territory not surrendered to the United States until the treaty of 1S19. At that time, Mrs. Miller was the head of an Indian family, and had a right to take a reservation in her own name, if she had been residing on the ceded territory.
    Suppose it bad been thirty years after the death of Miller before a treaty of cession had been made, and his children had become themselves the heads of Indian' families, could they each take a life estate reservation in their own names, and yet hold one in fee by the registra-* tion of their father?
    Suppose Mrs. Miller at the date of the treaty of 1819 had been living with her family at any other place in the ceded territory, could she not have taken a reservation in her own name? Surely she could. Could she then hold that, and at the same time have dower where her husband lived before the treaty?
    It is a mistake to suppose that Miller had any interest as a reservee by his registry in 1818, for the land was then the common property of the nation, and remained so till February, 1819, and if he voluntarily removed there was no reversion to the United States.
    Reservations in this section of country have their ef-feet from the treaty of 1819. But suppose Miller had an interest, yet bis removal to Toqua was an abandonment of the place sued for, and therefore all claim was forfeited.
    This court has already decided that when an Indian had several improvements at the date of the treaty of 1819, he had until the 1st of January, 1820, to select which he would take as his reservation. Pathkiller’s case. If he had made no improvement he might make-one, Morgan’s case and Grubbs’ case, 2 Yerger’s Reports, 432 and 450.
    But again, neither at the date of‘the treaty of 1819, nor on the first of January, 1820, was Miller’s wife or children on any portion of the ceded territory, but were residents in the Cherokee nation, where they have ever since remained.
    Again, if Miller’s children had a fee in the land on the death of their father, it was because the land had been surrendered to the United States, and their father had became a citizen thereof, and remained on the land till his death.
    Now all this never happened. But the language of the 8th article of the treaty of 1817 was only a promise to those upon the ceded territory, that, in future treaties, reservations should be allowed. 2 Scott’s Rev. 834.
    Now suppose in the treaty of 1819 no reservations had been allowed, will any one contend that Miller’s children could claim or hold any?
    The State was not concluded from selling, by the act of the surveyor. See acts of 1819, ch. 59, sec. 1, and ch. 60, to show that the surveyor should have laid down the reservation at Toqua, if he laid it down at all.
    The judgment of the circuit court should be affirmed.
   Catron, Ch, J.

delivered the opinion of the court.

The circuit «ourt charged the jury, “that Andrew Miller bad two improvements, and he might elect at which he would take his reserve of a mile square; that be might have taken it at Pumpkin town or Toqua; that the specification of the place where Miller registered his name, together with other acts of his, might be taken as evidence of his intention as to the locality of his reservation. That the election, when made, would be conclusive on himself and his heirs.”

Miller had for twelve years resided at Purppkin town, and had a farm of seventy-five acres of cleared land. In the spring of 1818 he took his wife and part of his family to Toqua, twenty-five miles from Pumpkin town, built a cabin, two stables, made a small field and had corn growing, when he died early in the cropping season of 1818. On the 24th of May, 1818, he registered his nanie with the agent for a reserve at Toqua. He said he went there and, improved to take his reserve at that place, and that he did elect to take there is free from doubt. The charge of the court was therefore conclusive of the cause, and no charge was given on any other ground assumed by the plaintiff. ' The important ground involving a principle is, whether Andrew Miller’s heirs are entitled to any land, their father having died before the treaty of 1819 was made, until which time, it is insisted for the plaintiff, no title vested by virtue of the treaties. On this point the court has formed no opinion, and leaves it open. But had the treaty of 1817 conferred title on Miller by virtue of the registry of his name, yet we think the charge and finding of the jury in favor of Toqua, was clearly proper, and that the judgment must therefore be affirmed.

Judgment affirmed-  