1829 PATTERSON V. JENKS ET AL. the line between the settlements of the whites and the hunting-grounds of the Indians. This line also commences on the Savannah River, and runs as described in the treaty to the top of the Currohee Mountain. It proceeds "thence to the head or source of the most southern branch of the Oconee River, including all the waters of the same, thence down the said river to the old line." A subsequent treaty was held with the Creeks on the 12th of November, 1785, at Galphinton. The 4th article of this treaty declares, that "the present temporary line reserved to the Indians for their hunting-ground, shall be .agreeable to the treaty held at Augusta in the year 1783. On the 28th of November, 1785, the commissioners of the United States held a treaty with the Cherokees at Hopewell, in which it was agreed that the boundary line should run from the top of the Currohee Mountain "to the head of the south fork of Oconee River." The treaty at Shoulder-bone, concluded in 229*] the year 1786, *confirmed the line as established in the treaties of Augusta and of Galphinton. All the treaties between Georgia and the Indians, stipulate that the lines shall be marked as soon as possible; but it does not appear that they were ever marked. A treaty was afterwards entered into at New York, between the United States and Creek Indians, on the 7th day of August, in the year 1790, which fixes the boundary line from the top of the Currohee Mountain, "to the head or source of the main south branch of the Oconee River, called the Appalachie, thence down the middle of the said south branch to its confluence with the Oakmulgee." In pursuance of this treaty, the line from the Currohee Mountain to the head or source of the main south branch of the river Oconee was run by Benjamin Hawkins. obvious that no line from the top of the Curro- To obviate this difficulty, the defendants in- This line would include all the waters of the south fork, but is attended with other difficulties of no inconsiderable magnitude. The words of the treaty seem to require that the line should stop at the source of the main stream, not at the source of an inconsiderable rivulet. From this source the line is to proceed down the river. It is reasonable to suppose that it proceeds down the river from the source of the river, not from the source of a small branch. It is to include all the waters, that is, all the tributary streams of that at whose source it stops. But this construction requires it to stop at the source of a stream, which is itself tributary to the very river which is spoken of as one of its waters. If this construction be admitted, and the source of the lowest stream on the south side be substituted for the source of the main stream, still the line must run down that lowest water course to the south fork, and down the south fork to the old line. The case does not inform us that even this line would include the whole tract granted to Bazil Jones. That tract is stated to lie on the waters of the south So much of it as fork, but not on the Georgia side of the most extreme of those waters. may be situated on the Indian side of that water course, would be within the Indian hunting-grounds. The treaty made with the Cherokees at Augusta on the 1st day of June, 1783, is apparently intended to establish the same line The only variance in the which was afterwards adopted in the treaty with the Creeks. case. Some ambiguity undoubtedly exists in the treaty made with the Creeks at Augusta, which, in a contest between Georgia and the Creeks, might claim a construction favorable to the pretension of the less powerful and less intelli-language is, that in the treaty with the Cherogent or skillful party to the compact. But in kees the line from the source of the southern a controversy in which both parties claim branch of the Oconee River is to run "down the middle of the said branch;" in the treaty title under the State of Georgia, it would seem reasonable to give the article that construction with the Creeks, it is to run "down the river." which Georgia herself has put upon it, provided It is not probable that different lines could it be reconcilable to the words. The line is to have been intended. run "to the source of the most southern branch of the Oconee River, including all the waters of the same.' The source of the most southern branch is the source of the main stream of that branch. It is a point to which the line is to be run from the top of the Currohee Mountain. This line, if the treaty gave no directions respecting its course, would be a straight line. But the treaty directs it to be so run as "to include all the waters of the same;" that is, "all the waters" of the most The line must, therefore, southern branch. be drawn from the one given point to the other, in such direction as to include all the waters of the most southern branch of the Oconee. It must, therefore, instead of being straight, pass round the sources of all those streams which empty into the south fork on ots northern side, and are between the points of comBut it is mencement and of termination. If the State of Georgia has construed this treaty by any *subsequent acts mani- [*231 festing her understanding of it, we should not But the bill of exceptions contains no hesitate to adopt that construction in this fact showing that Georgia has adopted a construction of her treaties with the Indians which would establish the boundary claimed by the plaintiff. On the contrary, in February, 1787, an Act was passed "for the appointment of commissioners to run the line designating the Indian hunting-grounds." This Act directs the commissioners to proceed in conjunction with those to be appointed by the Creek nation, to trace and mark "the temporary boundary line, as heretofore established; that is to say, from the Currohee Mountain, in the direction of till the same shall strike the head or source of the present temporary line from Zugalo River, the main direct stream of the south branch of 407 Oconee River, called also Appalachie, by which is to be understood the main fork of Oconee | River, next above Little River." This Act seems to reject all claim, on the part of Georgia, to lands lying south of the main stream of the south branch of Oconee, and to adopt the construction of the treaties at Augusta, which appears to have been adopted by the commissioners of the United States, at the treaty at Hopewell, in 1785. The prayer we are considering, also requested the court to instruct the jury that the tract of land granted to Bazil Jones was within the limits of Franklin county as by law defined. In February, 1784, the Legislature passed an Act for laying off two more counties to the westward. One of these was the county of Franklin. The first section declares, "that the present temporary line, circumscribing the Indian hunting-ground, shall be marked by a line drawn from that part of the north branch of Savannah River, known by the name of Owee, which shall be intersected by a line northeast from the Oconee mountains; thence in the same direction to Zugalo River; from thence in a direct line to the top of Currohee Mountain; thence to the head or source of the most southern stream of the Oconee River, including all 232*] the waters of the same; thence down the said river to the old line, thence along the old line." The only difference between this legislative description of the line circumscribing the Indian hunting-ground, and that in the treaty, is in the substitution of the word "stream" for the word "branch." In the treaty, "the branch," and in the law, "the stream," appear to be considered as "the river." The line is to run from its source "down the said river." This language would seem to indicate that a considerable, or main branch, or stream, one which had acquired the name of river, not a small rivulet, was in the mind of the Legislature. The line which runs to it from the top of the Currohee Mountain is subject to all the uncertainty which attends the same line, as described in the treaty of Augusta. The 2d section of the Act proceeds to define the exterior lines of the county of Franklin. They run from the Savannah River to the south branch of the Oconee River; thence up the said river to the head or source of the most southern stream thereof; thence along the temporary line separating the Indian hunting-ground, to the northern branch of the Savannah, etc. be imagined that Georgia has not settled prac tically the limits of Franklin county; and any such settlement ought to have been conclusive with the Circuit Court. But no such settlement is stated in the record, and the court is required to say in what manner its [*233 boundary lines are to be drawn, in pursuance of the Act of Assembly by which it was constituted. The court is relieved from the difficulty by the same circumstance which made it unnecessary to determine the line which circumscribed the Indian hunting-grounds. The statement of fact on which the opinion of the court is asked, does not affirm that the land lies on the northern, or Georgia side of the most southern stream, but that it lies on the waters of the south branch of the Oconee River. For this reason this instruction ought not to have been given as asked. The third exception states that the said counsel for the plaintiff also moved the court to instruct the jury that the said grant to Bazil Jones, under which plaintiff derived title, was a legal and valid grant for all the lands exhibited on the plat as lying north and east of the south fork of the Oconee River, now called Appalachie, including all the waters of the same; which instruction the court, being divided in opinion, refused to give. The court understands the words, "including all the waters of the same," to mean waters north and east of the south fork of the Oconee River. This application, like the second, is supposed to be made on the assumption that the facts stated in the first are true. If they are, then all the land contained in the patent, lying north and east of the south branch of Oconee, is on the Georgia side of the line circumscribing the Indian hunting-ground, and within the county of Franklin, as described by law. The application supposed to be made to the court, is to instruct the jury that the grant is good for so much land as lies within the county of Franklin, although part of the tract may be without that county and within the Indian boundary. The counsel for the defendants insist that, under the laws of Georgia, the whole patent is void if any part of the land it purports to grant be within the Indian boundary. The counsel for the plaintiff contends that the laws, so far as they have declared patents to be void, are entirely retrospective; and that prospectively they only inflict penalties on persons who shall make surveys in contravention of the statute. *In January, 1780, an Act was passed [*234 "for the more speedy and effectual settling of The southern boundary of Franklin county, this State." The 19th section enacts "that no from the place where the line from the Savan-warrant, survey or plat, made or laid out in nah strikes the most southern branch of the Oconee River, is up that river to the head or source of the most southern stream thereof. You find the head or source of this most southern stream, by proceeding up the river. It may well be doubted whether this description will admit of leaving the river for any of its small rivulets. The words, the most southern stream of the south branch of the Oconee, whose source is to be found by proceeding up the river, may be satisfied, either by pursuing the most southern stream which has acquired the name of river, or the most southern stream which empties into the river. It can scarcely the lands yet within the lines of the Indians, shall be held valid, and the same is hereby declared null and void to all intents and purposes whatever; nor shall any grant which may hereafter be surreptitiously obtained, be deemed legal or of any effect." We do not think the language of this section entirely retrospective. The words "made or laid out" may apply to the future as well as the past, and comprehend warrants and surveys which shall be, as well as those which have been made or laid out in the lands yet within the lines of the Indians. In February, 1783, Georgia passed an Act for opening her land office. The 11th section | only which were made entirely within the Inof this act is retrospective so far as it annuls dian boundary, as to that part of a survey surveys and grants. Its prospective provi- which lies on the Georgia side of that bounda sions only inflict penalties on the persons who ry. Neither construction would probably purshall make surveys or attempt to obtain a sue the real intent of the Legislature. Georgia grant. But the 13th section, after describing was willing to grant all the lands as *far [*236 the limits of the State, provides "that nothing as the Indian boundary, but unwilling to pass hereinbefore contained shall extend, or be con- that line. The sole object of the enactment strued to extend, to authorize or empower any was to restrain her citizens from passing it, by surveyor, or other person or persons whatso- making void all surveys or grants of lands ever, to survey, run or make lines upon the beyond it. It is therefore a reasonable conlands before described as being allowed to the struction of the Act to consider it as applying Indians for hunting-ground, or any part or par- to surveys and grants so far only as they were cel thereof, before or until permission for that contrary to law. There is a plain difference purpose shall be granted by the Legislature between a grant comprehending lands which and made known by proclamation." may, with lands which may not be granted, and one made on a fraudulent misrepresentation or illegal consideration which extends to, and vitiates the whole instrument. Understanding this prayer as involving the validity of the grant, so far only as respects its extending in part into the Indian country, we think it ought to have been granted. In consequence of this proviso, the land-office could not be considered as opened for lands within the Indian boundary. The 5th section of the Act of 1785, which has been relied on, is retrospective. The Act of February, 1787, for the appointment of commissioners to run the line designating the Indian hunting-ground, inflicts additional penalties on those who shall thereafter survey or cause to be surveyed, or obtain grants for any lands beyond the temporary line designating the Indian hunting-ground. The 3d section is in these words, "whereas, notwithstanding the most positive laws to the 235*] *contrary, many persons, from design or accident, have run large quantities of land and obtained grants for the same, southward of the present temporary line between the good citizens of this State and the Indians, and expect to hold the same when a cession of said land can be obtained. Be it therefore enacted, that the surveys or grants for such land be considered, and they are hereby declared to be null and void, and of no effect whatever." This enactment is undoubtedly retrospective. It manifests, however, unequivocally the opinion of the Legislature, that all the surveys and grants which are declared void, had been made and issued contrary to the most positive laws. However these laws may be construed, it is, we think, obvious that the office was not opened for land situated within the Indian hunting-grounds, and that grants for them were not authorized. But is the whole grant a nullity because it contains some land not grantable? In the nature of the thing, we perceive no reason why the grant should not be good for land which it might lawfully pass, and void as to that part of the tract for the granting of which the office had not been opened. It is every day's practice to make grants for lands, which have in fact been granted to others. It has never been suggested that the whole grant is void because a part of the land was not grantable. The Act of February, 1807, after stating "that many persons had run large quantities of land, and obtained grants for the same southward of the present temporary line between the good citizens of this State and the Indians," enacts "that the surveys or grants for such lands shall be considered null and void;" and the survey in this case was made in September, 1786. This enactment might with as much propriety be construed to apply to those surveys | The 4th prayer, if not a repetition of the 3d, varies from it only by omitting the words "including all the waters of the same;" consequently, the opinion which has been expressed on the third, is applicable to this. The principle that a patent conveying lands lying partly within and partly without the territory retained by the Indians, was void as to so much as lay within it, and valid for the residue, was settled by this court in the case of Danforth v. Wear, 9 Wheaton, 673. That decision was made on a patent depending on the statutes of North Carolina, which contain prohibitions at least as strong as those of Georgia. The 5th prayer states, that the plaintiff moreover gave evidence conducing to identify and prove certain corner trees, station trees, and lines, of the said tract of land, granted to Bazil Jones aforesaid, before described, and including all the lands on the north and east side of the south fork of the Oconee River, in the possession of the defendants. And thereupon, the counsel for the said plaintiff moved the court to instruct the jury, that neither the want of the line and station trees required by any law, nor the omission of the surveyor to note on his plat the beginning corner, nor any mistake in platting the water-courses, nor any fraud, irregularity, negligence, or ignorance of the officers of government, prior to the issuing of the grant to Bazil Jones, under which the *plaintiff derives title, did, or could, [*237 legally affect the right of the plaintiff to recover; that the existence of the grant is, in itself, a sufficient ground to infer that every prerequisite has been performed; and that as to all irregularities, omissions, acts of fraud, negligence, or ignorance of the officers of government, prior to the emanation of the grant, the government of Georgia, and not the plaintiff claiming under her grant, must bear the consequences resulting from them; which instruction the court, being divided in opinion, refused to give. This prayer is in some of its parts, unexceptionable. In others, it is expressed in such vague and general terms as to make it unsafe for any court to grant it. In the case of Polk's Lessee v. Wendell, 9 Cranch, 87, 5 Wheaton, ERROR to the District Court of the United 293, this court decided that a grant raises a presumption that every prerequisite has beer States for the District of Kentucky. performed; consequently, that no negligence or The only question submitted to the court was, omission of the officers of government anterior whether the assignee of a chose in action, asto its emanation can affect it. The part of the signed by an executor in the State where he prayer which respects the defects supposed to had proved the will and taken out letters testabe in the plat, speaks of the want of the line mentary, where the debt was contracted, and and station trees required by any law, without where the testator lived and died, could mainspecifying the laws alluded to, and the omissiontain an action in another State, without a new of the surveyor to note on his plat the begin- probate and new letters testamentary taken ning, and of any mistake in platting the water-out in the State in which the action was brought. courses. The causes of demurrer shown by the defendant in error, were: 1. That the replication does not allege and set forth that the will of the testator was proved, and that letters testamentary were granted to the executor in the State of Mississippi. 2. That the replication does not show that the will of the testator was proved, and probate thereof granted to the executor or any other person within the jurisdiction of the court; nor that it was granted by a tribunal of competent jurisdiction. The Act for opening the land-office contains The question arose on the demurrer of the no particular rule respecting plats; and the defendant to the plaintiff's replication, setting Act which requires surveyors to note the begin-out the probate, letters testamentary, assignning corner of their surveys, passed in Decem- ment, &c. The District Court sustained the ber, 1789, long after the emanation of this demurrer and decided against the plaintiff's patent. It would seem that the officer by right of action. whom the patent was issued, was the proper judge of all things apparent on the face of the plat, and that the patent itself presupposes that the plat was sufficient in law as to those requisites of which he could judge by inspection. This part of the instruction might have been given. But it is connected with a request that the court would instruct the jury that no fraud on the part of the officers of government could affect the plaintiff's title. It is not easy to perceive the extent of this instruction, and it could not, we think, have been safely given. 238*] *The 6th exception states, that the said plaintiff moreover gave evidence conducing to prove that the title of Bazil Jones, the grantee of the said land, had been regularly and legally conveyed to the lessor of the plain-thority was indisputable, operated a complete tiff in this action, before the commencement thereof; and that all the lands in the possession of the defendants, and of each of them, at the time of the service of the process in this action, were within the lines described by the said grant to the said Bazil Jones, and were on the north and east side of the said south fork of the Oconee River. And thereupon, the said counsel for the plaintiff moved the court to instruct the jury, that, upon the aforesaid evidence, if the jury believed the same, the plain- | tiff was, by law, entitled to recover the premises in dispute; which instruction the court, being divided in opinion, refused to give. This prayer states more explicitly the facts contained in the 3d and 4th, and is understood to come completely within the opinion of the court on them. It is the opinion of this court that the Circuit Court erred in not instructing the jury that the grant under which the plaintiff made title was valid as to the lands in possession of the defendants; and that for refusing to give this instruction the judgment of the said Circuit Court ought to be reversed and the cause remanded, that a venire facias de novo may be awarded. 239*] *J. HARPER, Plaintiff in Error, V. ANTHONY BUTLER, Defendant in Error. When, therefore, an executor, having proved the will of his testator, in Kentucky, had assigned a promissory note due to the estate by a citizen of Mississippi, the suit was well brought by the assignee, without any probate of the will in that State. Mr. Jones, for the plaintiff, contended that the assignment being consummate in the jurisdiction where the executor's *au- [*240 transfer of the chose in action there; and carried with it a right of action everywhere; to which no new probate, or letters testamentary, could have added any validity whatso ever. No counsel appeared for the defendant. Mr. Chief Justice Marshall delivered the opinion of the court. This is an action of debt brought by the plaintiff in error, in the Court of the United States for the District of Mississippi, as the assignee of Henry Clay, executor of James Morrison, deceased. The defendant pleaded in abatement, that the will of James Morrison had not been proved or recorded in the State of Mississippi, nor had letters testamentary therein been granted to Henry Clay, the executor. To this plea there was a replication, which set out the probate of the will in the State of Kentucky, the letters testamentary to the executor, and the assignment, in the State of Kentucky, of the note on which the action was brought to the plaintiff in error. To this replication the defendant demurred. The court gave judgment for the defendant, and the plaintiff has sued out this writ of The judgment is reversed, and the cause re-that court were divided in opinion, and which manded to the District Court with directions have been certified to this court, and was to overrule the demurrer. Overruled-6 Pet. 301. 241*] *LESSEE OF WILLIAM A. POWELL et al., V. JOHN HARMAN. argued by counsel; on consideration whereof, this court is of opinion, that under the statute of limitations of Tennessee, of 1797, a possession of seven years is a protection only when held under a grant or under valid mesne conveyances, or a paper title, which are legally or equitably connected with a grant; and that a void deed is not such a conveyance as that a possession under it will be protected Construction of Tennessee statute of limita- under the statute of limitations; all which tions. Under the statute of limitations of Tennessee, of 1797, a possession of seven years is a protection only when held under a grant, or under valid mesne conveyances, or a paper title, which are legally or equitably connected with a grant; and a void deed is not such a conveyance as that a possession under it will be protected by the statute of limitations. case came before the court from the is directed and ordered to be certified to the said Circuit Court of the United States for the Seventh Circuit and District of West Tennessee. Overruled-6 Pet. 293, 301; 1 Wall. 212; 1 McLean, 19. *JOHN T. RITCHIE, Appellant, [*243 V. Circuit Court of Western Tennessee, on a certificate of division from the judges of that PHILIP MAURO and Joseph Forrest, Ap court. In the court below, the lessor of the plaintiff showed a regular title to the lands in question, under a grant from the State of North Carolina; and proved that the defendant was in possession of the land in dispute. The defendant proved that he had been in peaceable possession of the land for more than seven years, holding adversely to the plaintiff, under a deed from the sheriff of Montgomery county, dated the 14th of April, 1808, founded upon a sale of taxes; but which sale was admitted to be void, because the requisites of the law in regard to the sale of lands for taxes, had not been complied with. Upon the trial of this cause, it occurred as a question, whether, under the statute of limitations of Tennessee of 1797, a possession of seven years is a protection only when held under a grant or under valid mesne conveyanor a paper title, which are legally or equitably connected with a grant; or whether a possession under a void deed is such a conveyance as that a possession under it will be protected by the statute of limitations. The judges being opposed upon this question, it was referred to this court for their opinion. Mr. Chief Justice Marshall delivered the opinion of the court: ces, pellees. Guardian's interest-right of appeal. The value of the interest a guardian has in the that of the office of guardian. This is of no value, minor's estate, is not the value of the estate, but except so far as it affords a compensation for labors and services; and in a controversy between persons claiming adversely as guardians, having no distinct interest of their own, it cannot be considered as amounting to a sufficient sum to authorize an appeal to this court, from a Circuit Court of the District of Columbia. T The appellant, under an order of the Orphans' Court, had been appointed the guardian of John W. Ott; and had, in pursuance of the same order, entered into a bond, as guardian of the said John W. Ott, in the penal sum of $10,000, with sureties. The case was argued upon the whole of the matter contained in the decree, by Mr. C. C. Lee and Mr. Chambers for the appellant, and by Mr. Bradley for the appellees. As the court did not decide but upon one of the points in the case presented by the counsel, the arguments upon the others are omitted. The question now referred to this court differs from that which was decided in Pat242*] ton's Lessee v. Easton, 1 Wheat. *476, in this, that the defendant who sets up a possession of seven years in bar of the plaintiff's title, endeavors to connect himself with a grant. The sale and conveyance, however, by An objection was made by the counsel of which this connection is to be formed, are ad- the appellees, that the amount in controversy mited to be void. The conveyance being was not sufficient to authorize an appeal from made by a person having no authority to the Circuit Court of Washington county to make it, is of no validity, and cannot connect this court. The whole question to be decidthe purchaser with the original grant. Weed on this appeal was, whether the appellant are therefore of opinion that the law is for the plaintiff, and that this be certified as the opinion of this court. This cause came on to be heard on a certificate of division of opinion of the judges of the Circuit Court of the United States for the District of West Tennessee, and on the questions and points on which the said judges of or the appellees were legally entitled to the |