Cundiff v. Orms , 7 Port. 58 ( 1838 )

COLLIER, C. J.

— In respect to the rejection of the agreement between the parties, it was determined, when this case was here two years ago, that such an agreement was opposed to the letter as well as the spirit of the act of Congress under which the entry of the lands was made. That act having declared “ that all assignments and transfers of the right of pre-emption 'given prior to the issuance of the patents, shall be null and voidno interest vested or was confirmed in the land by force of the agreement. Had the agreement been posterior in date, to the supplementary act of eighteen hundred and thirty-two, which repealed the inhibition of the right to make transfers and assignments, the case might have been different. To S. P. McElyea vs Hayter, (2 Porter R. 148.)

There certainly was no legal objection to the admission of the evidence of a survey, as proved by the surveyor, or of his parol evidence explanatory, of it. Parol testimony was admissible to'prove the lines, as well as the part of • the land occupied by the plaintiff in error : and if in giving evidence of these facts, it was desirable to make his testimony more intelligible to the jury, it was clearly permissible to use a plat of the land for that purpose, as well as to refresh his memory by reference to it, as a memorandum made by himself.

There is no error in the matters assigned, and the judgment is therefore affirmed.