
    Samuel Young vs. Benjamin J. Jacoway.
    At law a contract cannot rest partly in parol and partly in writing; it is only in equity, as a general rule, that the true intent of a written contract can be shown by parol, when by mistake the contract does not exhibit truly the intention of the parties.
    Where, therefore, by a written contract, J. “set over to Y. one fourth part of the interest of A. and B. (Indians) settled or located on section 34, township 31, range 3, west,” it was held, in an action by J. against Y. on a note given in consideration thereof, that the writing was unambiguous, and that J. could not show by parol that he thereby designed only to sell Y. his interest in the land without warranty, and that that was also Y.’s understanding ; nor could he show by parol the nature of his interest in the land.
    In error from the circuit court of Kemper county : Hon. Hend-ley S. Bennett, judge.
    At the April term of the circuit court in the year 1843, Benjamin J. Jacoway instituted an action of assumpsit against Samuel Young, on a promissory note for two thousand dollars, due January 1st, 1843, and bearing interest from date. He plead the general issue, and at the October term, 1843, a verdict and judgment were rendered for Jacoway for ¡$2213 33.
    Upon the trial it was proven by Young, that the note in suit was given in consideration of an instrument in writing, as follows, viz. ': “ This is to certify, I set over to Samuel Young one fourth of the interest of Ish-te-monte and Ish-pally, settled or located on section 34, township 21, range 3, west,'this the 17th day of May, 1842. Benj. J. Jacoway.” Upon which Jacoway oifered to prove, that the two Indians named in the instrument of writing were Choctaws, who claimed under the treaty of Dancing Rabbit Creek, and had contracted with one Mcllvaine, to give him one half of their interest in the section of land mentioned in said instrument for prosecuting their claim thereto; and that Mcllvaine had sold one half of his interest to the defendant in error on the same conditions on which he had himself contracted ; and also that Young had purchased from Jacoway upon the same terms, and was to stand in his shoes. Young objected to the admission of this evidence, but his objection was overruled, and the proof made. It was in proof also that Young had never been let into possession of the land, nor had Jacoway, but that at the time of the contract between Jacoway and Young there was adverse possession by third persons.
    To the admission of the testimony explaining the nature of the contract and the interest of the parties therein, Young filed a bill of exceptions. He then insisted that the contract was without lawful consideration and void, and requested the court so to instruct the jury, which the court refused to do. Other instructions were prayed by him, which were refused, and one charge given by the court, which it is not deemed necessary to notice; to all which Young excepted, and brought this writ of error.
    
      Pryor Lea, for plaintiff in error.
    1. This unsealed instrument, if taken according to its own showing, utterly destroys all pretence of consideration, as it purports to set over the interest of other persons, and not any interest of the bargainer himself; and in this view of the matter, the nature of the interest or property is wholly unimportant. It is not left doubtful whether any value passed, but the negative is expressly shown, when the trader avowedly deals on the interest of another.
    And, to obviate this manifest difficulty on the face of the paper, the plaintiff below introduced oral evidence, to make out the contract different from the paper itself; and the court below received it in the face of objection, and although the law is deemed unquestionably settled to the contrary. 1 Greenl. 276-278.
    2. But, if the parol evidence could be heard, to vary the writing and to show the contract, then no consideration appears, for that parol evidence purports merely that plaintiff below passed over to said defendant below, “ only the interest which he (Jacoway) held in said land, whatever it might be, without liability or guaranty on his part.” But, to constitute any valuable consideration, it must appear that the bargainer had some interest, inasmuch as it is expressly shown that he incurred no responsibility to the bargainee, stipulating against “ liability or guaranty.” To make a consideration there must be some valuable interest, or for the want of it personal responsibility; and when the thing is ascertained for which the note was given, and it does not import value of itself, the burden of proof is on the bargainer to show the value, or the case becomes resolved at once into a naked promise, without any equivalent. But there is an entire want of proof of any valuable interest in the bargainer, and the witness shows the negative.
    3. Take the parol evidence, and it attempts to establish a verbal contract between witness and some Choctaw Indians, in the first place, for part of their claims to lands, of which none of the parties were in possession, but which were held adversely, for which part the witness was to perform services and bear expenses in procuring title and obtaining possession; and that witness had transferred to plaintiff below the half of this execu-tory parol contract, which was the consideration of the note on ■another bargain of transfer between plaintiff and defendant below, against which contract there are several objections. 1. It conveys no interest. 2. It is against the policy of the government. 3. It is against the statutes of frauds. 4. It is against the laws forbidding champerty.
    Marshall, on the same side.
    
      W. Yerger, contra.
   Mr. Justice Thacher

delivered the opinion of the court.

This is a writ of error to Kemper count]/- circuit court.

Jacoway instituted an action of assumpsit upon a promissory note, made by Young payable to plaintiff. Upon the trial, Young introduced in evidence an instrument in writing, which was proved to be the contract which constituted the consideration for which the promissory note was made. The instrument was in these words: “ This is to certify, I set over to Samuel Young one fourth of the interest of Ish-te-monte and Ish-pally, settled or located • on section 34, township 21, range 3, west, this the 17th day of May, 1842. Benj. J. Jacoway.” The plaintiff below then sought to show by a witness, that the understanding between the parties to this contract was, that Jacoway passed to Young only the interest which he held in the land without liability or guaranty upon his part; and also, by another witness, the nature of the claim of Jacoway to the land. In this desire he was indulged by the court below against the opposition of the defendant.

In the written contract there is no ambiguity. It purports to assign a portion of the interest of two Indians to a certain tract of land. The evidence went to show an assignment of another person’s interest, and also to limit the extent of that assignment. At law, a contract cannot rest partly in writing and partly in parol, and it is only in equity, as a general rule, that the true intent of a written contract can be shown by parol, when from mistake the contract does not exhibit truly the intention of the parties. The object of the plaintiff was to show that there was a mistake, and an omission in the written contract, and to correct that mistake and supply that omission. Such evidence has been properly held to be inadmissible. Peques v. Mosby et al., 7 S. & M. 340. The instructions of the court having been given with a view to evidence improperly admitted, were, as far as based upon that evidence, erroneous.

The judgment must be reversed, and a new trial granted by the court below.  