by John Marshall

“ This probability is supported by other testimony than is furnished by the contract itself. James Dunlap, the brother of John, deposes, that Alexander Dunlap told him he and the plaintiff had purchased the tract of land in partnership; language which certainly alludes to the whole tract. The partition, too, which was afterwards made, after an actual survey for the purpose, if it divided the tract into moieties, is almost conclusive evidence that the idea of Fowler's title to the surplus had not then occurred to the appellant. ”

“ If, instead of selling the whole survey, as the assignment imports, he had sold only a part of it, his natural course would have been, either to take out the patent in his own name, and give his obligation to convey a part when the patent should issue, or to take it out in their joint names, entering into an agreement specifying their respective interests, or to take some obligation from Alexander Dunlap, binding him to re-convey the surplus. A written contract cannot be varied by such suspicious testimony as that of Fowler ”

“ The respondent agreed to give him 300 dollars for the surplus, and Fowler's receipt for that sum, dated the 17th of October, 1800, is annexed to the answer. Though the defendant introduces into his answer the allegation that he purchased only 1000 acres of land, yet it is remarkable, that in the first part of the same answer he states himself to have purchased the entry and also says that the surplus was not discovered until many years afterwards, when the survey was made. ”

“ It is certain, that an effort towards a partition has been made, and the questions which grow out of this effort constitute the sole difficulty in the case.
The bill charges, that before the grant was issued, the parties divided the land in equal quantities, and the plaintiff paid Alexander 60 dollars for choice of moieties, and elected to take the northern, or upper part. A dividing line was then run, and each party took possession of his land in severalty. ”