RHODES, J. — It appears that the plaintiff made his application to purchase the land in controversy for the use of Ketchersides. The defendant contends that Ketchersides had previously entered six hundred and forty acres of swamp and overflowed land; and that, therefore, the plaintiff’s application was illegal and void. The only evidence in the record that Ketchersides had entered such land is his affidavit of loyalty which was made in conformity with the act of April 27, 1863, and the official indorsements thereon.
Such evidence tends to show an application to purchase, but does not show that the applicant had in fact entered the land. In order to avoid any misapprehension as to a point of practice, it is proper to add that it does not clearly appear whether a motion for a new trial was made; and that if such motion was not made, and denied, and an appeal taken from that order, the question above noticed would not be entitled to consideration on this appeal. Judgment affirmed. We concur: Niles, J.; Belcher, J.; Wallace, C. J.