
    Lessee of Mathers against Akewright.
    
      Pittsburg, Thursday, September 7.
    IN this case a verdict was taken for the plaintiff at the Mercer Circuit in September 1808, subject to the opinion of the court upon a point reserved; and judgment being entered for the plaintiff, the case came to this court by appeal,
    If the plaintiff ™0unTi™equity to make title to for apaiuffthe premises, the court will do the defendant justice by staying execution upon the judgment until the title 5s secured.
    
      A certain John Kean who had commenced a settlem ent upon the tract of land in question, articled to convey 100 acres of it to the defendant, who agreed to make settlement &c. in five years, and to clear and fence four acres in Kean’s part. Kean afterwards left the state, and the defendant caused a survey to be made in his own name, and said he would have the whole tract. The creditors of Kean took out a domestic attachment against his property, and by virtue of it sold the tract to the lessor of the plaintiff. The defendant then sold his 100 acres to one Farrell to whom he gave possession, and he retained possession of the residue himself. The question was whether the plaintifF could recover, as he had not completed the title of Farrell before the ejectment was brought.
    
      Baldwin for the defendant
    contended that as the plaintiff asked equity in this suit, he ought not to be permitted to take away the defendant’s possession, until the 100 acres were confirmed, or security given to make the title good.
    
      Foster contra
    
    insisted that the defendant had disavowed the article of agreement, by getting a- survey in his own name, and claiming the whole land; and of course that he had no equity.
   Per Curiam.

The defendant ought to be secured in the 100 acres according to the article; and that may be done by-ordering stay of execution until the title is secured. But he ought to pay costs, because the first act of misconduct came from him, in disavowing the article, and endeavouring to secure the whole land for himself.

Judgment affirmed, with stay of execution, until the title of the defendant to the 100 acres should be secured according to the article of agreement.  