
    Alexander Wright against Brice M'Gehan.
    An indescriptive warrant, will not effect an improvement made before the same was entered and surveyed; but it must be a personal resident improvement.
    Covenant. Plea covenants performed.
    
      The action was brought on an article of agreement, dated 8th March 1796, whereby the plaintiff had sold all his right and claim to an improvement of 400 acres, north and west of the river Ohio, adjoining, &c. in consideration of 125 dollars, payable on the 1st May 1796, and the like sum in one year thereafter. But if the population land company should hold these lands by their warrants, then the consideration money to be returned to the defendant, without interest.
    The defendant had paid no part of the consideration money. To shew that the money was not recoverable, he produced a warrant, dated 14th April 1792, to Michael Shubert for 400 acres and a survey made thereon on the 13th March 1795, by John Power deputy surveyor. The leading warrant had issued in the name of Matthew M ‘Connel, for 400 acres, extending along Big Beaver creek, near the falls thereof, and was entered in the books of James Caruthers, then deputy surveyor of the district, on the 10th June 1793 ; Shubert’s warrant was entered on the same day, and ninety-one warrants intervened between them.
    The plaintiff about the time of the survey made for Shubert (or one or two days before it, as it probably appeared from circumstances, though the particular day was not shewn by direct testimony,) erected a cabin about fourteen feet square, on the land, covered it in, but without chimney or door in it, and sold his improvement to the defendant; but no one had then lived on the land, or cultivated any part of it,
    Mr. Collins for the defendant,
    insisted, that the plaintiff had no title to the lands sold, under his fancied improvement; and that want of title without eviction, was a good defence in an action for the price of the land sold. Addis. 128.
    Messrs. Ross and Woods for the plaintiff,
    urged, that under the law of 3d April 1792, (3 Dali. St. Laws, 210,) it was enacted, that application should contain a particular description of the lands applied for § 3. — And it is provided by the act of 22d * „ 1 * April 1794, (lb. 581,) that no warrants, except those -* wherein the land is particularly described, shall in any manner affect the title of the claim of any person, having made an actual improvement, before such warrant is entered and surveyed in the deputy surveyor’s books, § 2. — And the act of 22d September 1794, (lb. 637,) has the same proviso, in favour of improvers, § 2. Here it may fairly be inferred, that the house was built before the survey was made for the population company, which was the inception of an actual improvement under the law of April 1794. It could not be contended, that Shubert’s warrant was descriptive of any particular ground. It depended on the location of ninety-two other warrants,. and necessarily must shift its situation, according to the surveys made on the prior warrants. If such warrants must be postponed to improvements, then the title of the plaintiff was preferable to that of the population company. But if the house erected, should be thought not to merit the appellation of an improvement, still the plaintiff is entitled to recover the value of the house. The defendant after contracting for the land, received the possession, and then purchased of the population company.
   By the Court.

The meaning of the agreement appears clearly on the face of it. If the title of the population company was better than the plaintiff’s, the latter was bound to return the consideration, if he had received it. But if the plaintiff had no title, the defendant was not bound to pay. The warrant being indescriptive, would give way to a bona fide settlement and improvement, if made previous to the survey, under the proviso in the act of 22d April 1794, but not to a land-jobbing cabin, made without an intention of residence. The improvement .meant in this law, can be no other than that described in the act of 30th December 1786, (2 St. Laws, 488,) and this fully appears by the act of 22d September 1794. On this point, the court expressed the grounds of their opinion fully, in Meade’s lessee v. Haymaker.

But it is said, the plaintiff should be allowed for his cabin. Why so? No such provision was made in the article, if the title of the population company was preferable. The effect of a recovery by that company against the defendant, would be that the judgment would be conclusive evidence against the now plaintiff. At present the point of title is open for investigation by the present jury; and the court are clearly of opinion, that the want of title in the plaintiff is a good defence in the present suit, though there has been no eviction.

Verdict for the defendant.  