
    *AT A CIRCUIT COURT, AT WASHINGTON,
    OCTOBER 1800.
    CORAM, YEATES AND SMITH, JUSTICES.
    Lessee of Richard Carrol against Robert Andrews.
    Where one settles and improves lands and obtains a warrant and survey and sells, and his vendee returns the former warrant as unsatisfied, and obtains a new warrant as for unimproved lands, he shall be postponed to an intervening claimant.
    EjectmeNT for one messuage and 150 acres of land on the waters of Ten Mile Creek.
    It was admitted, that the lessor of the plaintiff, and Samuel Parkhurst, under whom the defendant claimed, originally held the lands in question by improvement rights.
    The facts turned out in evidence as follow: — Stephen Carter settled on the lands in 1785, built a house and barn, planted a nursery, and cleared about 30 acres. He took out a warrant dated and obtained a survey of 400 acres and allowance in 1787, by Thadeus Dodd, an assistant surveyor under David Redick, esq. Two years after, he removed to the Miami, leaving his farm under the care of Samuel Parkhurst, to be sold or rented. Parkhurst, as his agent, on the 25th November 1790, conveyed to the defendant 400 acres and allowance, as surveyed under Carter’s warrant, in consideration of 140I. The defendant afterwards, on the suggestion of Daniel M'Farland, procured Carter’s warrant to be returned unsatisfied; and on the 18th December 1794, obtained a new warrant for 400 acres on the .head waters of Ten Mile Creek, adjoining the lands of Richard Carrol and Lawrence Craft, at 50s. per hundred acres, upon which 406 acres and allowance were surveyed by John Hoge on the 9th January 1796.
    Previous to the last warrant, the lessor of the plaintiff made a settlement and improvement on the lands in question.
    The court said, that they had been led into the evidence of the improvements made by Garter, by the opening counsel; but had the facts been fully stated, they would not have permitted such evidence to have been given, under the circumstances of this case. The conduct of the defendant was a fraud on every citizen of the state. Instigated by avarice, and the low cunning of M'Farland, he has abandoned his elder and better title, under Carter’s warrant,.and he must now be concluded by his warrant of 1794, as for unimproved lands. Though evidence has been received of valuable improvements made by Carter, it cannot *60] *avail defendant, who by his own voluntary act has defeated his claim thereto.
    Cited in 1 S. & R. 136 to show that a warrant-holder precludes himself from de-' riving his equitable title of improvement beyond the day called for in his warrant. Cited for a similar purpose in 4 S. & R. 434.
    The defendant’s counsel then relied on the bill of sale from Parkhurst of the warrant right and survey of Carter; and offered to shew by parol evidence a purchase from Parkhurst of the improvement right.
    Messrs. Pentecost and Simonson, pro quer.
    
    Mr. P. Campbell, pro def.
    
   But

by the court.

How can you entitle yourself under a warrant, which you have obtained a return of, as unsatisfied ? Can you relinquish you'r interest under it, and yet retain your right against the commonwealth, whom you have attempted to defraud ? One may lose an honest debt by playing a trick to come at it; as by adding a seal to a note, which was sufficient without it. 2 Vern. 162. You have produced a written conveyance from the agent of Carter, and are precluded from shewing the transfer by oral testimony.

Verdict for the plaintiff.  