delivered the charge to the jury.

It is agreed, that the plaintiff’s legal title has the priority; but the conflicting rights are grounded on the improvement claim of pre-emption of James Sharron, which will greatly influence the relative titles.

*It-has not been established, that it was agreed be- p* tween the counsel in the two suits, that the surviving 13 5 administrator should apply to the Orphan’s Court for an order of sale to complete the title. If that fact had been ascertained, it would have been incumbent on the heirs of William M'Teei to have bid in the land, or to have raised it so high, as after deducting therefrom the monies due on the two bonds, the surplus payable to them would have indemnified them for any expenditures made on the land.

In the early state of the country, say before 1761 or 1762, titles by improvement were considered to many purposes as chattels, and sold as such by executors or administrators, to enable them to pay debts or bring up children. When these transactions have been fair and honest, and the consideration money has been applied to discharge debts or maintain children,' they have been always sanctified, as between the original parties, their legal representatives and purchasers under them. In progress of time, when improvements came to be more respected, and supposed to partake of all the qualities of real estate, the rules as to their disposition, and particularly as the property of deceased persons, were the same as those of patented or warranted lands. But it would be difficult indeed to point out a single instance, where it has been even supposed, that as between the original purchasers of an improvement right, or their legal heirs, and the *305vendors, the right would vest, unless the money contracted for had been paid, or a deed had been given transferring the interest. In all the cases which have occurred within my experience, or which I have heard of, the families of the deceased person, have reaped the substantial benefits of a fair sale, though conducted without the instrumentality of an Orphan’s Court, or proper authority in the will. The honest equivalent has been the basis of the usage which formerly prevailed; and without it, in the cases to which my remarks are confined, the heirs- of an improver ought not to be stripped of their right. The present instance affords one great prominent feature, that the dispute rests between the children of the purchaser, who has not performed his contract, and the vendee of the administrator under a second sale.

Both M'Teer and Sharron ran great risque in taking out tbeir first warrants for 100 and 150 acres of land. If a third person had obtained in the intermediate periods, a warrant for the adjoining lands, they would in vain have objected there to the extent of the improvement right. It is certainly true that Sharron practised a deception against the commonwealth, by carrying the interest on his purchase money only as far back as 1 st February 1768, instead of the true commencement of his uncle’s improvement. His vendee has the good fortune to avail himself of his possession.

* n61 object of the order of Orphan’s Court must neces-0 -* sarily have been to sell the whole improvement, with all its rights, to their fullest extent.

The case then stands thus. William M'Teer bought this improvement from the administrators of James Sharron, for 113I., and paid two bonds, amounting to 56I. 6s. 8d. Two other bonds of 28I. 6s. 8d. each, payable in 1755 and 1756, remained due, which were not sued until January term 1773, when defences were set up against them. The administrators of M'Teer contended then, they were not bound to pay, because their intestate had got no title by the sale. Now the heirs insist, that a right was vested thereby; or in other words, that though the payment of more than one half of the consideration money had been resisted, they have all the equity of fair and honest purchasers. This is not easily swallowed. Notwithstanding all this, Sharron, the administrator, ought not, on moral principles, to derive any benefit from his sale under the order of Orphan’s Court, beyond reimbursing himself for his expenditures.

The account might be thus stated :

*306

So that though Sharron conceived himself driven to the necessity of an application to the Orphan’s Court, he has been subjected to expences, instead of reaping any personal advantage therefrom. By the second sale, he intended to secure the *debts due to his intestate, and directed information to be given to the lessors of the plaintiff that the land would L 3 7 be conveyed to them, on their discharging the debts due thereon from the estate of their father. According to the account given by one of the witnesses, the same offer was personally made by Sharron to the eldest son in 1787, who wholly refused the same. His first warrant was taken out on the 23d February 1786. The other children were scattered about in different states.

After all this, ought an honest purchaser, who has made many :/nd valuable improvements, without notice, be disturbed in his possession after a lapse of many years ? The plaintiff’s counsel urge, that he may avail himself of his general warranty, and the 98I. yet remaining unpaid of the purchase money. But it is highly questionable, whether he could.intitle himself to compensation for his improvements under the covenant of general warranty. This point is sub judice, in three cases in bank.

The only real difficulty respects the 57-f acres, surveyed on Sharron’s second warrant, whether the plaintiff is not intitled thereto under his prior application and survey ? If their application had been taken out between the first and second warrants of Sharron, I should have deemed it intitled to a preference, if it had been prosecuted in a reasonable time by a survey. But, considering that Sharron the elder would have been intitled to 300 acres by virtue of his settlement and improvement, under the usage of the proprietary land office, that the refusal by William M'Teer and his representatives to pay a just debt has led to the present difficulty, and more especially that the conduct of William M'Teer in taking out an application in 1767, could not *307possibly be influenced by any thing done subsequently, and consequently that his money was not paid from a confidence of any foreclosure as to any future adverse right, I incline to think, thar for these 57-I acres also, a verdict, should pass for the defendant. The children of M'Teer should have tendered the money due from their father, before they could hope to convert the defendant into a trustee.

Verdict for the defendant.