The bill must be dismissed. It would be a libel on the Legislature to suppose, that the statute was designed for the convenience of that class of characters to which these parties seem to belong. It was intended for the relief of injured innocence, not to encourage persons of loose morals, or rather of no morals at all, to live in the open, scandalous violation of the common rules of decency. This application is to the equitable jurisdiction of the court, and must be decided by the principles which prevail in courts of equity. The complainant must come with clean hands and a chaste character, not stained with the same infamy and crime of which she complains. These parties are in pari delicto and to grant relief to either of them, would be offering a bounty to guilt. It would place the permancy of the marriage contract, in every case, at the disposal of the contracting parties, and remove one of the strongest motives to that correctness and chastity of conduct, which is necessary to render the marriage state, either pleasant or convenient.

The ground on which this bill is dismissed, is not new in the practice of this court. Many have been dismissed for a similar reason, and we had reason to believe, that the practice was sufficiently known to prevent applications liahle to this objection.

Bill dismissed.

LESSEE OF McCULLOUGH'S HEIRS v. RODRICK.

JUDGES HITCHCOCK AND BURNET.

1826.

An assignment, by an insolvent in Pennsylvania, of all his estate both real and personal, does not pass real estate in Ohio.

The plaintiff having exhibited a patent to the ancestor of his Lessors, covering the land in controversy, and proved the possession of the defendant, rested his cause.

The defendant then offered a transcript from the state of Pennsylvania, for the purpose of showing that S. McCullough, under whom the plaintiff's claim, had taken the benefit of the insolvent act, and assigned his property for the use of his creditors. The assignment was in these words: "I do hereby assign all my estate, real, personal, and mixed, to J. B. and J. H. in trust for the use of my creditors. In testimony whereof I hereunto set my hand and seal, 11th December, 1824, and I do hereby authorize and empower any attorney to appear for me, in an amicable ejectment in the name of the assignees, and confess judgment for the 273 acres with the appurtenances."

This testimony was objected to, and overruled by the court, on the ground that whatever may have been the effect of the assignment in Pennsylvania, which was a question not necessary now to be decided, it could not pass the title to real property in Ohio, which must be transferred in pursuance of our own laws. The legal title therefore remained in the assignor, and descended at his death, to the lessors of the plaintiff, who are his heirs at law.

If we were disposed to give to this document the greatest effect that can be

claimed for it by the defendants, it would show nothing more than an outstanding equity in third persons, which cannot be set up to protect the defendants' possession against those, who hold the legal estate, and as this is the only use that could be made of it, it cannot be received as evidence.

Verdict for the plaintiff.

LESSEE OF SHALER v. MAGIN.

JUDGES HITCHCOCK AND BURNET.

1826.

An occupying claimant is entitled to recover for improvements made on the land before his title commenced.

The commissioners appointed at the last term, to estimate the valuable and lasting improvements made on the premises, prior to the commencement of the ejectment, having reported, Mr. Brush moved, on behalf of the successful claimant, to reject the report and discharge the commissioners, on the ground, that the improvements were made before the title commenced under which the defendant claimed.

The facts as they appeared from the report and the testimony were these. An entry had been made on the land in dispute prior to the year 1818, under which the defendant took possession, and made the improvements in question.— In October, 1818, after the improvements had been made, the entry was withdrawn, and about the same time another entry was made on the same land by Ellis, under whom the defendant claimed.

By the COURT.

This motion cannot be sustained. The defendant had an equitable title of record at the time he commenced his improvements, which continued till the improvements were completed. His possession was not interrupted by the withdrawal and re-entry of the warrant, nor were the rights of the plaintiff in any mauner affected by that circumstance.

But independent of this consideration, we discover nothing in the statute, that limits the claim of the occupying claimant to a compensation for such improvements as were made after the commencement of his title. The statute is in the present tense; "when any occupying claimant, being in quiet possession of land, from which he can show a plain and connected title in law or equity," &c."If any person shall set up and prove an adverse, and better title to said land, such occuppying claimant, shall not be evicted, until he shall be fully paid the value of all lasting and valuable improvements made by such occupying claimant, or the person under whom he may hold the same, previous to receiving actual notice by the commencement of suit," &c.

The exhibition of his title, is to be made to the court at the rendition of the judgment, and if he can then shew such a title as is required by the statute, he is protected in his possession till he shall be compensated for the improvements made by himself, or by the person under whom he claims. There is nothing in

the law, that excludes a right to receive pay for improvements made by the tenant, or the person under whom he claims, at any time before the commencement of the suit.

It sometimes happens, that persons seat themselves on vacant land, make valuable improvements thereon, and afterwards locate it. In such a case, if, in consequence of a defect in their entry, a junior entry should prevail, we cannot see any thing in the law, or in the policy on which it is founded, that entitles the successful claimant to take the improvements, without making compensation of the tenant.

It may also be remarked, that in this case it does not appear at what time the better title of the successful claimant commenced; whether before or after the making of the improvements in question.

It is not necessary now to decide, that an unsuccessful claimant must in all cases be entitled to pay for improvements made before the commencement of his title although the statute does not contain any thing expressly prohibiting it, yet a case might arise accompanied by such circumstances, as would take it without both the letter and equity of the statute. All we mean to say is, that this is not a case of that character.

They crossed the Ohio at Limestone, fell on the Big Three-mile-creek, continued up it, crossing it frequently till they came to where Shepherd now lives, from thence they bore up, on the west side, to where the beginning of Minnis' survey was made, at a walnut and two sugar trees, on the east side of the creek, and east side of the trace. Letters were made on the walnut, but does not recollect what they were; has seen the tree every year since except in 1818 and 1819.

Has always heard that called the beginning corner of Minnis' survey. The corner trees stand near to where the trace crosses the creek the last time. He' showed the corner to the county surveyor of Brown.

There was about three hundred men on the expedition. The trace was plain but narrow. Kenton called it the old war road from Limestone to old Chillico the. Three-mile-creek empties about three miles below Limestone. It is the first creek below Limestone, except fishing-gut, so called, which is the first low Limestone, on the Ohio side. Has not heard it called a creek, or by any other name than Fishing-gut.

Limestone and Kenton's station, were the nearest settlements to the survey. The tract was generally known by the name of Todd's trace, and was plain enough to be followed.

The mouth of Limestone creek was notorious in 1784, and has always been known by that name.

Benjamin Beasley testified, that he settled in Manchester in 1790. Shortly after he heard of Todd's trace running up Three-mile-creek and about the same time, he heard of the tree spoken of by Palmer. He was acquainted with the beginning corner of T. Peyton's entry, and showed it to the county surveyor of Brown.

Manchester was settled in the year 1790. He became acquainted with the branch, on which T. Reese lives, in 1797, it was called Covert's run.

On the part of the defendants, it was testified by N. Beasley, that the first creek on the north side of the Ohio, below Limestone creek, is called Fishinggut. It went by that name since 1791. According to his apprehension Fishing-gut is of such size and description as to entitle it to the appellation of a creek. It is such as surveyors have been in the habit of calling creeks.

Fishing-gut empties into the Ohio better than two mile above Three-mile

creed.

In 1803 he became acquainted with the beginning corner of Minnis' survey, has seen it several times, and has surveyed from it; he never saw any letters on it.

The corner is about five miles from the nearest point on Fishing-gut-creek. He does not know that he has heard the people call Fishing-gut a creek, he has generally heard it called Fishing-gut only.

Three mile-creek was generally known by the name of Big Three-mile. James Pilson being asked the name of the first creek below Limestone, answers Fishing-gut is the first that would be called a creek. It is not a large Does not know its length, there is a mill on it, always heard it called Fishing-gut, believes he should call it a large branch; it empties about two miles above Big Three-mile.

stream.

He has seen the walnut on Big Three-mile claimed as the corner of Minnis' entry, and has made a survey from it. He thinks he saw marks on the walnut, but cannot tell what they were. Big Three-mile is the first creek on the north below Limestone, if Fish-gut is not considered a creek.

Peter Lee testified, that he was with Col. Todd on his expedition in 1787.— They crossed the river at Limestone, then a landing place of great notoriety, they crossed Three mile-creek several times. It was then, and has ever since been known by the name of Three mile, after they crossed the creek the last time they followed a trace previously existing. The trace crossed the creek the last time, near where two branches unite.

At the time the expedition went out, there were several stations settled in Mason county, Kentucky, from which there were men on the expedition. After the expedition, the trace was called Todd's trace, and could have been found and followed.

Limestone, Todd's trace, and Three-mile-creek, in 1787 were places of great and general notoriety.

The cause was argued by,

Brush, for the complainant. Marshall, for the defendant.

By the COURT.

The complainant claims under an entry made in May, 1797, in the name of Timothy Peyton, in the following words: "Timothy Peyton (heir) enters 1000 acres of land, on part of a military warrant, No. 1296, on the waters of Threemile-creek, beginning at the most westwardly corner of William Love's entry, No. 2712, running with this line N. 460 E. passing his corner to the line of Thomas Perkins' entry, 2798, thence with his line N. 600 W. to his corner, thence N. 300 E. to another corner in the line of Isaac Hite's survey 1759, thence N. 600 W. so far that a line N. 600 W. from the beginning, at right angles with the line N. 309 E. will include the quantity.

The defeudants claim under an entry made in 1796, in the name of John Bartlett, and are in possession under the oldest patent. This being the case, they cannot be disturbed till the complainant makes out an equitable title, clearly and satisfactorily. The merits of that title must therefore be first investiga ted.

It is very evident, that the call for the waters of Three-mile-creek, though a good descriptive call, is too vague and uncertain to ascertain the locality of the land, intended to be recovered by the entry; recourse must therefore be had to the other objects referred to. Love's entry, a corner of which is called for as a beginning, calls for the upper back corner, of T. Obrian's entry, which calls for the lower corner of Jacob Edwards, in the line of P. Slaughter's survey. Ed. wards calls for Slaughter's survey, which lies opposite the mouth of Limestone, and is admitted to be special and abundantly notorious. The complainant has therefore succeeded in establishing his beginning corner. But this is not enough. As he calls to run from his beginning, with the line of Love's entry, to the line of Perkin's entry, without giving the distance, the termination of his first line cannot be known, without establishing and locating the lines of the entry by which it is to be bounded. As it is taken for granted that the lines of every en. try are open and cannot be ascertained without a survey.

On looking into the entry of Perkins, we find it depends altogether on the survey of H. Brooks. H. Brooks' survey depends on other surveys called for, which surveys depend on the survey of Samuel Hopkins. Hopkins' survey calls for the south east corner of Callohil Minnis' survey, No. 460, and depends on it, consequently it is indispensably necessary for the complainant to establish this survey of Minnis, in order to sustain his own entry.

It appears that the intermediate entries called for have been correctly surveyed, so that no difficulty arises from that source. The right of the complainant to question the defendant's title, must therefore depend on the validity of Minnis' survey, No. 460, as that claim must be correctly located and established before he can ascertain the termination of his first line.

Minnis' survey calls to lie "on the N. W. of the Ohio, on the waters of Threemile-creek, beginning at a walnut marked H. and two sugar trees, on the bank of the creek, running N. 30, E. 400 poles," &c.

It must be evident, that this survey does not convey the precision and certainty in its calls, that is necessary to enable a subsequent locator to ascertain