Den on Demise of Burton v. Murphy, 4 N.C. 259, 1 Taylor 259 (1818)

Jan. 1818 · Supreme Court of North Carolina

4 N.C. 259, 1 Taylor 259

DEN on Demise of BURTON against MURPHY.

Where omt nantsincom-m<motatract of land eon. die ee'and those claiming' un¿er him re-mííl1? m P°®T seven years, claimantsnoU hfi'ig under this gives der the s(a-tute oflimi-tations totlie whole tract.

A repognir zancecreates oi^land^^AS^ the 00,⅝ sor after-wards sells ft, it pásseg-acumonWt

The Plaintiff claimed title to the land in the following manner. It was granted to A. Inman, on the 14th Sept 1779; Inman sold it to John Welch in 1784, who died o before the year 1795 intestate, leaving five sons, viz Thomas, William ajames and Andrew. In the year 1800, John Welch, the younger, conveyed the whole tract to T, , ,. , . , , Joseph Dobson, who took possession ol it immediately. On the 20ih Tan. 1803, James, Thomas, William and Andrew Welch, conveyed to John Welch', Joseph Dobson conveyed the land to Seth Jlyatt, 9th April, 1Í05, who took possession, and continued until July, 1809. At July {Sessions of Burle County Court, 1809, Seth Hyatt was bound in a recognizance, and at October Sessions he failed to appear, was called out, and upon the forfeited . , , /• * recognizance judgment was entered, alter process execution issued, and the Plaintiff became the purchaser at Sheriff’s sale. Joseph Dobson and Seth Hyatt had more than seven years continued possession from the date of the deed from John Welch, for the whole tract, till the r TT r f ■ recognizance ol Hyatt vva§ forfeited*

Defendant claimed title as follows. In July, 1809, ■ judgment was obtained against Joseph Dobson, before a Justice of the Peace, which was stayed by Seth Hyatt; 9n the 4th Dec. 1809, a levy was made and returned to Burke County Court, January Sessions, 1810, upon which a Vend. Ex. issued, and Defendant became the purcha-⅝ ser. Defendant purchased at Sheriff’s sale upon Justice’s judgment before Plaintiff’s ; but the recognizance was entered into and forfeited before the levy under Justice’s judgment.

PlaintifffRtoughf; suit fojr the whole tract; and bn the trial, it was decided by the Court, that he was entitled to recover the wholes and a verdict was returned ac¿ cordingly.

Defendant moved for á new trial, which Was overruled fey the Court, from which he prayed an appeal;

It tyaá contended, on the part of the Defendant, that the lessor of the Plaintiff had legal title to only one-fifth part of the lstfctd in dispute, which he held in common with others, and that he ought to have declared for an imdivided fifth part, arid not for the whole ; consequently the title offered in evidence, did not correspond with the demise laid in the Declaration of Ejectment, and ought hot to have been received in evidence; Plaintiff declared for the whole trabt;

Ruffin, J.

delivered the opinion cf the Court :

The qilestioh tfiade in the case sent tip, does not seeiri id arise upon the facts stated ; for it seems clear that the possession of Dobsoñ and Hyatt, from 1S0Q to July, 1809¿ Under the deed from John Welch, jún. to Dobson, and that Froth D'obion to Hyatt (both of them during that whole period claiming the whole) forms a perfect title in Hyatt, Under the Statute of limitations. It is therefore unnecessary to say, whether úpon a demise of the whole tract laid in the declaration, the Plaintiff could recover an un« divided part-^-because, in this case, the title of Hyatt, under whom the lessor of the Plaintiff claims, appears to fextend to the whole tract. For the same reason, we decline saying ariy thing about the operation of the deeds to John Welch, jun. from his brothers, executed after that from himself to Dobson;

Then as to the other point, made at the bar, thóbgh not stated in the case—whether the recognizance entered into Vy Hyatt, so far binds the land owned by him at the timé of acknowledging the recognizance, as to give that debt a preference to subsequent judgments under which the Sands may be first sold ? Without adverting to the sons of policy which should form the law upon this subject, it is sufficient for us to know that jt has always been thought certain tliat recognizances do bind, as contended for by the Plaintiff.^* The recognizance creates an express, original and specific lien, which attaches to the lands then owned by the conusor j and if the lands be af-terwards conveyed, they pass cum onere. It follows, /rom these considerations, that the rule for a New Trial must be discharged.

* 1 Hayw. Rep. 100.