Den on the demise of Burton v. Murphey, 6 N.C. 339, 2 Mur. 339 (1818)

July 1818 · Supreme Court of North Carolina

6 N.C. 339, 2 Mur. 339

Den on the demise of Burton, v. Murphey.

From Burke.,

A recognizance creates an express, original and specific lien, which attaches to the lands then owned by the conusor ; and if the lands-be afterwards conveyed, they pass cum oners.

Cash agreed. — This was an action of ejectment in which the Plaintiff deduced title as follows : the land in dispute was granted to Abedncgo Inman by patent, dated September 20th 1779, and conveyed by the paten-tee to John Welch the elder by deed, dated 5th of Juno, 1784. Welch died intestate between 1784 and 1795, leaving five sons, the youngest of which came of age in 1803. John Welch the younger, became administrator to the estate of John the elder, and conveyed the whole of this land in dispute, to Joseph Dobson by deed, dated January 61, 1800, without any authority from the heirs; Joseph Dobson conveyed part of the land to one Hyatt by deed, dated April 9th, 1805. Hyatt at October sessions 1809, of Burke County Court, entered into a re-cognisance which he forfeited at January sessions 1810; ‘a sti. fa. issued thereon to April 1810, and an alias to Ju]y isio ; these were both returned endorsed that Defendant was not to he found id Burke, whereupon there 1 was judgment according to sa.ja; a Ji.fa. then issued rcgUjai.]y frotn term to term, uji to July Term 18 ¡1, at which time the writ was returned satisfied in part, and endorsed “ land sold to Robert II. Burton.” The Sheriff’s deed to Burton bore date March 4,. 1812.

It was in evidence, that Dobson took possession shortly after the conveyance to him, and that the land did not remain vacant any year until suit brought.

The Defendant took possession in 1810, and deduced title as follows. On the 2d of December 1809, James Murphey obtained a judgment before a Justice of the Peace against Hyatt, and on the 4th of December 1809? a Constable levied on the land in dispute; the execution was returned'to Burke County Court at January Term, 1810, when a ven. ex. issued, under which on the 28th of April 1810, the land was sold to Murphey and on the same day the Sheriff executed a deed.

XtrouiN, Judge,

delivered the opinion of the Court:

The question made in this case does not seem, to arise upon the facts stated, for it seems clear that the possession of Bobson and Hyatt from 1800, to July 1809, under the deed from Welch to Bobson and that from Bobson to Hyatt, (both of them during the whole period claiming the whole) forms a perfect title in Hyatt under the statute of limitations. It therefore is unnecessary to say? whether upon a demise of the whole tract laid in the declaration, the Plaintiff could recover an undivided parí ? because in this case, the title of Hyatt under whom the lessor of the Plaintiff claims, appears to extend to the whole tract. For the same reason, we decline saying any thing about the operation of the deeds to Joseph Welch, Jr. from his brothers, executed after that from him to Bobson, which have been spoken of.

Then as to another point, made at the bar, though not stated in the case; whether the recognisance entered into by Hyatt, so far binds the land owned by him at the time of acknowledging the recognizance, as to give that debt a preference to subsequent judgments under which the binds may be first sold ? Without adverting to the reasons of policy which should form the law on this subject, it is sufficient for us to know, that it has always been thought certain, that recognizances do bind as contended, for by the Plaintiff, (1 Hayw. Rep. 100.) The recognizance creates an express, original, and specific lien, which attaches to the lands then owned by the conusor $ and if the lands be afterwards conveyed, they pass cum onere. It follows from these considerations that the rule for a new trial must be discharged.