Opinion
July Term, 1818.
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 onere.
CASE AGREED. This was an action of ejectment in which the plaintiff deduced title as follows: The land in dispute was granted to Abednego Inman by patent, dated 20 September, 1779, and conveyed by the patentee to John Welch the elder, by deed dated 5 June, 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 21 January, 1800, without any authority from the heirs; Joseph Dobson conveyed part of the land to one Hyatt by deed dated 9 April, 1805. Hyatt at October sessions, 1809, of Burke County Court, entered into a recognizance which he forfeited at January sessions, 1810; a sci. fa. issued thereon to April, 1810, and an alias to July, 1810; these were both returned indorsed that defendant was not to be found in Burke, (340) whereupon there was judgment according to sci. fa.; a fi. fa. then issued regularly from term to term, up to July Term, 1811, at which time the writ was returned satisfied in part, and indorsed, "Land sold to Robert H. Burton." The sheriff's deed to Burton bore date 4 March, 1812.
From Burke.
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 2 December, 1809, James Murphey obtained a judgment before a justice of the peace against Hyatt, and on 4 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 28 April, 1810, the land was sold to Murphey, and on the same day the sheriff executed a deed.
The question made in this case does not seem to arise upon the facts stated, for it seems clear that the possession of Dobson and Hyatt from 1800 to July, 1809, under the deed from Welch to Dobson and that from Dobson 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 part; 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 anything about the operation of the deeds to Joseph Welch, Jr., from his brothers, executed after that from him to Dobson, which have been spoken of.
(341) Then as to another point made at the bar, though not stated in the case: whether the recognizance 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 lands may be first sold. Without adverting to the reasons of policy which should from 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. S. v. Magniss, 2 N.C. 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.