Den on the Demise of Burton v. Murphey

6 N.C. 339

• Court: Supreme Court of North Carolina
• Decided: July 5, 1818
• Status: Published

Opinion

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.