Den on the Demise of Burton v. Murphey

• Decision Date: 31 July 1818
• Citation: 6 N.C. 339
• Court: North Carolina Supreme Court
• Parties: DEN ON THE DEMISE OF BURTON v. MURPHEY.

6 N.C. 339

DEN ON THE DEMISE OF BURTON

v.MURPHEY.

SUPREME COURT OF NORTH CAROLINA

JULY TERM, 1818.

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 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 Dob-son 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,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.

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.

RUFFIN, J. 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...