
    The State vs. Emily Winn, et al.
    
    Criminal Law. Recognizance a lien upon real estate. A recognizance to answer a criminal charge, is a lien upon the real estate of the cognizor, from the date of its acknowledgment.
    TROM MONTGOMERY.
    This bill and cross-bill were filed in Chancery at Clarksville. The State recovered a judgment nisi in this Court, at December Term, 1849, on a forfeited recognizance against Thomas Winn, entered into in the Circuit Court of Montgomery, to answer a charge of felony, upon appeal in error to this Court, and Emily Winn security, upon which scire facias issued, and final judgment was rendered at December Term, 1850. Emily Winn, at the time of entering into said recognizance, was possessed of a tract of land, in which she held an equitable estate, by title-bond from the vendor, all the purchase money having at that time been paid except the last note. She sold this land a few months before the December Term, 1850, of this Court, in fraud of the State’s judgment, and this bill was filed in March, 1851, to enforce the State’s lien upon the land. In January, 1851, Kimble and Foster had filed their bill in the same Court, alleging that Emily Winn was indebted to them; that she was then a non-resident; and praying an attachment, which was issued and levied on the land on the 11th of January, 1851.
    Leonidas Leavill, who, as surety on Emily Winn’s bond for injunction against the collection of the last note for said land, had paid the amount of said note, become a party to said suit, and had his lien upon the land decreed by said Court, an order for its sale, and that, out of the proceeds of said sale, his claim be first paid; the Court reserving the question of priority between the State and Kimble and Foster to be determined thereafter. At a subsequent term, the Court, Chancellor Ridley presiding, decreed that Kim-ble and Foster were entitled to priority of payment, and from that decree the State appealed.
    Bailey, and Sneed, Attorney General, for the State.
    Meigs, for Kimble and Foster.
   Caruthers, J,,

delivered the opinion of the Court.

There seems to have been various questions made in this case before the Chancellor, but only one is presented to us in the argument, as decisive of it; and that is, whether a recognizance to appear in a criminal case is a lien upon the land of the cogni-zora. The question comes -up in this way: Mrs. Emily Winn then being the owner of the tract of land in question, entered into a recognizance in the Circuit Court of Montgomery, in the sum of $20,000, for the appearance of her son Thomas at the Supreme Court, upon an appeal from a judgment of conviction of an assault and battery, with intent to commit murder in the first degree. Thomas failed to appear: a forfeiture was taken, and, upon proper proceedings, final judgment for the $20,000 was entered against the parties. Before this, and pending the sci. fa., Kimble and Foster being the creditors of the said Emily, who was then a non-resident, filed their attachment-bill to reach this land. Her title to the land was equitable only. She held by devise from her husband, who held the bond of J. S. Buck for title, upon the payment of the consideration. One payment still remained due. The owner of that claim, it is admitted, is to be first satisfied. Mrs. Winn, before the forfeiture, sold the land; but it is conceded, on all hands, that the sale was fraudulent and not in the way. But the contest is between the State and Kim-ble and Foster, as the land is not sufficient to satisfy both. After the final judgment, the State filed a bill to sell the land; but this was subsequent to the bill of Kimble and Foster. One-half or more of the forfeiture has been released. The land has been sold, and the proceeds, after discharging the vendor’s lien, are to abide the judgment of the Court on the question stated above. The Chancellor held that Kimble and Foster were entitled to priority, and the State appealed.

This decree was right, unless the recognizance was a lien upon the land; and that is the only question. We have no decision on that question in this State. In our mother State of North Carolina, . there are two reported eases upon it.

In the State vs. Magniss, 1 Haywood, 115, in 1794, and in Burton vs. Murphey, 2 Murphey, 339-341, in 1818, the question arose, and was expressly decided in favor of the lien. It is said in the last case, “ It has always been thought certain” that recognizances bind the land. It creates, says the Court, “ an express original and specific lien, which attaches to the land then owned by the conusor; and, if the lands are afterwards conveyed, they pass cum onere

In 2 Greenleaf’s Cruise, vol. iv., 95 marg. p. the law is laid down in the same way. “A recognizance is a lien on all the lands which the cognizor had at the time of its acknowledgment, and also upon all those which he afterwards acquires; so that no alienation” by him will defeat the cognizee. “It is a direct lien upon the lands.” So the law is stated in 2 Bl. Com., 342, (m,) “ from the time of enrollment on record.”

We are disposed to yield to these high authorities; and the more so, as we consider them most in accordance with sound policy, connected with the administration of public justice.

There are discordant opinions and decisions on the point, and some very able judges have announced the opposite conclusion in reported cases, in some of the States; but, to our minds, the weight of authority and argument is in favor of the, lien.

There must then, be a reversal, and a. decree entered here in conformity to this opinion, giving priority to the State.  