BANK V. THE M'F'G Co.

chaser at execution sale, or the privies of such, but the statute must be given a wider meaning, and if applicable, govern the disposition of funds under control of the Court. There would seem to be no necessity for this enactment, which protects claims for labor done or material supplied, or for torts committed, in presence of that before referred to, which covers all demands for debts and torts, those enumerated in section 685, as well as others.

We are disposed to concur in the view of counsel for the appellant Hall, that the section, so far as it relates to claims for labor performed, or material furnished, pursuing very nearly the words used in $1781, was designed, by its disabling effect, to more effectually secure the liens given by the Constitution to the laborer, (Art. 10, $4,) and the statute extending the lien to materials furnished. But the lien is further extended to torts, and compensation is provided. against any alienation attempted to defeat the claim.

But the statute does not, in our opinion, contemplate a lien security for machinery and other articles purchased abroad in putting up the mill, or facilitating its workings afterwards, when it is apparent, personal credit was alone looked to for payment, and a negotiable security taken. Lanier v. Bell, 81 N. C., 337.

The consequences would be pernicious and destructive of all fair and safe dealings with corporations, if a secret lien founded upon a sale by a distant creditor, of which a person had no information or means of information provided by law, could be set up as paramount to his demand, and unless imperatively demanded, such a construction ought not to be put upon an enactment as will lead to this result.

The referee finds that after paying the preferred debts, to-wit, those contracted previous to April 1st, 1882, and those for labor and material, the assets of the Lawrence Manufacturing Company will be absorbed in, and insufficient to pay the mortgage bonds; and that the assets of the Woodlawn

BAUM V. THE SHOOTING CLUB.

Manufacturing Company, applied to the lien debts as above, and then to the debt due J. W. Fries, will be consumed.

What effect the displacement from the list of preferred claims under the statute will have upon those next in order, under the respective assignments of July, 1882, by both companies, must be ascertained upon a re-reference of the account to be stated upon the basis of this opinion, and it is accordingly again referred to the same referee.

If in the confused and complicated case presented in the record, our general rulings upon the law do not cover all the exceptions, they may be again presented on the coming in of the report, in the same manner as they are now.

We repeat, there are no special exceptions to the rulings of the Judge except as they are involved in those taken to the report, and this is not sanctioned by the practice. This disposes of all the appeals.

Remanded.

JOSEPHUS BAUM et al. v. THE CURRITUCK SHOOTING CLUB.

Possession-Evidence of Pleading.

1. Exercising such a dominion of land, and making that use of it, to which it is capable of being put in its then state, such acts to be so repeated as to show that they are done in the character of owner, is a possession of land, as distinguished from mere trespasses.

2. Where the land in question was directly on the ocean, and had been incapable of cultivation for a long period, and there was evidence that the plaintiffs and those under whom they claimed had cultivated a part of the land as long as it was fit for that purpose, and subsequently had used it in the only way in which it was capable of being used, by grazing cattle on it, and renting it out to shooters; It was held, some evidence of possession to go to the jury.

BAUM V. THE SHOOTING CLUB.

3. In a petition for partition, an allegation that the defendant has an estate in a certain number of acres of said land, is insufficient, as it would indicate that the defendant has a several estate in that number of acres.

(Simpson v. Blount, 3. Dev., 34; Williams v. Buchanan, 1 Ired., 535; Gudger v. Hensley, 82 N. C., 481; Staton v. Mullis, 92 N. C., 623; cited and approved).

CIVIL ACTION, tried before Shepherd, Judge, and a jury, at Fall Term, 1885, of CURRITUCK Superior Court.

This proceeding, instituted in the Superior Court of Currituck county, before the clerk, on the 6th day of September, 1883, upon an allegation of a tenancy in common among the parties, is to have partition of a tract of land, described in the petition as containing two hundred acres more or less, and lying between the waters of Beasley's Bay and the Atlantic Ocean. The allegation is, that the plaintiff Josephus Baum is entitled to one moiety of the land, the defendant company to twenty-five acres thereof, and the plaintiff Edward M. to the remainder.

The answer, denying the other allegations, admits that the said Josephus and the company hold as tenants in common a tract of land adjoining the land of the defendant on the north and south, between the aforesaid waters, which is capable of division, and assents to its being made under the direction of the Court. The issue thus made, was transferred to the Superior Court in term, and put upon the civil issue docket for trial, and is in this form: "Are the plaintiffs, or either of them, tenants in common of the lands described in the complaint, except that part admitted in defendant's answer?" And to this the record states the jury answered "No."

Upon the trial, the plaintiffs introduced a series of deeds, with the will of one Joseph Baum, copies of which are set out as exhibits, and are as follows:

I. From Joseph Gray and wife Mary, made October 24th, 1801, to Thomas White, describing the land conveyed as

BAUM V. THE SHOOTING CLUB.

"containing fifty acres, lying on the said Banks; to be laid off on the north end of a deed given by William C. Dowdy to John Woodhouse, bearing date the 20th day of February, 1745, to be as wide on the Sound side as on the sea-side, so as to include the aforesaid fifty acres.

II. From said Thomas White to Willoughby Dowdy, dated June 7th, 1819, with the same words of description, except substituting the word "sound" in place of the word “said,” immediately preceding "Banks." The latter is obviously a miscopy.

III. From Willoughby Dowdy to Samuel Cooper, executed January 29th, 1840, designating the land as situated on the Banks bounded as follows: on the north by Thomas Poyner's line; on the west by the Bay; on the south by the lands formerly belonging to Thomas Dowdy; thence an east course to the sea; thence along the sea to the first station, containing fifty acres."

IV. From Samuel Cooper to C. T. Chaplain, trustee, dated February 3d, 1840, conveying by a similar description as the preceding deed.

V. From said trustee on January 12th, 1844, to Joseph Baum, the highest bidder at a public sale, with a slight variance in the terms of description, thus: "A certain tract of land on said Banks and marsh, lying at the head of Beasley's Bay, near the sea, joining the sea on the east, joining the lands of Abraham Baum on the south, joining the bay on the west, and joining the land of the Poyners on the north, being one hundred acres more or less."

VI. The will of the last named grantee, dated November 11th, 1880, and duly proved and recorded, in the 5th clause whereof, he devises as follows: "I give and bequeath to my two sons, Jacob and Josephus Baum, all of my lands lying between Beasley's beach and the Old House Creek, together with all my island of marsh, lying to the north of Peter's Creek, to the north end of Hog Island; also one hundred

BAUM V. THE SHOOTING CLUB.

acres of beach land, which I purchased of Caleb Dowdy and Samuel Cooper, a reference to the deeds from said Dowdy and Cooper will more fully appear, it being the land whereon my son Abraham Baum now lives," &c.

VII. A deed from Caleb Dowdy and his mother Sarah, made in 1838, to the aforesaid testator in his life-time, conveying their right, title, and claim, "on the North Banks, between Whale Head and the said Joseph Baum's, beginning on the sea-side, joining Willoughby Dowdy's land; thence binding the said Dowdy's line to Currituck Sound, nearly west course; thence as the sound runs, nearly south, to Elizabeth Dowdy's land; thence nearly east to the sea-side; thence as the sea beach to the first station."

VIII. A deed from the commissioner appointed in a petition of the heirs at law of Jacob Baum for partition and sale of descended lands, to E. M. Baum, conveying an undivided half of several tracts, and among them of the "Cooper tract of fifty acres," and of a tract known as "Sal's Hammock," containing one hundred and seven acres, more or less, lying on the north side of Poyner's Creek, adjoining the lands of the Currituck Shooting Club, Josephus Baum and others, all of the said land being marsh or beach land, in said county of Currituck."

Such was the documentary evidence offered in support of the plaintiffs' title, and the oral testimony in supplement was as follows:

Josephus Baum testified as follows: "I knew Willoughby Dowdy; knew him as long ago as forty years. He lived on the west side of the sound. He never lived on the beach. I knew the boundaries of the Willoughby Dowdy land as described in his deed to Samuel Cooper. I knew that its boundaries embraced the land in the plat. I know where the Thomas Poyner line is, and also where the Thomas Dowdy land is; old persons who are dead have told me where the Poyner line was. It is correct as stated in the plat.