Baum v. Currituck Shooting Club

• Decision Date: 27 May 1887
• Citation: 2 S.E. 673,96 N.C. 310
• Court: North Carolina Supreme Court
• Parties: BAUM and another v. CURRITUCK SHOOTING CLUB.

96 N.C. 310

2 S.E. 673

BAUM and another

v.CURRITUCK SHOOTING CLUB.

Supreme Court of North Carolina.

May 27, 1887.

Appeal from Currituck county.

E. C. Smith, for plaintiffs.

John Gatling and W. D. Pruden, for defendant.

SMITH, C. J.

This proceeding, instituted in the superior court of Currituck, before the clerk, on the sixth 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 200 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 25 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 lands 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, 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: (1) From Joseph Gray and wife, Mary, made October 24, 1801, to Thomas White, describing the land conveyed as “containing fifty acres lying on the said banks, to be laid off on the north end, of a deed given by William O. Dowdy to John Woodhouse, bearing date the twentieth 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.” (2) From said Thomas White to Willoughby Dowdy, dated June 7, 1819, with the same words of description, except substituting the word “sound” in place of the word “said” immediately preceding “banks.” The latter are obvious miscopy. (3) From Willoughby Dowdy to Samuel Cooper, executed January 29, 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.” (4) From Samuel Cooper to C. F. Chaplain, trustee, dated February 3, 1840, conveying by a similar description as the preceding deed. (5) From said trustee on January 12, 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.” (6) The will of the last-named grantor, dated November 11, 1880, and duly proved and recorded, in the fifth 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 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,” etc. (7) 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's Head and the said Joseph Baum's beginning on the sea side, joining Willibra Dowdy's land; therein 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.” (8) 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 50 acres, and of a tract known as “Sal's Hammock,” containing 107 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 the said land being marsh or beach land, in said county of Currituck.

Such was the documentary evidence offered in support of the plaintiff's 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 Thos. Payner line is, and also where the Thos. Dowdy land is. Old persons which are dead have told me where the Poyner line was. It is correct as stated in the plat. I knew the...