
    Neil v. Keese.
    Where, upon the sale of lands, the deed is not taken in the name of the person who pays the purchase-money, the trust of the legal estate.results to him; and it is now settled that parol proot of such payment of the purchase-money is admissible against the express declaration of the deed, even after the death of the nominal purchaser. (Note 4.)
    Parol testimony of the declarations of a person since deceased, in whom was the legal title to land in controversy, is incompetent to prove the equitable title to bo in another. (Note5.> Whatever may be t-ho rights of a party recognized by law, whether legal or equitable, they may be asserted in our courts without regard to any distinction between law and equity, or the modes of proceeding in courts of law and courts of equity. It is therefore no objection to an answer in an action of trespass to try title that it asserts an equitable title only. (Note 0.)
    The act of January 21,1841, (Hart. Dig., art. 1057,1 and the act of February 4,1841, (Kart. Dig., art. 1055 ) wore not repugnant to each other, and, when taken together, authorized the Chief Justice to order a sale of real estate and slaves at another place than the county seat. (Note 7.)
    Where there are several statutes upon the same subject, containing no express provisions of repeal the presumption is that they are governed by one spirit and policy and are intended to be consistent and harmonious; and it is the duty of the court, so far as is consistent with the language used, to give effect to that intention. This is most expressly so m respect to statutes passed at the same session.
    A construction which repeals former statutes by implication is not to be favored in any case; the repugnancy must be plain and unavoidable.
    In malting an offer to introduce testimony it is not necessary for the offer to cover the entire issue; it is sufficient if the testimony, being otherwise unobjectionable, conduce to prove a link in the chain of facts which make up the issue, or to lay a foundation for the introduction of other proper evidence.
    Appeal from Gonzales. This suit was brought by the appellee to recover from the appellant certain lots in the town tract of the town of Seguin. The plaintiff claimed title in his intestate, James Campbell, derived from' the former Government through one Branch, a colonist in tiie colony of De Witt, lo whom I he land had been granted. The defendant set up as a defense that he was joint owner with the deceased of the lots in question; that he had himself been tiie former administrator of the deceased, and as such administrator had petitioned the Probate Court and obtained an order of sale to dispose of the interest of tine deceased in tiie lots; and that he sold and conveyed them, including- his own interest, and accounted for the procee.ds of (he interest of the deceased. At the trial, the plaintiff having proved title in his intestate Campbell, a witness was introduced by defendant who testified that the defendant claimed in the lands in controversy a joint interest with the decedent in his lifetime; and that lie liad heard the latter say that the defendant was equally interested with him, which testimony, on motion of tiie plaintiff’s attorney, was excluded by the court. The defendant then proposed to give in evidence a petition "by himself as administrator of the succession of tiie deceased, addressed to the Probate Court of Gonzales county at its June Term, 1841, praying an order of sale to authorize him to sell at Seguin the interest of the intestate in tiie lots, and also the order of the court thereon directing the sale. This evidence the court excluded, and ruled that no evidence was admissible to prove a sale at Seguin, that not being the county seat. To these several rulings the defendant excepted. There was a verdict and judgment thereon for the plaintiff, and the defendant appealed.
    
      V. E. Howard, for appellant.
    I. It was error to rule out the order of the judge of probate directing the sale of the real estate at Seguin. The ruling was made on the ground that the order to sell at a place other than the county seat was void. The only question is, may not the act of January 21, 1841, (vol. 5, p. 06,) and the act of February 4, 18-11, (vol. 5, p. 179,) stand together? because if they can the court will give them that construction. The act regulating sales on execution not only requires that they should be made at the county seat, but gives a great many other directions, such as appraisement, etc. The presumption therefore should bo that in the subsequent act the Legislature did not intend to repeal tha .■act of the 21st of January, but only referred to such other general regulations of execution sales as were not otherwise provided for. It was not intended to say that the parties might not by consent sell property at places other than the county seat. The act directs, however, that the sale of lands and slaves shall he had at the county seat, “ unless an order of the court he had to sell at some other place. ’ ’ This gives the Probate Court the power to order a sale at another place. The adoption of the execution law, therefore, by a subsequent law, can only go to the extent of saying that, when the court does not otherwise order, tlie sale of slaves and lands shall he made at the county seat. Tlie general execution law relates to the acts of the officer in conducting the sale, and not to the powers of the court in ordering it or awarding judgment. The adoption of the execution law, as to tlie manner of conducting sales after judgment, cannot ho so construed as to repeal power or jurisdiction conferred upon a ■court hy a previous act, unless such an intention is plainly indicated in the statute and is a necessary conclusion from its language. It is evident that the last law, which provides for the adoption of the execution law, must he held to he merely cumulative, and certainly not repugnant to the act conferring the jurisdiction. There being no express repeal'and no necessary conflict, both laws may stand together. Repeals by implication are not favored; and as both of these laws were passed at the same session of the Legislature, it should not be held that a repeal was intended when none is expressed, especially in the face of a joint rule of both houses which declared that no law should be repealed at the same session it was passed.
    II. Admitting that the law was repealed, still it does not follow that the ■ order directing the salo tobo had at Segnin was absolutely void. Tlie court had jurisdiction of the subject-matter, power to sell the real estate. An order directing it to be sold at the wrong time or place would be irregular, but not void. Taking jurisdiction of the case was not a usurpation of judicial power; ordering to be sold at Seguin could be only an abuse of an authority in the manner of selling. The court liad a right or power to sell; if it did not ■comply with the law in the manner of executing and confirming the sale, it was an abuse of authority which rendered the judgment voidable, but not void. (10 Pet. R., 473 ; 2 How. U. tí. R., 319.)
    III. Tlie court erred in refusing to allow the defendant to show his equity by parol, whieli may clearly be done in a court’of chancery, and ought, therefore, under our system, to be allowed in this form of action. It has been in ■substance so decided at tlie present term. In Pennsylvania, where they have this mixed system of law and equity, they allow an equitable defense to be set up to an action of ejectment. (2 Greeul. on Ev., 267, note 4, where tlie Pennsylvania cases are referred to; 1 Wash. C. C. R., 322.)
    In this case, if the sale was void, the administrator was bound to return the purchase-money to the purchasers; and as a matter of course, if the sale was void, and he, at the time of the sale, was half owner of the estate, the heir can recover only one-half; and as the purchase-money went to discharge the debts ■of tlie estate, a court of equity would require him to refund tlie amount thus paid for his benefit, with legal interest, before he recovered the land. This ■■shows tlie propriety of tlie evidence and the error of the court in rejecting it.
    Robinson, for appellee.
    I. It is submitted that an equitable title caunot be set up against the legal ■title iu the action of ejectment. Matters of trust and confidence are peculiarly ■cognizable in courts of equity and not in the common-law forum.
    It may well be doubted how far the mere declarations of the intestate, as to the interest of the appellant, can, under any circumstances, pass tlie legal title -jjx> the one-half of tlie lots in question.
    II. It is contended by the appellant that the court erred in excluding the ■order of sale, etc.; but it is respectfully contended for the appellee that the ruling of the court was correct. In the court below counsel relied upon an act of Congress, passed January 21, 1841, (vol. 5, p. 66,) for the authority of' the Court of Probate to order the property to be sold at a place other than the county seat. But it is submitted that this act never went into operation, being superseded by another act of the same Congress, passed February 4,1841, (vol. 5, p. 179.) T’he act of January 21,1841, would have gone into effect forty days after the adjournment; the act of February 4, 1841, went into effect immediately. .Consequently the former never did' go into operation, but was virtually repealed by the latter. The former act never had any legal force; it was not a law when the latter was passed; it was mere legislative will, locked up from the community on which it was proposed eventually to operate; but before the time arrived the law-making power changed in its incipient stage the legislative will, and promulgated its final public will, as made known in the act of February 4,1841. If I am right in these conclusions, it follows that the Probate Court gave an order to sell the decedent’s property in violation of' law; and this fact is apparent upon the face of the record proposed to be given in evidence.
    It is conceded that the Probate Court of Gonzales county was a competent tribunal to judge of facts legally before it ; but the question whether, at the-date of the order of sale of the property in controversy, there was any law authorizing said court to grant permission to the administrator to sell real estate of a decedent at any other place than the county seat, was a question purely of law and not of fact, and when that matter is spread upon the record offered in evidence it may be inquired into collaterally. Consequently this is a case not coming within the purview or meaning of the rules laid down by the elementary writers, and found in the books of reports, that you cannot inquire into the validity of an order, decree, or judgment of a court of competent jurisdiction collaterally when the time has expired for review by appeal or writ of error, because here there is nothing left for presumption iii favor of the validity of the order of the Probate Court; the whole matter is impressed upon (he record. The Probate Court ordered a sale at Seguin, and not at the county seat; and I say there was no warrant of law for this act; it is therefore nuil' and void, and confers no title to the land in controversy. (9 Mo. R., 791; 1 East R., 587; 7 D. & E. R., 451.) On the subject of the construction of statutes the court is referred to the case of Elmendorf v. Taylor, (IS Wheat. R.r 152, found in 6 Pet. Cond. R., 60, and notes on the construction of statutes.)
    III. A sale by an administrator, unless for the purpose of paying debts or to enable him to make distribution, is absolutely void. (Bairn v. McGee, 1 S. & M. R., 208; Kinne’s Law Com. for 1845, p. 3 ; Acts of 1S40, p. 117, sec. 22 ; Id., p. 119, sec. 29; Robb v. Lessee of Irwin, 15 Ohio R., 695.)
    IV. It is clear, upon principle and precedent, that executors and administrators in making sales of property must comply strictly with all the provisions of the statute on the subject. And unless every essential requisite of the statute is complied with, persons whose rights are affected by the sale are not concluded thereby. (7 Mass. R., 488; 4 Johns. Ch. R., 36S; 6 Cow. R., 3S7; 10> Pet. R., 173; Planters’ Bank v. Johnson, 7 S. & M. R., 454.)
    Y. If the order of sale was valid, Neill, the purchaser, was a trustee for the estate of Campbell, and the judgment below was right. It was not competent for the administrator, Neill, to become a purchaser, either directly or indirectly, through a third person. (Michoud and others v. Girod and others, 4 How. U. S. R., 503; 1 White, N. R., p. 185, sec. 6; 4 Cow. R., 682; 2 Kent Comm., 22S, 229, 230; 2 Partd., p. 663, law4; Id., p. 1137, law 18; Fonbl. Eq., 392, aud notes; Id., 446; Kinne’s Law Comp, for 1844, p. 391; Coulson v. Walton et al.. 9 Pet. R., 62; Oliver and others v. Piatt, 3 How. U. S. R., 401; 2 Sug. V., 148; 2 Story Eq., sees. 1258-1265.)
   Wheeler, J.

It is insisted on behalf of the appellee that the court erred—

1st. Ift excluding the evidence offered to prove the defendant's joint interest •with the deceased in the lands in controversy.

2d. In refusing to admit in evidence the petition and order of sale of the-Prohate Court of Gonzales county.

1. The .only evidence offered by the defendant to establish the title asserted, by him was the statement of a single witness that he heard the deceased say that the defendant was jointly interested with him in the lots. It is well settled that where one buys land in the name of another and pays the purchase-money, the land will be held by the grantee in trust for him who pays the money. “The clear result of all the cases, without a single exception, (says Story,) is that the trust of the legal estate — whether freehold, copyhold, or leasehold; whether talcen in the name of the purchaser and others jointly, or in the name of others without the purchaser; whether in one name or several; whether jointly or successively — results to the man who advanced the purchase-money. This is the general proposition supported by all the cases.” (2 Story Eq., sec. 1201, n. 2, a.)

Whether after the death of the nominal purchaser parol evidence alone is-admissible to establish the trust against the express declaration of the deed, has been a subject of controversy, but it is now settled that such proof is admissible. (Ib., 10 Ves. R., 611; 1 Johns. Ch. R., 582; 2 Id., 404; 3 Johns. R., 216; 3 Binn. R., 302.) In Lench v. Lench, (1 Ves. R.. 511,) the master of the rolls said: “Whatever cjoubt may have been formerly entertained upon this subject, it is now settled that money may in this manner be followed into-the land in which it is invested, and a claim of this sort may be supported by parol evidence.” The same doctrine was maintained by Chancellor Kent, in Boyd v. McLean, after a careful review of the authorities and an elaborate examination of the subject. (1 Johns. Ch. R., 582.)

But the question hero is not simply whether parol evidence is admissible, but whether the naked declaration of the deceased, of itself and without proof' of the payment of the purchase-money. is sufficient to establish title in the defendant. And wo are of opinion that it is not. It was so ruled by Chancellor Kent iu the case last cited. lie there said : “The eases uniformly show that the courts have been deeply impressed with the danger of this kind of proof' as tending to perjury and the insecurity of paper title, and they have required the payment of the cestui que trust to be clearly proved. In the ease of Lench v. Lench, Sir William Grant did not deem the unassisted oath of a single witness to the mere naked declaration of the trustee admitting the trust as sufficient; and there were no corroborating eireumsfancesin the ease. He thought the evidence too uncertain and dangerous to be depended upon.” (Id., 590.)

Here there was but the oath of a single witness to the naked declaration of' the deceased that the defendant was jointly interested with him in the land; and we are of opinion that this was not competent evidence to establish title in the defendant, and that therefore it was rightly excluded.

It is insisted by the appellee that, as matters of trust are peculiarly cognizable-in a court of equity, and as a mere equitable defense resting in a parol cannot be set up so as to defeat the legal title of the plaintiff in an action of ejectment at common law, this defense cannot be set up in the present case, though supported by competent evidence. We think otherwise. In our own jurisprudence there is no division of jurisdiction into common law and chancery. We have not two rules by which to administer justice in the same case, nor two-modes of applying the rule to the same rights, attaining different results. But the same rule and measure of justice are applied to the same rights whenever drawn in litigation, administered according to the principles of that forum by which may be most effectually attained the equity as well as the law of the particular case. Our courts are not restricted by the rules which limit and define the jurisdiction of courts of common law and chancery in England and' these States whose laws recognize two separate jurisdictions, each administering justice according to its own peculiar forms and rules of procedure. Whatever 'may be the rights of a party recognized by law here, whether equitable or legal, they may be asserted in our courts without regard to those distinctions.

In Pennsylvania it is held that, as there is no court of chancery, an equitable title may be interposed to the plaintiff’s right to recover in an action of ejectment, (12 Pet. R., 11; 1 Wash. C. C. R., 322;) and we have no doubt that iiere an equitable title may be interposed to the plaintiff’s right to recover in an action like the present.

2. The petition of the administrator for the sale of the lands in question and the order of the Probate Court thereon bear date in June, 1841. The petition asked an order to sell at Seguin, a place other than the county seat; and although the order does not in express terms direct the sale at Seguin, yet, taken in connection with tire petition, it is to be considered an order to sell at that place. It evidently was so understood by the administrator and so intended by the Probate' Court. The evidence was excluded upon the sole ground that the Probate Court had no authority to order the sale at a place other than the county seat. It therefore becomes material to determine whether the Probate Court iiad authority to make the order in question.

The act upon which the appellant relies to support the authority of the Probate Court to order the sale at Seguin is “an act to regulate public sales,” approved January 21, 1841, which provides that all sales by sheriffs, constables, administrators, &c., “may be held at the residence of the owner of the property or at the late residence of a deceased person, or at any other place by consent of the parties interested which will he most advantageous to the sale of (he property: Provided, That real estate and slaves shall be sold at the courthouse of tlie respective counties, unless an order of the court be had to sell at some other place.” (5 Stat., p. 66.)

This statute, by clear and necessary intendment, gives to the Probate •Court the authority to order a sale of lands and slaves elsewhere than at the conrt-liouse of the county. But it is insisted that the provision giving that .authority was virtually repealed by a statute passed at a subsequent day of the same session. The latter act is entitled “An act to regulate sales by judgment •or decree of a Probate Court or a court of chancery,” was approved on the 4th •day of February, 1841, and enacts “ that all sales, whether by order, judgment, •or" decree of any Probate Court or court of chancery, shall be regulated and .governed by the laws governing sales under execution; and all laws which relate to sales under execution shall he applicable to such sales as above stated, .and that this act shall take effect and be in force from and after its passage.” (5 Stat., 179.)

These statutes, being in pari materia, and relating to the same subject, are to be taken together and so construed, in reference to each other, as that, if practicable, effect may be given to the entire provisions of each. This, it is conceived, may he done by considering the former, as it evidently was intended, as a law “ governing sales under execution.” It is to be considered as if incorporated with and as constituting a part of the laws enacted upon that subject. When, therefore, the latter statute declares that “all sales by order of any Probate Court or court of chancery shall be regulated and governed by the the laws governing sales under execution,” we must refer for the rule of pro■cedure to the existing laws upon the subject of such sales; and among them we find the act first above cited of the 21st of January, 1841, which gives to •the court the authority to order the sale at a place other than the court-house.

Thus considered, there is no repugnancy between the provisions of these statutes. They may stand together, and effect may he given to the entire provisions of each'. And thus to'constrne and give effect to them is in accordance •with the established rule of construction. (1 Kent Comm., 463.)

Note 4. — McCoy v. Crawford, 9 T., 353; McAlister v. Farley et al., 39 T., 552. Parol evidence is .admissible to establish a trust. (Mead v. Randolph, 8 T.,19L; Miller v Thatcher. 9 T.,482; Me- ’ Clennyu. Floyd, 10 T., 159; Vandeverv. Freeman,20 T., 333; Cuneyu Dupree, 21 T., 211; Grooms •V. Rent, 27 T., 231; Ruffierv. Womack, 30 T., 332; Gibbs v. Penny, 43 T., 560.)

Note 5. — Miller v. Thatcher, 9 T, 482; Hodges v. Johnson, 15 T., 572.

Note 6. — Easterbury v. Blythe, 7 T., 210; Miller v. Alexander, S T., 36; Wright v. Thompson, .14 T., 501; Scarborough v. Arrant, 25 T., 129; Viser v. Rice, 33 T., 139; Walker v. Howard, 34 T., 478.

Note 7. — -Jamison u. Gaston, 21T., 266.

The object oí the rule is to ascertain and carry into effect the intention of ■the Legislature, and it proceeds upon the supposition that the several statutes ■relating to one subject were governed by one spirit and policy, and were intended' to be consistent and harmonious iu their several parts and provisions. It would not be a reasonable mode of construing the acts of the Legislature so to construe them as to make one act repeal another passed at the ■same session. It cannot be supposed that it was their intention that acts ■thus passed should abrogate and repeal one another. A construction which repeals former statutes and laws by implication is not to be favored in any •case. (3 Hill (N. Y.) R., 472.) Statutes are not considered to be repealed by implication unless the repugnancy between the new provision and the former ■statute be plain and unavoidable. (1 Kent Comm., 466, n. b.)

Since, then, the act of the 21st of January, conferring upon the Probate ■Court the authority to order a sale of lands elsewhere than at the court-house, ■was not repealed by the subsequent act of the 4th of February, there can be no doubt of the validity of the order to sell at Seguin.

The order did not of itself amount to proof of a sale. The mere order of ■sale without proof also of a legal and valid sale under it could not divest the title of those claiming under the deceased; nor could it of itself afford any ■evidence that the title had passed out of his representatives. (3 How. R., 750.) Yet it was a fact admissible in evidence as laying the foundation for the introduction of other evidence of the alleged sale. But the ruling of the court in excluding it effectually precluded the defendant from introducing such other ■evidence as he may have had it in his power to adduce to establish the fact of ■ a sale. The evidence offered, though it did not amount to proof of the fact, was still a necessary ingredient in that proof. It constituted an indispensable link in the chain of evidence, and the court erred in excluding it; for which the judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed.  