Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 16
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31-32 SUPREME COURT.
Neil v. Keese.
ministering justice according to its own peculiar forms and rules of procedure.
Whatever may be the rights of a pavty recognized by law here, whether equitable
or legal, they may be asserted in our courts without regard to these 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 here
anl 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 tlhe sale at Seguin, yet,
taken in connection with the petition, it is to be considered an order to sell at
that place. It evidently was so understood by the administrator andt so intended
by the Probate Court. The evidence was excluded upon the sole
ground that tlle Probate Court had no authority to order tlhe sale at a place
other than the county seat. It therefore becomes material to determine
whether the Probate Court had 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 coilsent
of the parties interested which will be most advantageous to the sale of
tlhe property: Provided, That real estate and slaves shall be sold at the courthouse
of the respective counties, nilless an order of the court be had to sell at
some other place." (5 Stat., p. 66.)
[32] 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 tlle
court-house of the county. But it is insisted that the provision giving that
authority was virtually repealed by a statute passed at a subsequent (lay of the
same session. The latter act is entitled "'An tact 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 whliclm
relate to sales under execution shall be 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 material, and relating tothe same subject, are to
be taken together and so construed, in referencesto each other, as that, if practicable,
effect may be given to the entire provisions of each. This, it is conceived,
may be 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 slall be regulated Iand governed by the
the laws governing sales under execution," we must refer for the rule of procedure
to the existing 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 tlle authority to order the sale at a place otler than the court-house.
Thus considered, there is no repilgnancy between the provisions of these
statutes. They may stand together, and( effect may be given to the entire provisions
of each. And thus to construe and give effect to them is in accordance
with the established rule of construction. (I Kent Comm., 463.)
16
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/24/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .