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 taken 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's Eq. Jur., 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: Id.; Lench v. Lench, 10 Ves. 511; Boyd v. McLean, 1 Johns. Ch. 582; Botsford v. Burr, 2 Id. 404; Foote v. Colvin, 3 Johns. 216 [3 Am. Dec. 478]; German v. Gabbald, 3 Binn. 302 [5 Am. Dec. 372]. In Lench v. Lench, 10 Ves. 511, the master of the rolls said: "Whatever doubt 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, supra, after a careful review of the authorities and an elaborate examination of the subject.

But the question here 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 we are of opinion that it is not. It was so ruled by Chancellor Kent in the case last cited. He there said: "The cases 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 by the cestui que trust to be clearly proved. In the case 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 circumstances in the case. He thought the evidence too uncertain and dangerous to be depended upon:" 10 Ves. 519.

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 parol can not be set up so as to defeat the legal title of the plaintiff in an action of ejectment at common law, this defense can not 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 those 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 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: Swayze v. Burke, 12 Pet. 11; Gordon v. Kerr, 1 Wash. C. C. 322; and we have no doubt that here 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 the 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 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, adminis trators, etc., " 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 be most advantageous to the sale of the property; provided that real estate and slaves shall be sold at the court-house of the respective counties, unless an order of the court be had to sell at some other place:" 5 Stat. 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 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 day of the same session. The latter act is entitled "An act to regulate sales by judgment or decree of a probate court or court of chancery," was approved on the fourth 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 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 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 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, shall be regulated and governed by the laws governing sales under execution," we must refer for the rule of procedure to the existing laws upon the subject of such sales; and among them we find the act first above cited of the twenty-first 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

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: 1 Kent's Com. 463.

The object of 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 in 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 can not 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: Stone v. Green, 3 Hill (N. Y.), 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's Com. 466, n. b.

Since, then, the act of the twenty-first 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 fourth 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: Hickey v. Stewart, 3 How. 750. Yet it was a fact admissible in evidence, as laying the foundation for 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.

RESULTING TRUSTS-DEFINITION.-There seems to be considerable diversity of opinion among law writers and law lexicographers as to the true definition of a resulting trust, and as to what circumstances create a resulting

trust, some instances being placed under the head of resulting trust by some writers, and the same instances under constructive trusts by others. Mr. Pomeroy, in his work on equity jurisprudence, seems to us to draw the distinction between them most, clearly and logically. He says: "In all species of resulting trusts intention is an essential element, although that intention is never expressed by any words of direct creation. There must be a transfer, and equity infers the intention that the transferee was not to receive and hold the legal title as the beneficial owner, but that a trust was to arise in favor of the party whom equity would regard as the beneficial owner under the circumstances:" 2 Pomeroy's Eq. Jur., sec. 1031. Again he says: "Constructive trusts include all those instances in which a trust is raised by the doctrines of equity for the purpose of working out justice iu the most efficient manner, where there is no intention of the parties to create such a relation, and in most cases contrary to the intention of the one holding the legal title, and where there is no express or implied, written or verbal, declaration of the trust:" Id., sec. 1044. This distinction of intention is recognized by Mr. Story, but he does not state it to be the criterion by which to distinguish resulting from constructive trusts, as he does not discuss trusts under those heads; but that it is, would seem to be implied from his language. He says: "We shall next proceed to the consideration of some of the more usual cases of implied trusts, including therein cases of resulting and constructive trusts. Implied trusts may be divided into two general classes: first, those which stand upon the presumed intention of the parties; secondly, those which are independent of any such intention, and are forced upon the conscience of the party by operation of law:" 2 Story's Eq. Jur., sec. 1195. Following, then, the distinction laid down by Mr. Pomeroy, as we shall in this note, resulting trusts may be defined as those which arise where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears, or is inferred from the terms of the disposition or from the accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title. In such case a trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended, and whom equity deems to be the real owner: 2 Pomeroy's Eq. Jur., sec. 1031. The principle upon which such person is deemed to be the real owner is, that the consideration comes from or belonged to him; the equitable theory of consideration being, that the consideration draws to it the equitable right of property, and that the person from whom the consideration actually comes is the true and beneficial The statute of frauds does not affect the creation of resulting trusts, for since in them the intention is never expressed but always inferred or presumed by law, from the circumstances of the case, it follows, as a matter of course, that there being no evidence of an intention to create a trust, it could not be possible that a declaration of intention, properly executed, would have been made.

owner.

CONSIDERATION PAID BY ONE, AND CONVEYANCE TAKEN IN NAME OF ANOTHER PERSON.-By far the most important class of resulting trusts is where property is purchased and the conveyance of the legal title is taken in the name of one person while the consideration or purchase price is paid by another. In such cases a trust arises at once in favor of the person paying the purchase money and the holder of the legal title becomes a trustee for him: 2 Pomeroy's Eq. Jur., sec. 1037; 1 Perry on Trusts, sec. 126, and cases there cited; 2 Story's Eq. Jur., sec. 1201; Dyer v. Dyer, 2 Cox, 92; Loyd v. Read, 1 P. Wms. 607; Young v. Peachy, 2 Atk. 256; Lehman v. Lewis, 62