* *

1877.

July Term.

Carter's

amount than five hundred dollars, exclusive of costs, unless there be drawn in question a freehold or franchise, or the title or bounds of land, or some matter not merely pecuniary." * Now the only excep- adm'r &c. tion contained in this section limiting the right of ap- Kelly, peal from decrees or judgments of the county court, judge. is that which declares that there shall be no appeal or writ of error to a judgment of a county court, which is rendered on appeal from a judgment of a justice." To all other judgments of such court the right of appeal to the circuit court is secured by these sections; unless such right of appeal is taken away by the fourth section of the act passed April 2nd, 1874, relating to the jurisdiction of the county courts. That act, after enumerating in detail the subjects of jurisdiction of the county courts, contains the following provision: "And exclusive jurisdiction of causes removed from a justice in pursuance of section one, of chapter 147 of said Code, and of contested election cases for county and township officers, &c., * * but with the right of appeal, in all such cases, to the circuit court whose decision shall be final."

*

The first section of ch. 147, referred to in this section, provides, that in every case where the sum or thing in controversy exceeds the amount or value of twenty dollars, the justice shall upon application of the defendant at any time before trial, remove the cause to the court of the county or corporation wherein the same shall be brought, and the clerk of the said court shall docket the same, and it shall be proceeded in as if it were a motion in said court under the 6th section of ch. 163," &c.

It is urged by the counsel for the petitioner here, that the words in the second section of the act of April, 1874, "exclusive jurisdiction of causes removed

1877 from a justice," takes away the right of appeal to the

July Term.

Carter's

V.

Kelly,

circuit court. We cannot give this construction to the statute. That would be to declare that the genadm'r &c. eral law regulating appeals which gives the right of appeal in all cases, from judgments of a county court, judge. except the single case of a judgment rendered on an appeal from a judgment of a justice, was repealed by the words "exclusive jurisdiction," in this act. A statute can only be repealed by express words, or where the latter statute is so inconsistent with the former that both cannot stand together; so as to show a clear intention of the legislature to repeal it. While the words exclusive jurisdiction, are, generally, words of the broadest signification, it is manifest that in the connection in which these words are here used, and upon a comparison of the statutes, they mean exclusive original jurisdiction.

When a case is removed, under the statute, from a justice to the county court, it then stands in the same position in the county court, so far as the right of appeal is concerned, as if the case had been originally brought in the county court.

The court is therefore of opinion, that the circuit court of Scott had jurisdiction to award the supersedeas to the judgment of the county court in the case complained of, and to try and dispose of the same, as an appellate court.

The rule awarded against the Honorable John A. Kelly, judge of said court, must, therefore be discharged.

PROHIBITION REFUSED.

Wytheville.

CARROLL V. Brown.

August 2.

Absent, Anderson, J.

1. A court of equity has jurisdiction of a suit brought by the owner in possession, to set aside a deed which has been put upon record, where. by the complainant's land has been wrongfully conveyed to a purchaser at a tax sale.

In September, 1874, John W. Carroll filed his bill in the circuit court of Patrick county, against Nicholas Brown, to set aside a deed by which the clerk of the county court of Patrick conveyed to Brown one hundred and fifty acres of land sold for delinquent taxes. Brown demurred to the bill and also to an amended bill, and the court sustained the demurrer. And thereupon Carroll applied to a judge of this court for an appeal; which was allowed. The case is stated by Judge Burks in his opinion.

J. E. Penn, for the appellant.

A. M. Lybrook, for the appellee.

BURKS, J., delivered the opinion of the court.

The appellant filed his bill in the circuit court of Patrick county against the appellee to set aside a deed made by the clerk of the county court of said county, conveying to the appellee land claimed by him as a

1877. July Term

Carroll

V.

1877. purchaser at a sheriff's sale of land, returned delinJuly Term. quent for non-payment of taxes. The defendant filed a demurrer and answer to the bill. Upon argument the demurrer was sustained, and the defendant, on libBrown. erty granted for the purpose, filed an amended bill referring to and making the original bill a part thereof, to which the defendant also demurred without answering. By decree of the 4th of November, 1875, this demurrer was also sustained, and the bill of the complainant dismissed. An appeal from this decree allowed the complainant, brings the case here.

The demurrer necessarily admits the truth of the facts stated in the bill, so far as they are relevant and well pleaded.

Whether the facts stated in the bill, thus admitted by the demurrer to be true, entitle the appellant to the relief prayed, is the only question to be now determined.

The two bills considered, as they may be, together, allege, in substance, that the complainant is the owner of two tracts of land in Patrick county, conveyed to him by one Thomas Boyles, by deed dated 2nd June, 1859, recorded in said county on the day of its date, which lands were derived by said Boyles by descent from Lucinda Barker-a copy of which deed is filed as a part of the bill; that a short time after the execution of the deed, the complainant took possession of said lands and has thence hitherto held and still holds such possession; that on the 24th of September, 1860, the sheriff of Patrick county exposed to sale, as delinquent for the non-payment of taxes, several tracts of land, charged in the name of the said Lucinda Barker, amongst which was a tract containing three hundred and sixty acres, at the price of $9.30, as shewn by a copy of the sheriff's official return of sales filed as a

1877.

July

Carroll

V.

part of the bill; that the defendant executed to the sheriff his receipt for the $9.30, the purchase money Term. for the one hundred and fifty acres of land aforesaid, and, in the year 1874, caused the one hundred and fifty acres to be surveyed, and in the same year the Brown. clerk of the county court of Patrick, in accordance with the survey, executed to the defendant a deed for the land so surveyed. Certified copies of the report of the survey and the deed of the clerk are filed as parts of the bill; from which it appears, that the report of the survey was made by the surveyor of Patrick county, was duly certified, examined, and together with the deed duly recorded. The bill further alleges that in laying off the one hundred and fifty acres, the defendant caused the surveyor to locate and survey the same within the boundaries of the two tracts aforesaid belonging to the complainant; that if there was any such tract as the tract aforesaid of three hundred and sixty acres, it was a different tract from those conveyed as aforesaid to the complainant, and the defendant therefore had no right to have the survey and conveyance of said one hundred and fifty acres within the boundaries of complainant's said lands.

The bill further alleges, that the sale by the sheriff under which the defendant claims, was irregular and void, because as shewn by the official return of sales, it does not appear for what year or years the land sold was delinquent.

The prayer of the bill is, that the deed of the clerk to the defendant, Brown, and all proceedings in reference to the sale to him be declared null and void, and for general relief.

These facts, (for such the statements of the bill must be taken to be on demurrer), in my judgment, make a proper case for the exercise by a court of equity of its VOL. XXVIII-100