A. J. WALKER, C. J.
This proceeding was initiated by a petition to set aside sales of real and personal property of a testate decedent, and the order under which the same were made, and also the order confirming such sales. [47] The court, after hearing the evidence, dismissed the petition.
1. The correctness of the action of the probate court is maintained upon several grounds. The first is, that the petition itself fails to show that the petitioner is interested in the object of %the petition. The initial sentence of the petition is as follows : “The petition of the Alabama Conference of the Methodist Episcopal Church South, a corporation under the laws of Alabama, respectfully represents,” &e. The allegation of interest is as follows : “Under said will the Alabama Methodist Conference South, meaning and intending thereby your petitioner, the Annual Alabama Conference of the Methodist Church South, is a devisee and legatee of said testator,” &c. Erom these quotations it is perceived that in one part of the petition, the petitioner is called the “Alabama Conference of the Methodist Episcopal Church South,” and in another part, the “Annual Alabama Conference of the Methodist Episcopal Church South.” The petitioner is elsewhere throughout the record, even in the defendant’s demurrer and plea, correctly denominated the “Annual Alabama Conference of the Methodist Episcopal Church South.” We can only get to the conclusion, that the petitioner is not alleged to have an interest in the proceeding by regarding the Alabama Conference of the Methodist Episcopal Church South, as the plaintiff. It is very evident that such designation of the plaintiff at one place in the petition was a clerical error, which was not noticed in the court below, and could have been easily corrected, if it had been observed. Our attention is invited to the fourth assignment of demurrer, as presenting this point of objection to the probate court. The demurrer was overruled. Admitting that the court erred in overruling it, the decree of the court on the merits in favor of the defendant, cannot therefore be affirmed. It would not present the case of a decree right for a different reason from the one stated. Upon sustaining the objection the court would not have rendered a final decree, much less a decree conclusive on the merits, but would have permitted an amendment. The defendant cannot have his decree on the merits sustained [48] upon the ground that the court erroneously ruled against him upon a question not affecting the merits. The court could not render the final decree on the merits, forever concluding the parties upon the ground of the defect in the petition, that defect not being irremediable, and the decree cannot be affirmed on that ground. We are not at all sure that the fourth ground of demurrer raises the question. The demurrer shows at least that it was not designed to present the point. The question is really now presented for the first time. The decisions fully sustain us in refusing to reverse on account of the defect in the petition. Indeed, it is probably our duty to regard it as amended under our statute of jeofails. — Revised Code, § 2810 ; Drummond v. Wright, 1 Ala. 205; McGinty v. Mabry, 23 Ala. 672; Walker v. M. M. D. and Insurance Co., 31 Ala. 529 ; Henley v. Br. Bk. Mobile, 16 Ala. 552.
2. The second ground upon which the appellee maintains his right to an affirmance, is that there is an entire omission of evidence of the corporate capacity of the petioner, and of its competency to take the legacy bequeathed. It must be conceded, that the charter is a private act, of which judicial notice cannot be taken, however familiar with it we may be. — Acts ’51-2, p. 289; Drake v. Flewellen, 33 Ala. 106 ; Revised Code, § 2698. It may also be conceded, that the petitioner had no right to a decree without proof of its corporate capacity, if the issues required such proof. The corporate capacity was proved by the parol evidence of John J. Cassady, and this secondary proof was probably sufficient, when received without objection. — Pearson v. Larrington, 32 Ala. 266. The defendant pleaded sis several pleas, and went to trial upon those pleas. Neither one of those pleas controverted the fact alleged in the petition, that the petitioner was incorporated by the laws of Alabama. Nor was this question of the capacity of the petitioner to take the legacy questioned by either of the pleas. The fourth plea says that the petitioner was not a legal legatee under and by virtue of the will. Aside from the fatal objection to this plea, on account of its mere assertion of a legal conclusion, it refers the absence of a capacity as a legal legatee to the will, and not to the want of an [49] act capacitating the petitioner to take under the will. The question of the petitioner’s capacity to take the legacy under the will was not raised in the court below, and the record discloses, that it was not in the view of the court in deciding the case, and upon the authority of Henley v. Br. Bk. of Mobile, 16 Ala. 552, the defendant must be deemed to have waived the question of the power of the petitioner to take the legacy bequeathed.
3. We now proceed to consider the question of the validity of the orders of sale, and the sales made after such orders. The orders of sale apply both to real estate and personal property. For the obtainment of greater perspicuity we subdivide the question and examine it first in its relation to realty.
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A. J. WALKER, C. J.
This proceeding was initiated by a petition to set aside sales of real and personal property of a testate decedent, and the order under which the same were made, and also the order confirming such sales. [47] The court, after hearing the evidence, dismissed the petition.
1. The correctness of the action of the probate court is maintained upon several grounds. The first is, that the petition itself fails to show that the petitioner is interested in the object of %the petition. The initial sentence of the petition is as follows : “The petition of the Alabama Conference of the Methodist Episcopal Church South, a corporation under the laws of Alabama, respectfully represents,” &e. The allegation of interest is as follows : “Under said will the Alabama Methodist Conference South, meaning and intending thereby your petitioner, the Annual Alabama Conference of the Methodist Church South, is a devisee and legatee of said testator,” &c. Erom these quotations it is perceived that in one part of the petition, the petitioner is called the “Alabama Conference of the Methodist Episcopal Church South,” and in another part, the “Annual Alabama Conference of the Methodist Episcopal Church South.” The petitioner is elsewhere throughout the record, even in the defendant’s demurrer and plea, correctly denominated the “Annual Alabama Conference of the Methodist Episcopal Church South.” We can only get to the conclusion, that the petitioner is not alleged to have an interest in the proceeding by regarding the Alabama Conference of the Methodist Episcopal Church South, as the plaintiff. It is very evident that such designation of the plaintiff at one place in the petition was a clerical error, which was not noticed in the court below, and could have been easily corrected, if it had been observed. Our attention is invited to the fourth assignment of demurrer, as presenting this point of objection to the probate court. The demurrer was overruled. Admitting that the court erred in overruling it, the decree of the court on the merits in favor of the defendant, cannot therefore be affirmed. It would not present the case of a decree right for a different reason from the one stated. Upon sustaining the objection the court would not have rendered a final decree, much less a decree conclusive on the merits, but would have permitted an amendment. The defendant cannot have his decree on the merits sustained [48] upon the ground that the court erroneously ruled against him upon a question not affecting the merits. The court could not render the final decree on the merits, forever concluding the parties upon the ground of the defect in the petition, that defect not being irremediable, and the decree cannot be affirmed on that ground. We are not at all sure that the fourth ground of demurrer raises the question. The demurrer shows at least that it was not designed to present the point. The question is really now presented for the first time. The decisions fully sustain us in refusing to reverse on account of the defect in the petition. Indeed, it is probably our duty to regard it as amended under our statute of jeofails. — Revised Code, § 2810 ; Drummond v. Wright, 1 Ala. 205; McGinty v. Mabry, 23 Ala. 672; Walker v. M. M. D. and Insurance Co., 31 Ala. 529 ; Henley v. Br. Bk. Mobile, 16 Ala. 552.
2. The second ground upon which the appellee maintains his right to an affirmance, is that there is an entire omission of evidence of the corporate capacity of the petioner, and of its competency to take the legacy bequeathed. It must be conceded, that the charter is a private act, of which judicial notice cannot be taken, however familiar with it we may be. — Acts ’51-2, p. 289; Drake v. Flewellen, 33 Ala. 106 ; Revised Code, § 2698. It may also be conceded, that the petitioner had no right to a decree without proof of its corporate capacity, if the issues required such proof. The corporate capacity was proved by the parol evidence of John J. Cassady, and this secondary proof was probably sufficient, when received without objection. — Pearson v. Larrington, 32 Ala. 266. The defendant pleaded sis several pleas, and went to trial upon those pleas. Neither one of those pleas controverted the fact alleged in the petition, that the petitioner was incorporated by the laws of Alabama. Nor was this question of the capacity of the petitioner to take the legacy questioned by either of the pleas. The fourth plea says that the petitioner was not a legal legatee under and by virtue of the will. Aside from the fatal objection to this plea, on account of its mere assertion of a legal conclusion, it refers the absence of a capacity as a legal legatee to the will, and not to the want of an [49] act capacitating the petitioner to take under the will. The question of the petitioner’s capacity to take the legacy under the will was not raised in the court below, and the record discloses, that it was not in the view of the court in deciding the case, and upon the authority of Henley v. Br. Bk. of Mobile, 16 Ala. 552, the defendant must be deemed to have waived the question of the power of the petitioner to take the legacy bequeathed.
3. We now proceed to consider the question of the validity of the orders of sale, and the sales made after such orders. The orders of sale apply both to real estate and personal property. For the obtainment of greater perspicuity we subdivide the question and examine it first in its relation to realty.
1. The order for the sale of the realty purports to have been preceded by a petition of the executor, but does not disclose whether the petition was in writing, or if in writing, what its contents were. The order recites as the reason upon which it is based, that it appeared to the court, that the will directed the property to be sold for certain purposes therein specially mentioned. There is no affidavit, no notice, no evidence, except of the direction of the will. The order of the court is certainly void. It is not only defective in its utter non-conformity to the requisitions of the statutes governing the. exercise of its jurisdiction to order sales of land, and in the want of a petition stating a legal ground of sale, but the reason which it gives, is conclusive against the order. The direction in the will that the land be sold, vests the authority to sell in the executor, and presents a contingency in which there is no authority in the probate court to sell for the purposes of the will. The order shows no want of authority under the will to sell for the payment of debts, and no necessity to sell for a division among devisees, and upon examining the will we find it gives authority to sell for the payment of debts, and no division was required among the devisees. In support of the propositions of the two last preceding sentences we cite the following authorities : — Revised Code of Alabama, §§ 2079, 2221; McCollum v. McCollum, 33 Alabama, 711; Winston v. Jones & High, 6 Alabama, 550. [50] The probate judge refused to set aside the sales upon the ground, that the executors had power to sell bestowed by the will. The validity of the sale is thus referred to the power conferred by the will. The sale can derive no aid from the power, unless it was made under the power. Buies have been established to assist in ascertaining whether a sale is referable to the power, but the law is unvarying and unbending, that no support is- given to a sale by a power when it is plain that the sale was made without reference to the power. — Sugden on Powers, m. p. 424, (top 471) § 20, m. p. 356, § 1, note 1; 2 Sto. Eq. Ju. 895, § 1062a; Doe v. Roake, 2 Bingham, 497-504; Witherill v. Witherill, 6 Har. (Pa.) 265, 270 ; Jones v. Curry, 1 Wilson’s Chan. Cas. 24 S. C.; 1 Lu. Chan. 66; Jones v. Wood, 4 Harris (Pa.), 25, 42 ; Hay v. Mayer, 8 Watts, 203 ; Powell v. Laxdale, 2 B. & Alderson, 291-294; Andrews v. Emmot, 2 Browne’s Chan. 297; Nannock v. Norton, 7 Ves. Jr. 391a ; Bradley v. Wescott, 13 Ves. Jr. 445; Bennet v. Arburrow, 8 Ves. Jr. 609 ; Lowes v. Hackward,, 18 Ves. Jr. 168; Buckland v. Bartow, 2 H. Black. 136 ; Jones v. Tucker, 2 Mer. 532 ; Doe v. Bird, 11 East, 49. In this case, it is demonstrated that the sale was made under the order of the court. The bill, of exceptions shows that such was the case, and then the application to the court for an order and for confirmation after the sale was made, lends confirmation to it. It is apparent that the will was not regarded as bestowing a power of sale. The sale was not made under the power, and derives no support from it. The court should have set aside the sale of the land, the order under which it was made, and the confirmation of the sale.
2. The same conclusion must be attained in reference to the personal property sold. There was no power in the probate court to order the sale, upon the ground stated, and its order is void. The sale was not made in reference to the power bestowed by the will, and can derive no authority from it. — Bevised Code, §§ 2067, 2068.
4. Under the proof, there can be no doubt, that the Annual Alabama Conference of the Methodist Episcopal Church South, took the legacy to the Alabama Methodist Conference South.— Carter v. Balfour, 19 Ala. 814; 2 Story’s [51] Equity Jurisprudence, 1169-1172; 2 Redfield on Wills, 808-836, §§ 62-90.
Beversed and remanded.
Byrd, J., not sitting.