SOMEBYILLE, J.
— 1. If the marriage-contract, alleged in the bill to have been executed ante-nuptially between Mrs. Chambliss and Dr. B. S. Wilson, on November 11th, 1861, be satisfactorily proved by the testimony, it created an equitable title in favor of said Wilson, to an undivided one-half of the land in controversy, which he subsequently held as a tenant in common with her, although she was his wife. This was decided on the last appeal of this cause. — Holt v. Wilson, 75 Ala. 58. The complainant shows that he, as the sole surviving heir, is entitled to this interest of his father, if any thing.
2. A strongly controverted issue is the existence of this alleged contract. That a marriage-contract of some kind was executed between the contracting parties, on the day of, and just before the marriage, seems to us to be very certain. This is proved by the witness Elliott, who was present at the ceremony of'the wedding, and by request signed the contract as one of the attesting witnesses; his wife, now deceased, according to his best recollection, being the other witness. He was at the time in the employment of Mrs. Chambliss, supervising her plantation as overseer. It is quite natural that his presence should have been invoked for such a purpose. We see nothing to cast suspicion on his testimony, and there is much in the record, as we shall show, to corroborate the probability of its truth. A more difficult inquiry is as to the certainty of the contents of this agreement. It is proved that, just before this marriage, Dr. Wilson procured a marriage-contract to be drawn up by Col. Troy, then and now a practicing attorney at the Montgomery bar. Tfie contents of this agreement are proved with great precision by Mr. Troy, and he gives reasons for his retentive recollection of its purport, which seem to us very satisfactory. The interest acquired by Dr. Wilson, under this contract, was a contingent remainder in an undivided one-half interest in the estate of David Chambliss, devised by him to his infant grand-daughter, with a remainder to Mrs. Chambliss, his widow, upon a contingency which has since happened. The will of the testator shows the exact nature and quantum of this interest thus bargained for. It was a fact to excite the attention' of any intelligent lawyer, that the bargainee should acquire such a peculiar interest, in view of assuming towards [536] the infant the relation of a step-father. So striking is this feature of the contract, that it is made one of the grounds upon which to assail the validity of the transaction, in the argument of the present case. The only other term of the instrument prepared by Mr. Troy was one easy to be remembered — that in the event of the grand-daughter, Sallie David Chambliss, surviving Dr. Wilson, she should be entitled to share in his estate as one of his heirs. Another cogent fact is stated, which refreshes the witness as to the terms of this agreement. He had occasion, a few years after he had prepared it, to re-draft the substance of it, which he used in a certain cause then pending in the Chancery Court of Montgomery; and that paper was accessible to him, as another most satisfactory mode of strengthening his remembrance of the facts. The only serious question connected with this branch of the case is, whether the instrument prepared by Col. Troy, at the requegt of Dr. Wilson, was the one shown to have been executed in the presence of the witness Elliott.
Supposing that the parties intended to execute such a contract, it is not improbable that the aid of an expert would be invoked to prepare it; that the expected husband, not the wife, would see to its preparation, and that he would have incorporated in it what had already been agreed upon between the parties. There is an extreme absence of all suspicion that this portion of the res gestee attending the transaction was not entirely bona fide, and free from the appearance of any unfair contrivance. It would seem, therefore, not to require the most cogent evidence that the instrument thus carefully prepared was the one actually signed. This evidence is furnished by the coincidence of the entire testimony from beginning to end, and especially by the repeated admissions of Mrs. Chambliss, which are clearly admissible as declarations against interest, if not explanatory of her possession of the property in controversy. — Humes v. O'Bryan, 74 Ala. 64. She is proved to have declared on sundry occasions, during the life of Dr. Wilson, that he had an interest in her estate, lands and slaves, and to have admitted, after his death, that his children would get a part of the property. The decided weight of the testimony is, that this was a half interest — the precise amount covered by the marriage-contract proved to have been prepared by Col. Troy. The credibility of the several witnesses who testify as to these admissions is assailed, as improbable and unworthy of belief, especially of the colored witnesses who were former slaves. It [537] is said not to be credible, that they would remember for fifteen or twenty years declarations of this kind made by their former mistress. It must be remembered, however, that the marriage-contract in question conferred on Dr. Wilson an undivided interest in the slaves of Mrs. Chambliss, as well as in her lands. What is more natural or probable, than that the wife would inform her slaves as to their ownership — who their master was to whom they owed obedience ? Even “the ox,” we are told, “knoweth his owner.” How much more should a reasonable being in lawful bondage, know and remember this fact? There is, to our minds, nothing improbable in the fact that these witnesses should remember with distinctness the announcements made to them by their mistress as to their change of ownership. It was a fact that was likely to deeply impress them, constantly to be meditated on, and not likely ever to be forgotten. We are much impressed with the air of truth which pervades the testimony of these former slaves, and its coincidence with not only intrinsic probability, but, we repeat, with all the facts of this case, from beginning to end.
3. The existence of this marriage-contract, as we have said, created an equity in the lands in controversy, in favor of Dr. Wilson, to the extent of an undivided one-half interest. This title has devolved by inheritance on the complainant, and makes a prima facie case of recovery for him in this suit. To overcome this, the defendants rely on a sale of the lands made by one Noble, as administrator de bonis non, with the will annexed, of the estate of Mrs. Chambliss, on January 8th, 1877, under an order of the Probate Court of Montgomery county. The validity of these proceedings becomes, therefore, of importance.
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SOMEBYILLE, J.
— 1. If the marriage-contract, alleged in the bill to have been executed ante-nuptially between Mrs. Chambliss and Dr. B. S. Wilson, on November 11th, 1861, be satisfactorily proved by the testimony, it created an equitable title in favor of said Wilson, to an undivided one-half of the land in controversy, which he subsequently held as a tenant in common with her, although she was his wife. This was decided on the last appeal of this cause. — Holt v. Wilson, 75 Ala. 58. The complainant shows that he, as the sole surviving heir, is entitled to this interest of his father, if any thing.
2. A strongly controverted issue is the existence of this alleged contract. That a marriage-contract of some kind was executed between the contracting parties, on the day of, and just before the marriage, seems to us to be very certain. This is proved by the witness Elliott, who was present at the ceremony of'the wedding, and by request signed the contract as one of the attesting witnesses; his wife, now deceased, according to his best recollection, being the other witness. He was at the time in the employment of Mrs. Chambliss, supervising her plantation as overseer. It is quite natural that his presence should have been invoked for such a purpose. We see nothing to cast suspicion on his testimony, and there is much in the record, as we shall show, to corroborate the probability of its truth. A more difficult inquiry is as to the certainty of the contents of this agreement. It is proved that, just before this marriage, Dr. Wilson procured a marriage-contract to be drawn up by Col. Troy, then and now a practicing attorney at the Montgomery bar. Tfie contents of this agreement are proved with great precision by Mr. Troy, and he gives reasons for his retentive recollection of its purport, which seem to us very satisfactory. The interest acquired by Dr. Wilson, under this contract, was a contingent remainder in an undivided one-half interest in the estate of David Chambliss, devised by him to his infant grand-daughter, with a remainder to Mrs. Chambliss, his widow, upon a contingency which has since happened. The will of the testator shows the exact nature and quantum of this interest thus bargained for. It was a fact to excite the attention' of any intelligent lawyer, that the bargainee should acquire such a peculiar interest, in view of assuming towards [536] the infant the relation of a step-father. So striking is this feature of the contract, that it is made one of the grounds upon which to assail the validity of the transaction, in the argument of the present case. The only other term of the instrument prepared by Mr. Troy was one easy to be remembered — that in the event of the grand-daughter, Sallie David Chambliss, surviving Dr. Wilson, she should be entitled to share in his estate as one of his heirs. Another cogent fact is stated, which refreshes the witness as to the terms of this agreement. He had occasion, a few years after he had prepared it, to re-draft the substance of it, which he used in a certain cause then pending in the Chancery Court of Montgomery; and that paper was accessible to him, as another most satisfactory mode of strengthening his remembrance of the facts. The only serious question connected with this branch of the case is, whether the instrument prepared by Col. Troy, at the requegt of Dr. Wilson, was the one shown to have been executed in the presence of the witness Elliott.
Supposing that the parties intended to execute such a contract, it is not improbable that the aid of an expert would be invoked to prepare it; that the expected husband, not the wife, would see to its preparation, and that he would have incorporated in it what had already been agreed upon between the parties. There is an extreme absence of all suspicion that this portion of the res gestee attending the transaction was not entirely bona fide, and free from the appearance of any unfair contrivance. It would seem, therefore, not to require the most cogent evidence that the instrument thus carefully prepared was the one actually signed. This evidence is furnished by the coincidence of the entire testimony from beginning to end, and especially by the repeated admissions of Mrs. Chambliss, which are clearly admissible as declarations against interest, if not explanatory of her possession of the property in controversy. — Humes v. O'Bryan, 74 Ala. 64. She is proved to have declared on sundry occasions, during the life of Dr. Wilson, that he had an interest in her estate, lands and slaves, and to have admitted, after his death, that his children would get a part of the property. The decided weight of the testimony is, that this was a half interest — the precise amount covered by the marriage-contract proved to have been prepared by Col. Troy. The credibility of the several witnesses who testify as to these admissions is assailed, as improbable and unworthy of belief, especially of the colored witnesses who were former slaves. It [537] is said not to be credible, that they would remember for fifteen or twenty years declarations of this kind made by their former mistress. It must be remembered, however, that the marriage-contract in question conferred on Dr. Wilson an undivided interest in the slaves of Mrs. Chambliss, as well as in her lands. What is more natural or probable, than that the wife would inform her slaves as to their ownership — who their master was to whom they owed obedience ? Even “the ox,” we are told, “knoweth his owner.” How much more should a reasonable being in lawful bondage, know and remember this fact? There is, to our minds, nothing improbable in the fact that these witnesses should remember with distinctness the announcements made to them by their mistress as to their change of ownership. It was a fact that was likely to deeply impress them, constantly to be meditated on, and not likely ever to be forgotten. We are much impressed with the air of truth which pervades the testimony of these former slaves, and its coincidence with not only intrinsic probability, but, we repeat, with all the facts of this case, from beginning to end.
3. The existence of this marriage-contract, as we have said, created an equity in the lands in controversy, in favor of Dr. Wilson, to the extent of an undivided one-half interest. This title has devolved by inheritance on the complainant, and makes a prima facie case of recovery for him in this suit. To overcome this, the defendants rely on a sale of the lands made by one Noble, as administrator de bonis non, with the will annexed, of the estate of Mrs. Chambliss, on January 8th, 1877, under an order of the Probate Court of Montgomery county. The validity of these proceedings becomes, therefore, of importance.
It is contended that the Probate Court obtained no jurisdiction of the case, and had no authority to sell the lands, because the petition made to that court showed that there was a will made by Mrs. Chambliss, and yet failed to show that no power of sale was given by the will. Is this a jurisdictional allegation in an application made to sell lands for distribution among devisees, the fact appearing in the petition that there is a will? It is admitted that such is the case, where the application is made by an executor- or administrator with the will annexed, to sell lands for the payment of debts. — Bev. Code, 1867, § 2079. Whatever doubt there might be on the subject, were the question a new one, we regard the proposition as settled, that where the will confers a [538] power of sale, the Probate Court has no jurisdiction to order a sale of the lands for distribution among the heirs, any more than for the payment of debts. Such a power of sale, under the statute, passes to an administrator with the will annexed, who is required to execute it. — Rev. Code, § 1609. The will thus became a law to the court, and a limitation upon its jurisdiction. In Brock's Adm'r v. Frank, 51 Ala. 85, decided in 1874, we held this kind of power to be a limitation upon the jurisdiction of the Probate Court; in other words, that the fact in question was a jurisdictional one. “Such jurisdiction,” it was there said, “can only arise when the testator dies intestate as to lands, or when no power of sale is given in the will, and a division among the devisees is necessary.” — See, also, Meadows v. Meadows, 73 Ala. 356; Ala. Con. M. E. Church v. Price, 42 Ala. 49.
4. 'The jurisdiction of the Probate Court, in making such a sale, being.purely statutory and limited, the facts showing the jurisdiction must be stated in the application asking the sale; and so far does this principle prevail, that nothing is presumed to be within the jurisdiction of a court of this Character, except what is expressly alleged and affirmatively appears on the record. — Robertson v. Bradford, 70 Ala. 385, and cases cited. It follows from this principle, that when the petition shows the existence of a will, it should negative the conferring by it of a power to sell; for it is only in the contingency of the non-existence of such power, that the Probate Court has jurisdiction to sell.
The petition filed by Noble, under which the present lands were sold, was fatally defective in failing to contain this jurisdictional averment. The Probate Court, therefore, acquired no jurisdiction to sell, and the attempted sale made under the void order was itself void, conferring no legal title on the purchasers. If the purchasers at this sale got nothing more than an equity, they could transfer no better title than they had acquired, all sub-purchasers being charged with notice of the defect in the Probate Court proceedings, which was matter of public record. Sharpe, for this reason, occupied no better vantage-ground than the Gibsons; and they, at most, acquired only an equity against such of the distributees as received their share of the purchase-money.
5. The complainant was not one of these; and his equity, being first in point of time, would be first in right. It is only the purchaser of a legal title who can claim to be pro[539] tectecl as a bona, fide purchaser for value without notice of prior equities.
It is unnecessary for us to decide the question, as to how far a bona fide purchaser for value of the legal title, acquired at a judicial sale made under an order of the Probate Court, will be protected against secret equities attaching to the title. It may be doubted in such cases, whether the rule of caveat emptor, which applies to judicial sales, will go further than . to cover those defects which may be disclosed by an examination of the chain of title; or, at least, whether it would cover such secret equities as no ordinary diligence could discover. — Code, 1876, §2200; McMillan v. Preston, 58 Ala. 84; Banks v. Ammon, 27 Penn. St. 172; LeNeve v. LeNeve, 2 Lead. Cas. Eq. (3d Amer. Ed.), p. 195; Basset v. Nosworthy, Ib. 69, 72; Ohio L. & T. Co. v. Ledyard, 8 Ala. 873; Freeman on Ex., §336, 509; Rorer on Jud. Sales, §462; Whelan v. McCrary, 64 Ala. 328; Prince v. Prince, 67 Ala. 565; Fore v. McKenzie, 58 Ala. 115; Perkins v. Winter, 7 Ala. 855; Bailey v. Timberlake, 74 Ala. 221, 225.
6. We find nothing in the record which imputes Icoches to the complainant in the commencement of this suit. The testimony shows a remarkable degree of diligence in the prosecution of his rights, and no negligence in the discovery of them. Nor is there any substantial want of correspondence in the allegations and proof on this point. We have held the allegations of the bill sufficient, and the proof is, if any thing, stronger than these allegations, on the question of diligence. — Holt v. Wilson, 75 Ala. 58.
7. It is sought, however, to charge the complainant with notice of the existence of the marriage-contract, by reason of a bill in chancery filed by Mrs. Wilson in February, 1866, to which the complainant was made a party defendant, his co-defendants being his sister Alice, now deceased, and the administrator of Dr. Wilson. Complainant was then a minor, about eleven years of age. He was represented in that suit by a guardian ad litem. His co-defendant set up the' marriage-contract, in a cross-bill against Mrs. Wilson, which was, however, dismissed without prejudice. It may be questioned, whether a minor of such tender years can be charged with notice of a fact in this manner, by stating it in a bill, the allegations of which his guardian ad litem is compelled by law to deny. But the minor was never made, a party to the cross-bill, and the issues growing out of the marriage-contract were never litigated in the suit with any - one, by reason of the [540] dismissal of this cross-bill. On no sound principles, therefore, can it be held that complainant had such notice of this contract as to impute negligence to him for failing to know and pursue his legal rights secured to him under its provisions.
8. It is further argued that the marriage between Dr. Wilson and Mrs. Chambliss was illegal and void, on the ground that he was at the time already a married man, undivorced from a wife then living in Georgia. A full answer to this suggestion is the decree of divorce rendered in Wilson’s favor, by the Chancery Court of Montgomery county, on February 22, 1861, the record of which is introduced in evidence, if that decree be sustained as valid. Its validity is assailed on the ground, that under the provisions of the Constitution of Alabama, then in force, no decree for divorce could have effect until sanctioned by two-thirds of both houses of the General Assembly; it being made by statute the duty of the register in chancery to make out and transmit the record of the suit to the speaker of the house of representatives. — Const. 1819, Art. 1Y, § 13; Code 1852, § 1978. The evidence in this case showing no such legislative sanction, it is claimed that the divorce proceedings are for all purposes ineffectual. ■ This conditional divorce was granted more than twenty years before the commencement of this suit. It is shown that the parties were married in due form, and lived together as husband and wife for many years, until the death of one of the parties. It will be presumed, therefore, in view of this great lapse of time, that the requisite sanction was given by the General Assembly to the decree of divorce granted by the Chancery Court. Almost any reasonable presumption of fact will be conclusively indulged, in order to sustain rights asserted under a decree which is twenty years old. And reasons of public policy especially favor the application of this principle to uphold the validity of marriages. — Matthews v. McDade, 72 Ala. 377; Long v. Parmer, 81 Ala. 384, 388, and cases cited; Bozeman v. Bozeman, 82 Ala. 389; 1 Bish. on Marriage & Divorce, § 13; McCarty v. McCarty, 2 Strob. Law, 6; s. c., 47 Amer. Dec. 565; Carroll v. Carroll, 20 Tex. 731; Dickey v. Vann, 81 Ala. 425.
9. In addition to this, the complainant relied upon the record of a divorce suit obtained against Dr. Wilson, by his first wife, in the State of Georgia, in the year 1859. Whatever force there might otherwise be in the objection that the [541] record of the proceedings shows no service on the defendant, and other like objections, the presumption, after the lapse of twenty years, is in favor of every judicial tribunal acting within its jurisdiction, and that all parties concerned had due notice of its proceedings. — 1 Greenl. Ev. (14th Ed.), §19.
10. It is said that the laws of Georgia prohibited the guilty party from marrying again, and for this reason the marriage of Dr. Wilson in Alabama was illegal. But it is settled in this State, that such a prohibition had no extraterritorial operation, and that, notwithstanding the prohibition, the guilty party would be competent to marry in the State of his or her residence. — Fuller v. Fuller, 40 Ala. 501; Reed v. Hudson, 13 Ala. 570. The act of the General Assembly of Alabama, approved February, 1861, “for the relief of Bobert S. Wilson,” conferred this right, by declaring'him to be “relieved of all the penalties and disabilities which by law attach to persons from or against-whom a divorce had been ordained in any State.” The disability of contracting marriage in Alabama, if it existed, was thus expressly removed by a law, which does not seem to have been obnoxious to any constitutional objection.
11. The identity of name in this act with that of the complainant’s father, who was then a resident of Montgomery county, Alabama, is prima facie evidence of identity of person. Such is the rule, unless a name is shown to be very common in a country, or unless there be other facts which throw confusion on the supposed identity. — Whart. on Ev., § 701.
The other points urged are not, in our judgment, well taken.
The decree of the chancellor, under these views, is erroneous, and will be reversed, and the cause remanded.
Clopton, J. not sitting.