The motion to dismiss the appeal in this case is predicated upon two grounds: 1st, that the purchaser of the land was not made a party on the appeal; and, 2d, that the amount of the purchase-money, for which the lands were sold, has been received, and is still held by the appellants, and that they are thereby precluded from the prosecution of an appeal from the order of sale.
The first ground is, we think, untenable. The appeal not being alone from the order of confirmation of the sale, the purchaser would be an improper party, he having no legitimate connection with other matters involved in the litigation; and this brings us to the consideration of the second ground.
*5962. By legislative enactment, based upon a constitutional provision, an appeal lies in all cases like the present, in favor of either party, as “ matter of right.”—Constitution of Ala., Art. 6, § 2; Rev. Code, § 3485. The appeal in the present case was regularly taken; all the requisites of the law to make it valid, and to secure the exercise of the constitutional jurisdiction of this court in revising the action of the court below, having been complied with. Can this court, in such a case, lay the heavy hand of prohibition upon the appellants, and abridge, or deny to them, their constitutional right to be heard on appeal ? That it may under certain circumstances, has been settled by the action of our predecessors, and is, therefore, not now an open question in this State.—Hall v. Hrarbowski, 9 Ala. 248; Bradford v. Bush, 10 Ala. 274; McCreliss v. Hinkle, 17 Ala. 459 ; Knox v. Steele, 18 Ala. 815 ; Tarleton v. Goldthwaite, 23 Ala. 346; Riddle v. Hanna, 25 Ala. 484; Garner v. Prewitt, 32 Ala. 13. It is equally well settled, that the power thus to act is discretionary, “ and rests upon the authority, vested in all courts, to restrain the action of suitors before them, when their acts are oppressive, or vexatious.” This, in our opinion, is a high power, and should only be exercised in a case clearly authorizing it; and whether it should be exercised, or not, in any case, cannot be determined by any general rule, but must depend upon the particular circumstances of the case, in which its exercise is invoked.
In Hall v. Hrabrowski,(the leading case upon the question in this State,) it was held to be both vexatious and oppressive, in the plaintiff below, to prosecute his suit in this court to reverse a judgment, the correctness of which he impliedly affirmed, by coercing payment from the defendant under it. And such was the decision in each of the subsequent cases of Bradford v. Bush, and Knox v. Steele, which involved a similar state of facts.
In the case of McCreliss v. Hinkle, the administrator filed his account and vouchers in the orphans’ court, for a final settlement. On the day of the settlement, the court ascertained to be in the hands of the administrator, subject to distribution, the sum of thirty-four hundred and eleven *597dollars. The administrator then paid to the distributees, respectively, their portions of this sum, and no decree was rendered against him; but he was discharged, and the estate declared to be fully settled. From this decree a writ of error was sued out, and the cause removed into this court. A motion was here made to dismiss the writ, on the ground that the plaintiffs had received payment of the amount ascertained to be due them. Dargan, C. J., in delivering the opinion of the court, referred to, and fully approved, the decisions in the cases of Hall v. Hrabrowski, and Bradford v. Bush; and stated that these decisions would not apply to a case in the orphans’ or chancery court, “ if it plainly appears from the showing or answer of the defendant, that the plaintiff could not recover less than the amount awarded to him by the decree.” It must be noted, that there was nothing in the case, beyond what has been stated above, going to show that the plaintiffs could not recover less on another trial than the amount which had been ascertained to be due them on the settlement ; and the decision upon the motion was manifestly predicated upon the fact, that the payment by the administrator was voluntary ; for the learned chief-justice, in closing his opinion upon that part of the case under consideration, said : “ In this particular case, however, there is no decree in favor of the plaintiffs in error. The decree shows that, on the day of the final settlement, a sum of money was in the hands of the administrator, which he paid over to the plaintiffs; and the decree was then rendered in his favor, by which he was entirely discharged. This is the same, in effect, as if this amount had been paid to the distributees before the day of final settlement; and then on that day there had been nothing found in his hands due to the plaintiffs. We cannot doubt but that we should hear the errors assigned.”
In Tarleton v. Goldthwaite, the first head-note expresses correctly the decision of the court upon the question we considering; it is as follows: “ In chancery cases, when the decree is voluntarily executed by the parties, and the complainant receives the money decreed to him, he may nevertheless prosecute an appeal.” The case of McCreliss *598v. Hinkle, seems to have been the ruling authority upon which the court made this decision.
In Riddle v. Hanna, (25 Ala. 484,) which was a chancery cause, the decree had been “ enforced, on the petition of all the appellants who were of full age and the power of the court in question was properly exercised, on the authority of previous adjudications applicable to such a state of facts.
Garner v. Prewitt, 32 Ala. 13, was peculiar in its facts, as bearing upon the question involved. The bill was filed for the settlement of partnership accounts, and a decree was rendered settling the principles upon which the account between the parties was to be taken, and prescribing the amounts of the great majority of the items on both sides. Upon taking the account, the register found a balance against one of the complainants, of $1,681 50, and against the defendant of $1,718 21. A settlement was then had between the parties,which included a division of the funds and claims in the receiver’s hands; and on the settlement, there were inequalities of a few dollars, which were at once adjusted by payments in cash. The parties subjoined to a statement of the settlement a writing, subscribed by each, acknowledging the receipt from the receiver of the notes whch had been assigned to the parties respectively, on the settlement, and of the amounts of cash which had been allotted to each. The writing further stated, that each of the parties against whom a balance had been found by the register, as above named, had accounted for the same, and that reciprocal discharges therefor were given. It was held by the court, that this settlement, and the consequent agreements, made “ a contract, in which the parties reciprocally received and granted benefits, and executed discharges that it was “ impossible for the appellant, or the court, to restore the appellees to the same situation in which they stood when they were induced to make the settlement with the appellant, by his treatment of the decree as valid and subsistingand that, inasmuch as the adversaries of appellant could not be placed in statu quo, and the court could not perceive that no injury would result to them, it would not permit appellant to allege error in the *599decree thus acted on. Under the peculiar facts of the case, we have no fault to find with the conclusion attained by the court therein.
It will be perceived, that not one. among the various adjudications of this court, above cited, recognizes a voluntary payment, merely, as sufficient to bar the right of the party retaining the payment, to prosecute an appeal as to any matter out of which the payment grew.
We now proceed to a statement and consideration of the facts involved in the present motion. The order of sale required, that the lands should be sold on a credit of one and two years, and that the purchase-money should bear interest from the day of sale. The sale was made on the 17th of November, 1862; and consequently, the first installment of the purchase-money became due on the 17th of November, 1868, and the second installment became due on the 17th of November, 1864. The affidavit of the administrator, submitted with the motion, shows that he received the purchase-money from the purchaser, but does not state when he received it; and the affidavit of the guardian of appellants shows, that he received the distributive share of each of the appellants, as ascertained on the final settlement of the estate by the administrator, of which the purchase-money of the lands was a part. The record shows that the final settlement was made on the 16th September, 1863 ; and that the administrator charged himself, on the settlement, with the full amount of the purchase-money, as having been received by him on the 19th of August, 1863. Thus we ascertain that the purchase-money was paid about three months before the first installment thereof became due, and about fifteen months before the maturity of the, second and last installment. What was the cause of this departure from the usual course, in the payment and receipt of the purchase-money ? Who, in the contemplation of the parties to the transaction, might be benefitted, and who injured, by thus paying and receiving the whole of the purchase-money, in Confederate States currency, in a lump, so long in advance of its maturity ? But we .need not speculate as to this matter. The fact exists, that the purchase-money was not only voluntarily, but sioiftly paid. *600Under these circumstances, can it be said that these minor appellants are guilty of either vexation, or oppression, in the prosecution of their appeal ?
It may be contended, that it is unjust to permit the guardian of appellants to hold on to the proceeds of the sale, while appellants are seeking to reverse the order of sale. But, if this be unjust to any of the parties, to the extent of causing them to suffer, who placed them in the position to suffer from the injustice ? They were not thus placed by any legal coercion, but by their own voluntary acts, which cannot constitute vexation, or oppression, on the part of appellants. In the exercise of a sound discretion, we feel constrained to overrule the motion to dismiss the appeal. The circumstances of the case surely call for the exercise of the discretionary power of the court, in favor of the minor appellants.
3. We next proceed to a consideration of the case on its merits. The statute,under which the application for the order of sale was made, requires that the application should “ describe the lands accurately, and give the names of the heirs, or devisees, and their places of residenceand that it should “ also state, if any, and which of such heirs, or devisees, are under the age of twenty-one years, or married women, or of unsound mind.”—Code, § 1868. The statute of 1822 (Clay’s Digest, 224, § 16) required, in substance, the same statements to be made in such an application, with the exception that it did not require a disclosure therein, as to which of the heirs or devisees, if any, were of “ unsound mind.”
In Griffin’s Heirs v. Griffin’s Executors, (3 Ala. 623,) which was an adjudication upon the act of 1822, it was held, that the explicit declarations of the statute, as to what must be stated in the application, were to be regarded as imperative ; that the jurisdiction of the orphans’ court, in such a case, being founded upon a statute, it was essential to the regularity of its proceedings, that the requirements of the statute should be adhered to ; and it was therefore held, that a petition which did not state the ages of the several heirs, and whether the females were femes covert, was bad on demurrer. In the subsequent case of Cloud and Wife v. *601Barton, (14 Ala. 347,) a similar omission in the application was adjudged insufficient, on error, to sustain the decree of sale. See, also, Blann v. Grant, 6 Ala. 110.
These judicial constructions of the act of 1822 apply with equal force, in the construction of section 1868 of the Code.—See Tillinghast v. Jones, January term, 1867.
The application by the administrator, in the present case, as to a description of the heirs and distributees, is as follows : “ He further alleges, that the following named persons are the only heirs and distributees of said deceased, to-wit: William Hoard, about fourteen years of age, of whom Dr. Knott, of Greene county, Alabama, is legal guardian ; also,Hoard, about years of age, and Hoard, about years of age, of whom C. S. McConnico, of the county of Sumter, State of Alabama, is legal guardian.” Comment is unnecessary to show the manifest failure of the administrator to comply with the indispensable requisites of the statute, under which the proceeding was had, as to a description of the heirs and distributees. And this defect was not, even if it could have been, cured by the subsequent proceedings. The evidence taken ^ to show the necessity of the sale, gives the names of the two heirs, whose Christian names are not stated in the application, as “ Angie” and “ Mollie,” while the decree of sale states their names to be “ Angeline,” and “ Mary.”
Other questions are presented as to the regularity of the proceedings in the court below, which we deem it unnecessary to consider.
The decree of sale is reversed, and the cause remanded.
A. J. WALKER, C. J.I agree that the appeal in this case should not be dismissed. I think there is no inconsistency between the prosecution of the appeal from the decree for the sale of the land, and the retention of the purchase-money. The reason why there is no such inconsistency is, that a reversal of the decree of sale can not affect the title of the purchaser. If the decree of sale is reversed on the ground of a want of jurisdiction, the purchaser had no title to be affected, and he might be ejected *602by action, as well in the absence of reversal, as after its accomplishment. If the decree of sale is reversed on the ground of irregularity not affecting the jurisdiction, then the reversal does not impair or divest the purchaser’s title. Wyman v. Campbell, 6 Porter, 219; Perkins v. Winter, 7 Ala. 855; Evans v. Matthews, 8 Ala. 99.
If I could proceed on the postulate, that the reversal would affect the purchaser’s title, I should hold, that a prosecution of the appeal should not be allowed, without restitution of the purchase-money. The principle upon which appellate tribunals refuse to entertain appeals, unless restitution is made, is strictly analogous to the chancery doctrine, that a party seeking equity must do equity. A party having received money, the retention of which is inconsistent with the reversal of the judgment or decree by virtue of which it was received, can not, standing in that condition, prosecute an appeal. It is inequitable for a party to reverse a judgment or decree while he retains that which he has received by virtue of such judgment or decree,- and to which he is not entitled in the absence fhereof. Upon what principle of justice, could one receive and retain the purchase-money of land, sold under a decree, and, while so retaining, reverse the decree, if the reversal divested the title ; thus retaining the money, upon the ground that there has been a sale, and regaining the land, upon the ground that the sale is avoided ? I regard the authorities as conclusive, that such a thing could not be done. The authorities are the same which are collected in Prewttt v. Garner, 32 Ala. 13, 23.—See Morgan v. Ladd, 2 Gilman, (Ill.) 414; Thomas v. Negus, ib. 700; Atkinson v. Manks, 1 Cowen, 692 ; Camden v. Edie, 1 H. Blacks. 21; Hargraves v. Lewis, 7 Ga. 110 ; Emerick v. Armstrong, 1 Ohio, 233 ; Claves v. Dickinson, 8 Cowen, 328; Carter v. Clark, 3 Edw. Ch. 495; Cannon v. Hemphill, 7 Texas, 184.
The doctrine that an appeal can not be prosecuted without restitution, does not involve the idea of a waiver, or of a denial of appeal. It says, you can not equitably sustain an appeal, unless you make restitution. It does not say, you have waived an appeal, nor that an appeal is denied. It simply says justice and right require the performance of *603a precedent condition, and, until that condition is complied with, an appeal can not be prosecuted. As persons not sui juris are required to do equity before they can obtain relief in chancery, so may they be required to perform an equitable condition precedent to a reversal in their favor. I think the decisions fully sustain this view.—McLeod v. Johnson, 28 Miss. R. 374; Kemp v. Pentard, 32 Miss. 324; DesLondes v. City of N. O., 14 La. An. 552.
What is said in our decisions,as to the prosecution of an appeal by one retaining money paid to him “voluntarily,” is not opposed (in my judgment) to my position. The principle of these decisions is, that when part of a money demand is voluntarily paid, it is a legitimate inference that so much was due ; and there is no inconsistency between a retention of what is thus acknowledged to be due, and the prosecution of an appeal to obtain the balance claimed. Here, there would be an inconsistency between the reversal of the order of sale and the retention of the purchase-money, no matter whether it was paid voluntarily or coercively, if the reversal would defeat the title.
This court speaks of its power to require restitution before it will hear an appeal as “discretionary.” Of course, the court meant a discretion governed by legal principles in furtherance of justice, and not a capricious discretion.
If the infants were prejudiced by the unauthorized or careless reception of the purchase-money by the administrator or guardian, the remedy would be against the tortious trustee, and not by taking the land from the purchaser and retaining in the hands of the guardian the purchase-money.