The sale of the wards’ property in this case, which is sought to be vacated by motion in the Probate Court, was clearly void for want of jurisdiction, and-being void on its face, could be set aside at a subsequent term of the court.
The Probate Court nan exercise its statutory power of selling real estate belonging to minors only in the following cases, on application of the guardian: (1) Eor the support and education of the ward — Code, 1876, § 2780; (2) for revmestmmt of the *469proceeds — Code, § 2785 ; (3) for distribution among; joint owners — Code, | 3514.
The application for sale which was originally made by the guardian was obviously intended to be made for distribution ■only, under-the provisions of sections 3514 and 3515 of the Code. Such a petition is required to allege that “such property [sought to be sold] corn, not be equitably pa/rtitioned or divided without a sale of the same ” (§ 3515), and this is, under the uniform rulings of this court, a jurisdictional allegation, in the absence of which, at least in substance, the Probate Court possesses no lawful authority to order a sale, and any sale made under such arrogated authority would be absolutely void. The averment of the petition here assailed is as follows: “Your petitioner believes it to be to the interest of said minors that the land of said estate be sold for distribution among the said [minors], or to their guardian for their use, as the lands are not in a state of cultivation, and therefore of no benefit to said minors.” Then follows a description of the lands, and a prayer asking for an order of sale. It needs no argument to show the insufficiency ■of this allegation. It plainly is wide of compliance with the requirement of the statute. The petition of the guardian, •therefore, being fatally defective, the sale in question was void.
The motion to set aside the sale could be made by any person in interest, as distinguished from a mere stranger. It could certainly be instituted by Mrs. Mohon, as the property sold was her statutory separate' estate. — Dryer v. Graham, 58 Ala. 623; Freeman on Ex. § 305.
She was, however, the only party who should have been plaintiff in the motion. It was in the nature of a suit for her undivided interest in the lands which had been sold, and related to the corpus of her separate estate created by statute. In such cases the wife should sue and be sued alone, the husband not being a proper party plaintiff. — Code, 1876, § 2892; Pickens v. Oliver, 29 Ala. 528.
The petition was for the latter reason properly dismissed, there being a misjoinder of parties plaintiff. It was originally instituted in the name of the husband and wife. An amendment was allowed on the trial so as to show that the wife, who was a minor, sued by her next friend, one W. W. Mohon. To the allowance of this amendment, there was, in our judgment, no legal objection, it being fully authorized by the statute. — Berry v. Ferguson, 58 Ala. 314; Fennell v. Tucker, 49 Ala. 453. It is insisted, however, that the husband was a party plaintiff in form merely and not in substance, and as he claimed no relief for himself, but only for the wife, he should have been regarded as her next friend, and that the suit should have been allowed ±o proceed in this form. This, it may be admitted, is some*470times the practice of the chancery courts, and it may be that it would be permissible in a proper case in the probate court. Michan v. Wyatt, 21 Ala. 813; Gerald v. McKenzie, 27 Ala. 166. But in this case, an amendment had already been made introducing the name of a prochein ami, and the reason of the rule invoked could, therefore, in no manner apply.
It is further urged that the petition should not have been dismissed without allowing the petitioner an opportunity to amend. Where there is a demurrer; or direct motion to dismiss for misjoinder or nonjoinder of proper parties plaintiff, it is not required that the court should expressly tender the opportunity of amendment. The right of amendment is a privilege which must be claimed in opportune time, and, in the absence of any motion or suggestion shown by the record to have been made to-this end in the court below, this point can not be raised for the first time in the appellate court. The petitioner should liaverequested permission to amend so as to conform the petition to the requirements of the statute regulating the- matter of parties. — Brock v. S. & N. Ala. R. R. Co., 65 Ala. 79; Bishop v. Wood, 59 Ala. 253, 258.
Affirmed.