— There is more of apparent than of real difficulty in determining the character.of the' pleading which is the foundation of the present proceeding. The difficulty arises from the fact, that the pleader seems to have intended it should serve the purposes of a petition, or of an original bill, as the one or the other may by the court be deemed the more appropriate remedy to obtain the relief sought. As a general rule, while the suit is undecided (while it remains in the court, and subject to its control), in which a decree of sale is rendered, an original bill is not the appropriate remedy to impeach and set aside the sale. In that suit, the fairness and regularity of the sale are open to contestation; and before it is perfected by confirmation, in the absence of some peculiar circuriistances, can not be assailed and litigated in a collateral suit. Until confirmation, the sale is not complete — is under the control of the court, which can exercise a sound discretion in regard to it, granting or withholding confirmation, as the rights and interests of the parties, and the ends of justice may require. — Hutton v. Williams, 35 Ala. 503. Any party in interest, or the purchaser, if a stranger, who by his bid becomes a cpuasi party, may move for, or resist confirmation; and it is but seldon there can be either reason or justice for resorting to collateral remedies. The order or decree of confirmation is essentially a judgment; it fixes the rights and liabilities of the purchaser, and operates a divestiture of title. It is an incident of the suit in which the decree of sale is rendered, and ought, in that suit, to be resisted. If there is'no resistance, whatever of injury may result is attributable to a;;waut of diligence, from which courts can not relieve parties. Cases -will and do arise, in which an inequitable or illegal sale may be confirmed, and a want of diligence in resisting confirmation not attributable tó the parties in interest, the court is-not-powerless to relieve them, '• When the suit in which *97tlie decree was rendered is pending and undetermined, after confirmation, whether relief should be sought by petition, or more formally by bill, rests largely in the discretion of the court and depends upon-the particular situation of the case and the relation of the parties to it. “It maybe difficult,” said Chancellor Kent, in Codwise v. Gelston, 10 Johns. *521, “ to draw a precise line between cases in which a party7 may be relieved upon petition, and in which he must apply more formally by bill. Petitions are generally for things which are matters of course, or upon some collateral matter which has reference to a suit in court.” And further, “ the mode of application depends very7 much upon the discretion of the court.” If there be not peculiar circumstances rendering it necessary2, that the proceedings and issues should be put in a more formal and permanent shape, than they could be by petition, -or if petition is not an inadequate remedy7, the court will discountenance a resort to the more dilatory and expensive remedy of an original bill. The question is one largely of mere convenience. — Brown v. Frost, 10 Paige, 243; Tooley v. Kane, Smedes & Marsh. (Ch.) 518 ; Ashbee v. Cowell, Busbee’s Eq. (N. C.) 158; Campbell v. Gardner, 11 N. J. Eq. 423. A suit in equity can rarely be commenced otherwise than by original bill, or a bill in the nature of an original bill; it is only in exceptional cases that a petition is the proper mode of commencing suit. It pertains to and is an incident rather of a pending suit, unless it is addressed to some special authority7 or jurisdiction the court exercises; instances of which are, the appointment of a guardian for an infant, or the allowance of maintenance from his estate. "When the original suit, in which the decrees of- sale and of confirmation were rendered, has been determined finally — no longer remains in the court, and under its control,- — the appropriate remedy to impeach the sale, and to obtain a resale, is by original bill.— Coffey v. Coffey, 16 Ill. 141; Henderson v. Herrod, 23 Miss. 434; McMinn v. Phipps, 3 Sneed (Tenn.), 196 ; Crawford v. Tuller, 35 Mich. 57. In the present case, the original suit had been finally determined, and the institution of a new proceeding was necessary to enable a party aggrieved to obtain relief from the inequitable or illegal execution of the decrees rendered in its progress. The bill is throughout termed an “ application,” and the complainant is termed “ complainant, or petitioner; ” these terms are unimportant in construing the pleading and ascertaining its real 'character. In a court of equity, this is ascertained from a consideration of the matters of substance embodied in the pleading, from its averments, objects and prayer, rather than by the title given by7 the pleader, or by his neglect to entitle it. — Ex parte Smith, 34 Ala. 455. When these are considered, it is obvious the *98present pleading is an original bill, and seems to us the most appropriate proceeding, if not the only proceeding, which could be framed to obtain the relief sought. The more important point of controversy is the validity of the several sales impeached by the bill; the first of which was made by the register, under a decree' of the court ordering a sale; the second was made by the sheriff, under an execution issuing on a- decree for the recovery of a specific sum of money, subsequently rendered in the same suit. These decrees were founded on a decree pro oonfesso taken against the appellant; on a bill filed against him as a non-resident of the State, and of which he had notice only by publication. The object and purpose of that bill was the enforcement of a lien for the payment of the purchase-money on lands situate in this State, the contract of sale having been here made.
The jurisdiction of a court of equity oyer defendants not residing in the State, and consequently not subject to be personally served with process, is statutory and limited. It is not of every case of equitable cognizance against such defendants, that the court may take jurisdiction. The statute defines with precision the cases in which the court may intervene. The object of the suit must concern lands or personal property situate in the State; or the cause of action must have originated here; or performance of the act which is to be compelled, the parties must have contemplated should he here performed. — Code of 1876, § 3753. If the case be not of the character defined in the statute, though it is of undoubted equitable cognizance, the court is without jurisdiction of a defendant not brought in by the personal service of process.— Holman v. Bank of Norfolk, 12 Ala. 369. Glover v. Glover, 16 Ala. 440. The objects and purposes of the original suit, independent of the fact that -the cause of action arose in the State, made a case of which the statute gave the court jurisdiction, though the appellant, the defendant to be affected and bound by the decree, was not a resident of the State.
The statute not only defines the cases in which the court may take jurisdiction of non-resident or absent defendants, but it appoints and orders the mode of proceeding against them, and declares the effect of the decree rendered, if they do not appear and defend. The jurisdiction and authority, like all jurisdiction and authority derived from, and dependent upon statute, must be taken and accepted with all the limitations and restrictions the statute creating it may impose. These restrictions and limitations the courts are bound to-observe; they can not be dispensed with, however much they may seem to emharass, or however unnecessary they may seem to be in the administration of justice in particular cases. The statute is in *99■derogation of the common law, is an essential departure from the forms and modes a court of equity pursues ordinarily, and' must be strictly construed. Proceedings under it must be ■closely watched, or it may become an instrument for the infliction of irreparable wrongs upon defendants to whom notice is imputed by construction. It is not a decree final or conclusive, in the first instance, the court is authorized to render against the absent defendant. The words of the statute are clear and unambiguous: “A decree made against a defendant, without personal service, who does not appear, is not absolute for ■eighteen months from the rendition thereof.” At any time within that period, the defendant may file a petition to set •aside such decree and to defend upon the merits; and upon ■sufficient cause shown, the chancellor has full power to open the decree, -and retry the cause as if the decree had not been rendered. — Code of 1876, §§ 3830-31. Within eighteen months the decree may be rendered absolute by the service of a copy upon the defendant in person, if for six months after •such service he fails to make application to open it, and to be let in to defend. — Code of 1876, § 3835. It is further provided that before “ the execution of such decree, the plaintiff, or party interested, must give bond with two sureties, payable to and approved by the register, in a penalty to be prescribed by the chancellor or such register, conditioned to pay the pecuniary value of the personal property which may be disposed of, or placed beyond the control of the court or party, by the execution of the decree, and interest thereon from the time such property is so disposed of, or placed beyond such •control; and to account for the value, rents and profits of any real estate transferred by the operation of such decree ; and further to abide and perform such, decree as the court may render, if the decree taken on the bill pro confesso is set aside,” ■etc. — Code of 1876, § 3834. The statute forms a system, intended to be entire and complete, touching- the jurisdiction the court may exercise over defendants residing without the State, and in every line manifests care and solicitude to guard and protect their rights and interests.
The first decree rendered in the original suit declared a lien for the payment of the purchase-money, the amount of which had been ascertained by a reference to the register, and ordered] that if, with interest and costs of suit, it was unpaid for thirty days, the register should proceed to sell the lands for the payment thereof. The execution of a statutory bond for the pro.tection of the defendant, if the complainant proceeded to exetion within eighteen months, was not expressly required. The omission does not affect the regularity of the decree, as it *100would have been affected under the former statute. — Holly v. Bass, 63 Ala. 387. The bond is not, however, less an essential now than under the former statute, when it was error to render a decree against a non-resident defendant without expressly requiring that it should be given as a condition precedent to-the execution of the decree before it became absolute. In all the properties of finality and conclusiveness, of which the decree was wanting under the former statute, it is wanting-under the present statute. Whatever may be its form, or terms, the law incorporates these properties into the decree, though it may not express -them; and the condition precedent to execution is impressed upon it, though, if it were not construed, as it must be, in connection with the statute, an immediate, unconditional execution would be authorized. A decree not final or conclusive — contingent, inchoate, incapable of execution except upon conditions; a decree which will become-final and conclusive only after the expiration of eighteen months from its rendition; a decree giving the defendant, for that period, a day in court to open it and defend upon the merits, is the only character of decree the court was authorized to pronounce. — Holly v. Bass, 63 Ala. 387; Lyon v. Robbins, 16 Ill. 276; Southern Bank v. Humphreys, 17 Ib. 227. In form and terms, the decree was final; but, in fact and in law,, it was simply provisional; subject to be set- aside, on an application to the chancellor, showing a meritorious defense, at any time within eighteen months from the'day of its rendition. It bears a close resemblance and analogy to the decree nisi of the English practice, which is rendered “ when a cause is called for hearing, and the defendant does not appear to open his-answer. Upon j>roof of the service of subpoena to hear judgment, the court will enter such decree for the plaintiff as his counsel may desire, accompanying it with a clause to the effect, that it should be binding, unless, being served with process, the defendant shall, within a given time, show cause to the contrary.” — Freeman on Judgments, § 10. Every decree or judgment must be construed in connection with the pleadings on which it may be founded, and in the light-of the law conferring jurisdiction on the court, and authorizing its rendition. Unless we impute to the decree error and irregularity; unless we give to its terms the largest significance of which they are capable, and dissociate them from the pleadings upon which the decree is founded, and from the statute conferring on the court jurisdiction to render any decree, we must read this decree, as if upon its face were written : This decree is not absolute for eighteen months ; and within that period must not be execiotecl, unless the complainant or party interested executes a *101bond payable, approved, and with condition, as-required by the statute.
Within six months after the rendition of the decree ; in less time than it could have become absolute if the defendant had been served personally .with a copy thereof, the register made ¡sale of the lands, reported the sale to the court, and it was confirmed, without the execution of the bond required by the ¡statute. Construing the decree in connection-with the statute, as it must be, and ought to have been construed, it did not authorize the sale; and the sale was in dir.ect violation of the provisions and prohibitions of the'statute. It is not to be ■doubted, that if exceptions had been taken, the chancellor would have refused confirmation, and ordered a resale to be ■conducted in conformity to the statute. Whether the sale and confirmation ought to be pronounced void,.as is earnestly insisted by the counsel for the appellant, is a question not free from difficulty, upon a consideration of which the case does not ■compel us to enter. A sale without a decree to support it is a nullity; and it may be doubted whether a mere general order ■of confirmation can impart validity to it. — Minnesota v. St. Paul, 2 Wall. 640. In this State, confirmation, though essential to complete the sale, and though parties should make timely resistance, or be concluded by it, is not of the dignity and importance which is attached to it in courts of chancery generally. Before report, and before there can be confirmation, the statute requires the register, immediately on-the sale, to convey to the purchaser. — Code of 1876, § 3208. The theory of the statute seems to be, that confirmation shall be ■anticipated, and'shall follow as a matter of course, if there is not litigation of the sale. Courts of equity, after confirmation, upon a proper application, will intervene to set aside sales made by their officers,, or under their process, where such sales are unconscientious, inequitable, or have been conducted in violation of law. — National Bank of Metropolis v. Sprague, 21 N. J. Eq. 458; Mut. Life Ins. Co. v. Sturges, 83 N. J. Eq. 328; Mut. Life Ins. Co. v. Goddard, Ib. 482; Henderson v. Herrod, 23 Miss. 455. The party intervening for relief must ■acquit himself of a want of diligence in resisting confirmation; when he will stand acquitted, depends upon all the circumstances of the particular case. While the court is unwilling that its decree or process shall be employed to work illegality, injustice, or oppression, and willingly intervenes to- rectify a misuse or abuse of either, restoring parties to the condition in which they were before the wrongs occurred, it is only the ■diligent they are active to serve.
It seems impossible fairly and justly to impute to the appellant a want of diligence in resisting the confirmation of the *102sale. Of the suit he had only constructive notice, and the utmost effect which can properly be given to such notice, is, that it shall charge the party only with notice of such proceedings-as are regular and in conformity to law. It would be a harsh rule that would charge a party, drawn into the court only by constructive notice, with knowledge- of irregularities and illegality in the proceedings, though such knowledge could be-fairly imputed to a party who had appeared, or a party who-had the opportunity of appearing by the actual service of process! Conceding t.o the evidence of Hewitt the effect claimed for it by the appellees, it shows only that in 1818, near or quite-two years after the sale and confirmation, the appellant had been informed of the suit and of the sale. There is no room for the inference that he had been informed of the illegality of the sale that the complainant, in violation of the statute, had neglected to give the required bond, without which a valid sale could not be effected. Knowledge of the sale is essentially different from knowledge that it was invalid, and impeachable because invalid. If he had knowledge of the sale, he had a right to presume, and to rest upon the presumption, that the court, its officers, and the complainant for whose benefit the sale was made, had conformed to the statute, from which the proceedings derived whatever of validity can be attached to them.
In Holly y. Bass, supra, we expressed the opinion, that the failure of a complainant or the party interested, obtaining a decree of sale against a non-resident, to execute the statutory bond, if he proceeded to execute the decree before-it became absolute, would “furnish good ground for refusing to confirm the sale, or for setting it aside, if moved for within-a reasonable time.” It may be, the case did not, of necessity,, require an expression of opinion upon this point; but we can perceive no substantial reason for doubting its correctness. The rule is very general, that parties impeaching the validity of judicial sales must move within a reasonable time. — Hubbert v. McCollum, 6 Ala. 225; s. c. 13 Ala. 289; Daniel v. Modawell, 22 Ala. 365; McCaskell v. Lee, 39 Ala. 131. The sale, though inequitable, or illegal, the parties may confirm by actsinpais j and this is especially true when its fruits have enured to the benefit of the party complaining. A confirmation mpais in a court of equity is the equilavent of a judicial confirmation. — Redus v. Hayden, 43 Miss. 614. If with full knowledge of the facts a party should take and hold, or.should claim the fruits of the sale; or if he should acquiesce until subsequent interests are acquired in the lands, and improvements have been made, rendering it difficult to place the purchaser in statu quo, the court will not interfere to vacate the sale. In either of these cases, there is much of reason and justice of an estoppel *103arising from the conduct or- the silence of the party when it was a duty to speak. When there is no more than mere passiveness, mere inaction, and there have been no changes made in the property, and the purchaser at the sale is the party obtaining the decree, the rights and interests of subsequent purchasers not intervening, no,certain time can be stated within which the court can relieve. The interference of the court depends necessarily upon the nature of each case and the circumstances of the parties. — Perry on Trusts, §§ 228-29. If the facts are unknown to the party complaining, or have been concealed, or he has been without the country; the lapse of time, short of the period which will operate a bar under the statute of limitations, is of less importance than when the party is fully informed, and is not under disability, or absent from the State. " The lapse of time relied on as a bar to relief, a little more than five years from the sale, is not available in this case. During four years of the period the appellant resided without the State, had no information that the sale was irregular and illegal; the complainant was the purchaser of the property, has made no improvements, and there is no change in the condition of the property, or in the situation of the parties which will prevent placing them in statu quo, preserving their rights, and doing complete justice between them. — Allore v. Jewell, 94 U. S. 506. ’Nor is it an answer-to the prayer for relief, that the property at the sale commanded its full value, and the proceeds were applied to pay the debt of appellant. Men can not be deprived of their property, even for the payment of just debts, .otherwise than by due process of law; and courts can not take to themselves the power of disposing of lands. The power, when it can be rightfully exercised, is derived from the law ; and if there be not substantial compliance with the law conferring the power, it is of injury to the party who is to be disseized of his freehold. If upon the theory, that no wrong is done by a sale of property in violation of law, when the proceeds of sale are applied to pay a just debt, parties were allowed to wield the process of the courts in their own-favor, exacting' the measure of justice which they claimed, however rightfully, it is manifest oppression and abuse would soon follow, and private rights would be subverted. — Sherman v. Boyce, 15 Johns. 447.
The sale by the sheriff was a mere incident to, and dependency of the sale by the register. In the absence of a statute conferring on the court the jurisdiction, on the foreclosure of a mortgage, or upon the enforcement of the lien of a vendor on lands, a court of equity does not render a decree for any balance of the mortgage debt, or of the purchase-money, which may remain unpaid after a sale under the decree of foreclosure, or under the decree enforcing the lien. — Hunt v. Lewin, 4 Stew. & *104Port. 138; Winston v. Browning, 61 Ala. 80; Orchard v. Hughes, 1 Wall. 73. Tlie statute confers on the court jurisdiction to render such decrees, and to enforce them by execution, only when “ the property ordered to sale shall have been sold, and the sale confirmed, and the balánce due ascertained by the decree of the court.” — Code of 1876, § 3908. ,The balance can not be ascertained, nor the decree rendered, until there has been a sale and confirmation by the court. The rendition of the decree is, of consequence, dependent upon the prior sale and its confirmation. If a stranger, in good faith, should become a purchaser at a sale under execution issuing on the decree rendered upon the confirmation of a sale, which was subsequently vacated, his rignts would probably be protected, as they would be protected,'if he had purchased under process issuing on a judgment or decree which was subsequently reversed. — Marks v. Cowles, 61 Ala. 304. But when, as in the present case, the party obtaining the decree becomes the purchaser, it is of his own election and at his own peril, that he executes the decree ; and the vacation of the prior sale will operate a vacation of the subsequent sale dependent upon it for validity. The same reasons of policy which secure to an innocent purchaser a valid title, do not exist when the party obtaining an erroneous or unjust decree becomes the purchaser; and it would be simple injustice to allow a party, guilty of irregularity or illegality, to* profit by it. The full measure of justice to him is restoration to the condition in which he was when the irregularity occurred. Marks v. Cowles, supra. Subsequent purchasers from him, having notice of the infirmity of his title, are affected by it. There is no doubt that Milner, the purchase)’ from the company, had full notice of all the irregularities attending the sales, and knew the rights of the appellant. Notice to him was notice to his wife, as whose agent or trustee he acted in causing the conveyance to be made to her instead of himself, as was originally intended.
We do not inquire, whether the appellant had an interest in the lands sold under the execution, which was subject to be levied on and sold. The quality of his interest, whether he can ever acquire the legal title, or the terms and conditions upon which he may acquire it, are inquiries which will arise and can be determined properly, only when he may claim specific performance of the contract of purchase. The only relief which can now be afforded him, is a vacation of the sale by the sheriff, which follows from a vacation of the prior sale upon which it was dependent.
The decree of the chancellor must be reversed, and a decree here rendered in conformity to this opinion.