The appeal here sought to be dismissed on motion, because not authorized by law, is from the action of the court below in refusing to confirm a sale of certain land directed to be sold by the chancery court, and in ordering a resale. The appeal is by the party who made the higher bid for this land at the sale. The right of such a person to appeal must be conferred by some statute. There is no statute expressly conferring the right of appeal in such cases. The right to appeal, if it exists at all, must be found in the statutes — allowing appeals from the chancery courts — authorizing appeals from final decrees or orders. So the determining question presented by the motion is whether the action of the court in refusing to confirm and in ordering a resale is a final decree or order within the statute authorizing appeals from final decrees *Page 344 or orders of the chancery court. The finality vel non of the decree or order is to be determined, as always, by the character of the decree or order, and not by the effect it may have upon the highest bidder at the sale. Appeals are matters of statutory creation; and, if the statutes do not authorize an appeal in a particular instance, the Legislature, and not the courts, is the sole repository of the power to institute changes.
The order from which the present appeal is sought to be taken is purely interlocutory, in no sense final within the statutes authorizing appeals from final orders or final decrees. Bland v. Bowie, 53 Ala. 152, 159, is decisive of the proposition. It was there pertinently pronounced:
"The statutes do not prescribe any time within which a decree of sale rendered by the court of probate shall be executed. In chancery no question can ever arise as to whether a decree of sale loses its energy because of the lapse of time intervening between its rendition and execution. The decree isinterlocutory, and is kept alive by the continuance of the cause. A sale under a decree of the court of probate is a judicial sale. The court is in legal effect the vendor. * * *Until confirmed by the court it is not complete, and confers norights. Rorer on Judicial Sales, 55." (Italics supplied.)
The discriminative text of Rorer, pages 55, 56, cited in the quotation from Bland v. Bowie, aptly supports that pronouncement; and in note 3 to Rorer's text is a strikingly forceful statement of the doctrine set down in Bland v. Bowie, appropriated from Hays' Appeal, 51 Pa. 59. There, as also in Lowe v. Guice, 69 Ala. 82, 83, the substance of the court's pointed declaration is, to quote Lowe v. Guice, that —
"Until confirmed the sale is in fieri — the highest bidder proposes to the court to buy the lands at a specified price, which the court may accept or reject."
Manifestly, the declination of the court to accept the proposal of the highest bidder is not a final order or decree within the statutes authorizing appeals from either chancery or probate courts. A consideration of the cases referred to in the majority opinion will disclose that, in the very few cases where a so-called purchaser "appealed" from the order refusing to confirm and ordering a resale, the attention of the court was not directed, in any degree, to the right of such a person to take an appeal. The conclusion attained on rehearing in Gartman v. Lightner, 160 Ala. 202, 206, et seq., 49 So. 412, involved the right to appeal from an order setting aside a decree of sale, not a declination by the court to confirm a sale, on report, and the ordering of a resale. The only remedy of a so-called purchaser to obtain a review is that pointed in Reed v. Hughes, 192 Ala. 162, 163, 68 So. 334, in which the doctrine of Bland v. Bowie was applied — a doctrine that this court has not, so far as I can find, heretofore consciously qualified, much less repudiated. To affirm, as is now for the first time purposely declared, that a so-called purchaser may appeal from an order refusing to confirm and directing a resale, will operate to practically compel the probate and chancery courts to suspend action, in such cases, for six months (the appeal period) until it is certain the so-called purchaser will not appeal, because no land could be, with advantage, resold if a previous bidder had an existing right to have the refusal to confirm reviewed on appeal. I have no doubt this consideration has been always regarded as of sufficient force to restrain the Legislature from specifically authorizing an appeal in such cases.
I would grant the motion and dismiss the appeal.