A. J. 'WALKER, 0. <7.
It is contended, that this suit was not brought in the names of the proper parties plaintiff. The objections are, that the exclusive right of action was in the commissioners, who sold the land; that if the married woman who is a plaintiff, was a proper party, her husband should have been joined with her; and that a guardian, in such a case, has no right of action in his own name, for the use of his wards.
[1.] The legal title to the lands sold was in the plaintiffs. The proceeds of the sale would have belonged to them. By the purchaser’s failure to comply with his contract, the plaintiffs were injured, and any damages recovered for such failure must necessarily be their property. The plaintiffs are, therefore, literally within the principle, that an action to recover damages “ must, in general, be brought in the name ol the person whose legal right has been affected.” — 1 Chitty on Pleading, 60. If the commissioners who made the sale have, by way of exception to the general rule, power to sue, it does not militate against the right of the present plaintiffs to bring suit. There would simply be a right of action, either in the commissioners, or in the plaintiffs. The point is so ruled in Robinson v. Garth, (6 Ala. 204,) and we entertain no doubt of the correctness of the decision on that point. There was a right of action in the owners of the land offered for sale, notwithstanding the sale may have been made through the agency of commissioners appointed by the probate -court.
[2.] The feme covert who was one of the owners of the land, was the sole party having a right of suit, so far as her interest was concerned. Her share in the recovery which may be had, will belong to the corpus, and not to the income or profits of her separate estate. The decisions in Pickens and Wife v. Oliver, (29 Ala. 528,) and McConeghy v. McCaw, (31 Ala. 447,) place such a construction upon section 2131 of the Code, as makes the *513wife, without her husband, the proper plaintiff in such a case, notwithstanding there may be incidental damages, which will go to the husband.
[3.] The suing by the guardian, in his own name, for the use of his wards, is at least authorized by section 2036 of the -Code, vdiich says, “ guardians may sue in their own names, for the use of the ward, in all cases where the ward has an interest, and the judgment inures to his benefit.”
[4.] The next ground of demurrer, pressed upon our attention by the counsel for the appellant, is, that the complaint claims as damages the excess of the defendant’s bid above the price at the second sale. The decisions of this court establish the principle, that when the right to resell, at the risk of one who may fail to comply with his contract of purchase, is either an express or implied condition of the sale, the difference between the greater price bid at the first sale, and the less price at which the second sale was made, is in the nature of damages stipulated by the parties. — Lamkin v. Crawford, 8 Ala. 153 ; Adams v. McMillan, 7 Porter, 73; School Commissioners v. Aiken, 5 Porter, 169. The right to resell, at the risk of the purchaser failing to comply with his contract, is held in Lamkin v. Crawford, (supra,) to be an implied condition of the sale, where it is made by official persons ; and, while that decision is made directly in reference to a marshal’s sale, the sale by school commissioners, mentioned in the case above cited from 5th Porter, is referred to as one to which the decision would apply. The land in this case was sold by commissioners, appointed under the act approved Eeb. 5, 1856. — Pamphlet Acts, 1855-6, page 20. Commissioners, appointed by authority of that act, are, pro hac vice, officers of the court, and act under its mandate in the accomplishment-of a judicial sale. Such a sale bears a close analogy to sales made under a decree of the chancery court, through the register, and it falls precisely within the principle above stated, which is announced in Lamkin v. Crawford, supra. We decide, therefore, that the complaint is not faulty, on account of *514its claiming the difference between the first and second sales, as stipulated damages.
[5.] The seventh ground of demurrer — that the complaint does not show a tender to the defendant of a bond or certificate of purchase — was not well taken. The law under which the commissioners acted, does not make it their duty to give such bonder certificate.
Finding none of the grounds of demurrer to the complaint well taken, we decide that there was no error in overruling it.
[6.] The court below overruled the demurrer to the plaintiffs’ second replication to the plea of the statute of frauds. The substance of the second replication, which was thus sustained, is, that the commissioners employed one who was not a licensed auctioneer to cry the sale, and that as soon as the land was bid off by the defendant, one of the commissioners made a note or memorandum thereof in writing, in conformity with section 1552 of the Code. The sufficiency of this replication, and the correctness of the ruling of the court upon the demurrer to it, depend upon the question, whether a memorandum of one of the commissioners takes the contract out of the statute of frauds.
Section 1551 of the Code specifies five classes of agreements, every one of which, it declares, is void, unless the “agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing.” The fifth of those classes is described as follows: “Every contract for the sale of lands, tenements, or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase-money, or a portion thereof, be paid, and the purchaser be put in possession of the land of the seller.” Section 1552 prescribes, that if the sale is at public auction, and “the auctioneer, his clerk, or agent, makes a memorandum of the property, and the price at which it is sold or leased, the terms of the sale, the name of the purchaser or lessee, and the name of the person on whose account the sale or lease is *515made, such memorandum is a note of the contract, within the meaning of the preceding section.” The replication does not aver, that the commissioner who made the memoi’andum was thereunto lawfully authorized, in writing, by the purchaser; and the memorandum is, therefore, not conformable to the requisition of section 1551 of the Code.
In Ledbetter v. Walker, (31 Ala. 175,) it was decided, that a verbal authority was sufficient to authorize an agent to sell land; but the sale in that case was made before the Code weut into operation. There are authorities which hold, that one standing in the attitude of the commissioners appointed to make the sale now before us is the'agent of the purchaser ; and that a memorandum, made by such agent, would bo a compliance with the statute of frauds. Wolfe v. Sharp, 10 Rich. 60. But the concession, that the commissioner who made the memorandum in this case was the agent of the purchaser, is not enough. Under our statute, ho must not only be the purchaser’s agent, but he must be thereto authorized in writing.
If the plaintiffs’ replication can be maintained at all, it must be upon the ground, that the commissioner was the auctioneer, and, as such, was authorized by section 1552 to make the memorandum. Whether or not he was th(/auctioneer, depends upon the question, whether the auctioneer is he who cries the sale, or the seller who employs him to cry the sale. The case of Wolfe v. Sharp, (10 Rich. Law, 60,) cited by the appellees, merely asserts, that the commissioner in equity was the agent of both parties. Neither that case, nor the case of Gordon v. Sims, (2 McCord’s Ch. 151,) to which it refers, asserts that the commissioner in equity is an auctioneer, when he employs the agency of another to conduct the sale. Endicott v. Penny, 14 S. & M. 144 ; Brown on the Statute of Frauds, § 369. The auctioneer is the agent both of the seller and of the purchaser. This being the ease, it would seem impossible that one appointed by the court to sell propert}7 can be the auctioneer, when he employs the agency of another to auction off the property for him. If a person so appointed could, under such circumstances, *516be considered the auctioneer, then every owner of property, who employed another to sell it to the highest bidder, would be the auctioneer. We do not think the word can be so understood, without a departure from its true meaning and common acceptation.
A professional auctioneer, pursuing the business of selling at auction for others, notwithstanding be might employ another to cry the sale for him, would doubtless be an auctioneer, within the meaning of section 1552 of the Code. But he stands in quite a different relation to the purchaser, from that in which the commissioners in this case stood. The auctioneer by occupation, who employs another to cry the sale, is an auctioneer still; and the purchaser may be regarded,by bidding at a sale made by him in his capacity of auctioneer, through the instrumentality of a crier, as constituting him an agent, under the section above stated, to bind him by a memorandum of the sale. The same thing cannot be said of a commissioner appointed to sell, who employs an auctioneer. — Emerson v. Heelis, 2 Taunt. 38.
We decide, therefore, that the commissioner who made the memorandum, was not an auctioneer, within the meaning of section 1562 of the Code ; and the defendant’s demurrer should have been sustained to the plaintiffs’ second replication, if the plea of the statute of frauds is available in the case.
The replication does not allege, that the commissioner who made the memorandum, was the clerk or agent of the auctioneer; and therefore the question, whether the memorandum would have been sufficient, if made by the agent or clerk of the auctioneer, does not arise in the case.
[7-8.] The counsel for the appellees contends, that the statute of frauds is not applicable to judicial sales, which are to he reported to the court that orders the sale, and are then to be confirmed or set aside. This precise point seems never before to have been brought under the consideration of this court. Sales by sheriffs, school commissioners, and an executor under a power conferred by will, none of which are reported for confirmation, have *517all been decided in this State to be within the statute of frauds. — Carmack v. Masterson, 3 St. & P. 411; Adams v. McMillan, 7 Porter, 73; Robinson v. Garth, 6 Ala. 204; Bell v. Owen, 8 Ala. 212. But those were not judicial sales. In the case of Smith v. Arnold, (5 Mason, 420,) Judge Story describes a judicial sale as one made by order of the court, and subject to its confirmation. An example of a judicial sale given is a sale by the chancery court, through its register or master. A distinction is drawn in that ease, between a judicial sale, anda sale by an administrator in Rhode Island, where the court simply orders the sale, and in doing so exhausts its power over the subject, except to hold the administrator accountable for the proceeds of the sale. Sales of land under an order of the probate court, by an executor or administrator, are, under our law, within this description of judicial sales. Such sales are required to be reported to the court, which then confirms or sets them aside; and not until the confirmation can the purchaser acquire a complete title. Code, §§ 1765-1770. In reference to sales made under the statute which existed before the adoption of the Code, and which was not materially different from the provisions of the Code on the same subject, it was decided, that the sale was, in legal effect, made by the court itself. Perkins v. Winter, 7 Ala. 855, 871; Wallace v. Hall, 19 Ala. 367.
The act under which the sale was made, (Pamphlet Acts 1855-56, p. 20,) does not in terms require, that the sale made under its authority should be reported to the probate court for confirmation. It requires, however, that the sale should “ be conducted in all respects as is done when property in the hands of an executor or administrator is to be distributed.” Now, real estate is, perhaps, in strict correctness of language, never “in the hands of an executor or administrator to be distributed;” but it requires no very great latitude of construction to infer, that the legislature, in framing this law, regarded land to be sold by an executor or administrator for division as property to be distributed, and designed that the sale of land under the act of 1856 should be conducted in *518all respects as sales of land ordered to be sold by an executor or administrator for division. We think that the act of 1856 must be regarded as directing the sale of land or personal property, in the same manner as the same species of property is by the Code required to be sold by an executor or administrator for division or distribution. This conclusion is fortified by the consideration, that the commissioners who make the sale do not act under the obligation of an oath, nor do they give security for the faithful discharge of their duties ; and it is not probable that the legislature intended, that commissioners so acting should make a final sale, without the approval of the court which appointed them. Besides this, a farther argument in favor of our conclusion may be drawn from the analogy of the proceeding under the act of 1856 to kindred proceedings in chancery, where all sales are reported to the chancellor for confirmation. In determining the mode of proceeding in the probate court, when it exercises a jurisdiction which originally pertained to the chancery court, it is proper to look to the established practice of the latter. — King v. Collins, 21 Ala. 363.
From the conclusion that the law required a report of the sale in this case to the probate court for its confirmation, it necessarily follows, that the sale was a judicial sale, under the definition given by Judge Story. It remains to be decided, whether, being a judicial sale, it is without the operation of the statute of frauds.
Lord Hardwicke’s decision, in the Attorney-General v. Day, (1 Vesey, sr. 218,) seems to be the first reported adjudication upon the subject, and is the foundation of all the subsequent cases. That decision seems to have been made in reference to a contract to purchase land, made by the master, under an order of the court, for the purpose of investing a charity fund. The agreement to purchase was reported, and the report was confirmed; and the question was as to the’execution of the agreement. The lord chancellor said: “ But the present is a judicial sale of the estate, which takes it entirely out of the statute. The order of the court was not interlocutory, but made part of the decree, as it always is on the matter *519reserved, though made at another day ; audit includes as well the carrying the purchase into execution, as the establishment of the charity ; amounting to a decree for the conveyance of the estate^on one side, and payment of the money on the other, who might be prosecuted for a contempt iu not obeying that order. And it is stronger than the common case of purchasers before the master, who are certainly out of the statute; nor should I doubt the carrying into execution, against the representative, a purchase by a bidder before the master, without subscribing, after confirmation of the master’s report that he toas the best pur chaser ; the judgment of the. court talcing it out of the statute." — Bee Blagden v. Bradbear, 12 Vesey, 466.
The doctrine here asserted is, that the purchase is, after confirmation, without the statute, and that the decree of confirmation takes it out. Browne, in his work on the Statute of Frauds, (§ 265,) takes the same view of the extent of the decision, saying, “ The decision ofLordllardwicke was simply that, after confirmation of the report, the parties were bound to carry out the sale, notwithstanding no memorandum of it had previously been made in writing.” Sugden, in his work on Vendors, gives the same operation to Lord Hardwicke’s decision, (see marginal pages 135 and 136,) and expressly places the doctrine upon the gi’ound, that the judgment of the court in confirming the purchase takes it out of the statute. The same view is also taken in Dart on Vendors, 555, note 2.
Judge Story, in Smith v. Arnold, (5 Mason, 420,) evidently referred the exemption of such sales from the operation of the statute of frauds to the decree of confirmation, for he remarked: “ lie (the purchaser) becomes a party in interest, and may represent and defend his own interest; and if he acquiesces in the report, he is deemed to adopt it, and is bound by the decree of the court confirming\ the sale."
Chancellor Kent, in Simonds v. Catlin, (2 Caines’ R. 61,) when deciding in reference to a sheriff’s sale, made a criticism of some severity upon Lord Hardwicke’s decision and seemed to have regarded it in a diffei’ent light; but it is manifest that that learned jurist did not observe — ■ *520what is patent upon a close examination — that the opinion which he criticised had reference to sales which required subsequent confirmation, and attributed their exemption from the statute to the operation of the decree of confirmation. — Browne on the Statute of Frauds, § 265.
In South Carolina, the court, in reference to the decision in the Attorney-General v. Bay, made this remark : “ It has been decided, that a sale by the master is a judicial sale, and that the confirmation of the repoi’t takes it out of the statute.” — Gordon v. Sims, 2 McCord’s Ch. R. 164.
The Virginia court of appeals, in Brent v. Green, (6 Leigh, 24,) distinguished, as did Judge Story in the case reported in 5 Mason, between judicial sales, and sales which did not require “confirmation. In this case, the decree of confirmation is treated as the agency which relieves judicial sales from the statute, and a determination is shown to narrow the operation of the rule, and to confine it to sales technically judicial.
This collation of the authorities leads us to the decision, that judicial sales are not taken out of the statute of frauds, until the decree of confirmation, and then only by virtue of that decree. There was no decree of confirmation of the sale to the defendant, and it is, therefore, not exempt from the operation of the statute.
There is no ground upon which we can approve the action of the court in overruling the demurrer to the plaintiff's second replication, and-we decide that the court erred in its judgment upon that demurrer.
[9.] The witness Snedicor was a competent witness, under our decisions made since the adoption of the Code. Harris v. Plant, 31 Ala. 639 ; Johnson v. Lightsey, 34 Ala. 169.
"We do not deem it necessary to pass upon any of the other questions presented by the bill of exceptions.
Judgment reversed, and cause remanded.