PETERS, J.
The question of importance in this cause is, what force shall be given to the order oí sale made by the so-called “probate court,” sitting in the county of Mobile, in this State, on the thirteenth day of January, in the year 1863, under authority of which the sale of the lands now sought to be set aside, was made ? Has that order any validity ? and to what extent is it to be treated as a sufficient .authority ?
*647Undoubtedly, the court that made the order for this sale was not a court of a State of the Union. At the time this order was applied for, at the time it was made, and at the date of the sale and its confirmation, the State of Alabama was under the control of the insurrectionary government which had been organized after the passage of the ordinance of secession. Speaking of just such a government, Chief Justice Chase declares that its legislative department was illegal. He says : “ In this case, however, it is.said that the restriction imposed by the act of 1851 (the law of the legal government,) was repealed by the act of 1862, (the law of the illegal government.) And this is true, if the act of 1862 can be regarded as valid. But was it valid ? The legislature of Texas, at the time of the repeal, constituted one of the departments of a State government established in hostility to the constitution of the United States. It can not be regarded, therefore, in the courts of the United States, as a lawful legislature, or its acts as lawful acts.” — Texas v. White, 7 Wall. 732, 700. The courts of these insurgent governments were also departments of the same organizations. — Const, of Secession Gov. of Ala. of 1861, Art. Ill, sec, 1. Then, what vitiated the acts of the one branch of the government, would also render void the acts of the other departments of the same. Ubi eadem ratio ibi idem lex. — 7 Coke, 18; Broom’s Max. But this principle, that an unauthorized government organized within a State or a territory of the Union was illegal, was not new with the Chief Justice, who delivered the opinion of the court in the ease of Texas v. White, above quoted. The same doctrine had been distinctly announced by Justice Woodbury, in 1846, in the case of Scott v. Jones. Speaking of the unauthorized government which had been erected in the Territory of Michigan, before the admission of that State into the Union by Congress, he says: “ Again : such conduct by bodies situated within our limits, unless by States duly admitted into the Union, would have to be reached either by the power of the Union to put down insurrections, or by the ordinary penal laws of the States or territories within which these bodies unlawfully organized are situated and acting. *648While in that condition, their measures are not examinable at all by a writ of error to this -court, as not being statutes by a State or a member of the Union.” — Scott v. Jones, 5 How. 378, 343. In this opinion, the distinguished Justice alludes to.the legislative acts of such unlawful organizations “ within our limits ” as mere “ measures,” which were entitled to no standing pr notice in the courts of the United States, for the very significant reason that they were not “statutes” of “a State or a member of the Union.” These declarations show that a government erected in a State of the Union, which is in hostility to the constitution and laws of the nation, is illegal, not only in one, but in all its departments. In the case of Luther v. Borden, Chief Justice Taney very emphatically and distinctly proclaims what force is due to the acts of a government erected in a State, which had “ no legal existence that is, a government erected contrary to law, or “ in hostility to the constitution of the United States,” which is “ the supreme law of the land.” He says: “For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it, should be decided that the charter government had no legal existence during the period of time above mentioned, if it had been annulled by the adoption of the opposing government, then, the laws passed by Us legislatwre during that time were nullities; its taxes wrongfully collected ; its salaries and compensation to its officers illegally paid ; its public accounts improperly settled ; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals.”^ — Luther v. Barden, 7 How. 38, 39, 1. No stronger expression can be anywhere found of the utter nullity of all the acts of an illegal government within a State of the Union, than in this of the late Chief Justice of the highest court of the nation. This opinion has never been seriously doubted or denied, but it has been constantly affirmed by every branch of the national government since it was made public. Again, in Mauran v. Insurance Company, Justice Nelson, speaking for the court, says; We agree, that all the proceedings of the eleven *649States, either severally or in conjunction, by means of which the existing governments were overthrown, and new governments erected in their stead, were wholly illegal and void, and that they remained after the attempted separation and change of government, in judgment of law, as completely under all their constitutional obligations as before.” — Mauran v. Insurance Company, 6 Wall. 18" court="SCOTUS" date_filed="1868-01-27" href="https://app.midpage.ai/document/the-amelie-87883?utm_source=webapp" opinion_id="87883">6 Wall. 18, 14, 1. In Chisholm v. Coleman, this court, anticipating the decision in Texas v. White, supra, has decided that the rebel government in this State during the late war was illegal, and that the judges of its circuit courts were not the judges of the rightful legal government. — 43 Ala. 204" court="Ala." date_filed="1869-01-15" href="https://app.midpage.ai/document/chisholm-v-coleman-6507649?utm_source=webapp" opinion_id="6507649">43 Ala. 204. Governed by the principles announced in the above cited cases, my own conclusions force me to pronounce the decree of the so-called “ probate court ” of the county of Mobile, in this State, under authority of which the lands belonging to Micael Prieto were sold, to be wholly void, as the decree of a court of an illegal government. But this question has been so far determined in this State as to give said decree the force of a foreign judgment, if it should appear that the tribunal by which it was rendered had jurisdiction to render any decree in the premises. Such is the decision in the case of Martin v. Hewitt, June T. 1870. The people alone have the power to make governments in this country, and to unmake and to change them; but even in this they have bound themselves to act in conformity to the constitution and laws of the nation. When they do not act under this authority, but in hostility to it, their acts are illegal and insurrectionary, and when the insurrection is put down by the supreme authority of the nation, such illegal governments and their acts can have only such recognition in our courts as the political authority of the State or nation chooses to give them. They must either have legal sanction to begin with, or legal sanction in the end, to cure their irregularities and unlawful inception. The doctrine of governments de facto can have no place in the political system of the United States, because here the courts can only know the government of a people acting harmoniously with the nation, and which has been erected in conformity with law, or which has been acknowledged *650and acquiesced in by the legitimate political power, whether State or national. The existence of a government, and its boundaries, is a political question, and the courts can not settle this, or questions arising under it, until it is first settled by the rightful, or at least the successful political authority. — Cherokee Nation v. Georgia, 5 Pet. 20; Rhode Island, v. Massachusetts, 12 Pet. 736, 738 ; Santissima Trinidad, 7 Wheat. 336, 337; City of Berne v. The Bank of England, 9 Ves. 347. The Confederate government in the State of Alabama, during the rebellion, was an illegal government, criminal and void. It has never been acknowledged by the rightful political power as a government de facto, or in any legal sense as an authority capable of enacting valid laws by its legislative department, or of rendering valid judgments by its courts. — See Ex parte Bibb, Jan. T. 1870; Noble & Bro. v. Smith Cullom & Co., June T. 1870 ; Ray v. Thompson, Jan. T. 1870.
But the decision in Martin v. Heioitt, supra, has to a certain extent closed the discussion in this court upon the invalidity of the judgments and decrees of the courts of the Confederate government rendered in this State during the rebellion. They are to have some force, but not greater than that of the judgments of foreign courts. Judge Story lays it down as the result of his inquiries, that “ the general doctrine maintained in the American courts in relation to foreign judgments certainly is, that they' are prima facie evidence; but they aire impeachable. But how far, and to what extent this doctrine is to be carried, does not seem to be definitely settled. It has been declared, that the jurisdiction of the court, and its power over the parties and the things in controversy, may be inquired into ; and that the judgment may be impeached for fraud. Beyond this, no definite lines have as yet been' drawn.” — Confl. of Laws, § 608, pp. 1003, 1004; see, also, 2 Kent, 120, marg. This seems also to be law in this State, so far as it has been indicated by the sovereign will. Ordin. No. 40, Conv. of 1867; Pamph. Acts 1868, pp. 187, 188. From such a decree, necessarily there is no appeal or writ of error to the courts of the rightful government. Scott v. Jones, supra. Then the only method of correcting *651its departures from law, must be a rehearing of the questions upon which its “ considerations ” rest. This, possibly, might be done in the court of probate where the original record in the cause remains, if the judgment has not been carried into effect, or has not been executed and satisfied. — Ordinance No. 40, Convention of 1867; Pamph. Acts 1868, pp. 187, 188. If this ordinance may be claimed to give the proceedings in the rebel courts of probate some recognition, and consequently some validity, it at the same time prescribes a method for their re-examination and the correction of their errors. This was necessary. And it harmonizes with the principle upon which the decision of the case of Martin v. Hewitt, above referred to, is made to rest. But where the decree has been executed, and persons not parties to the proceedings in the court of probate have acquired interests upon which they would be entitled to be heard, then the jurisdiction of the court of probate would fail to afford the necessary relief, without the exercise of chancery powers. Such powers have not been bestowed by law upon the courts of probate. Then, the decrees of the rebel courts of probate must either be held to be nullities, which the decision in Martin v. Hewitt will not permit, or their errors must go uncorrected, which in many cases would be a great hardship upon minors and persons out of the jurisdiction of the rebel authority. To avoid this injustice, and at the same time to afford relief to parties really interested in the matters in controversy in the proceeding, with whom a court of probate can not deal, I have no doubt that it is a legitimate application of principles long established in our system, to allow a resort to chancery for relief in such a case as that presented by the bill in this suit. I therefore think that the bill is not devoid of equity. And the objection mainly urged against it must be based upon the supposition that the decree of the rebel court of probate is a nullity, for in no other event would the remedy at law be complete. But this can not now be said, unless the so-called court of probate transcended the jurisdiction which it had usurped.
Admitting that the so-called “ probate court of Mobile county” has received some recognition by the ordinance *652above referred to, and tbe decision in the case of Martin v. Heioitt, supra, did that court transcend the jurisdiction it essayed to put in force by the order and decree of sale here complained of ? If it did, then the whole proceeding is void, and incapable of any ratification by any department of the present government. For, a void judgment can no more be cured and made good, than a void law. A void decree is a nullity. And such a decree can not be cured by legislative enactment, because this would be the judgment of the general assembly, and not of a court. It is laid down by the text writers upon the most well considered authority, that “ a void proceeding is so entirely vitiated as to be incapable of amendment'.” It can not be cured. — Macnamara on Nullities, p. 24, marg., and cases there cited ; 3 Chitt. Gen. Pr. p. 524, marg.; Briggs v. Blue, 5 McL. 148; Kempe v. Kennedy, 5 Cranch, 173" court="SCOTUS" date_filed="1809-02-20" href="https://app.midpage.ai/document/kempes-lessee-v-kennedy-84900?utm_source=webapp" opinion_id="84900">5 Cranch, 173. Here, the law under which the so-called “ probate court of Mobile county” professed to act, was the Code of Alabama. This court was an “ inferior court,” and its jurisdiction was limited and special. — Const. Ala. 1819, Art. Y, §§ 1, 9; Code of Ala. § 670; Rev. Code, § 790. The law in force at the time this sale was applied for and granted, was in the following words — that is to say:
“ § 1754. Lands may be sold by the executor or administrator with the will annexed, for the payment of debts, in the following cases:
“ 1. When the will gives no power to sell the same for that purpose, and the personal estate is insufficient therefor.
“ 2. When a sale of the lands is more beneficial than a sale of slaves, and is not in conflict with the provisions of the will.” — Code of Ala. § 1754; Rev. Code, § 2079.
Here are two grounds upon which the court may proceed to grant an order to sell the lands of a decedent in this State, for the payment of debts, and only two. These are set forth by number, by the legislative authority. Such an enumeration excludes all other grounds. And these grounds being each separately and distinctly stated, can not be combined. Either the one or the other must exist, else the court has no authority to act. The legisla*653tive intention to this effect is most clearly shown both by the language used to declare the jurisdictional facts, and their mode of statement. No other grounds save those mentioned in the statute need be set out in the petition for the order to sell. Such additional grounds are mere surplusage, and neither aid nor vitiate the proceeding. Utile per inutile non vitiatur. — 7 Bouv, Bac. Abr. 460; 1 Pet. 18" court="SCOTUS" date_filed="1828-02-18" href="https://app.midpage.ai/document/carroll-v-peake-85560?utm_source=webapp" opinion_id="85560">1 Pet. 18; 1 Ala. 326" court="Ala." date_filed="1840-01-15" href="https://app.midpage.ai/document/castles-v-mcmath-6501297?utm_source=webapp" opinion_id="6501297">1 Ala. 326 ; 2 Saund. 306m. And both grounds might be alleged in the same petition, but one at least should be proven before the order to sell should be granted. And either would be sufficient, but not parts of both combined, because this would make a third ground not specified in the Code. Construction which sanctions such practice makes the law, rather than declares what it is. This is usurpation, and goes beyond the duty and power of the court. Judiéis est jus dicere non dare. — Lofft. 42.
When a will is once lawfully established and admitted to probate in this State, it is required of all the courts, so far as they deal with it, to see that it is duly carried into effect; that the intention of the testator is executed, and not defeated. The will is the law when its provisions can be carried into operation, unless it conflicts with law. And it is only to be disregarded so far as such conflict exists.
In this case, the will gives no power to sell the testator’s lands for the payment of her debts. But it directs a sale of a portion of the lands for re-investment for a particular purpose. Then, as the whole property of the decedent is charged with the payment of her debts, with certain exceptions which need not be here noticed, it might have been sold under the first clause of the section of the Code above qeoted. — Code of Ala. §§ 1737,1738 ; ib. § 1754, cl. 1. But the petition was not based on this clause of the section ; that is, that “ a sale of the lands is more beneficial than a sale of slaves, and is not in conflict with the provisions of the will.” Under this specification, two facts must concur to authorize the grant of the order for the sale: the beneficial character of the sale, and the non-conflict with the provisions of the will. Here, the petition alleges the necessary jurisdictional facts, in order to justify the court to undertake the inquiry proposed to be made. The *654court, then, had rightful jurisdiction of the subject matter, so far as this can be given by the mere allegations of the petition. — Satcher v. Satcher, 41 Ala. 39; Mattheson v. Hearin, 29 Ala. 210" court="Ala." date_filed="1856-06-15" href="https://app.midpage.ai/document/mathesons-heirs-v-hearin-6505825?utm_source=webapp" opinion_id="6505825">29 Ala. 210. But the will itself is necessarily a limit upon the jurisdiction of the court. The statute so makes it. The duty of the court is to carry the provisions of the will into execution, and to see that the estate of the testator is disposed of as he directs in his testament. To do this, the court must look to the will as its guide. If the provisions of the will contradict the allegations of the petition, the jurisdiction of the court is suspended. It is forbidden to proceed, because the will is in the way. This the court must know, because the court is as much bound by the directions of the will as the administrator himself. The court, in dealing with the estate, necessarily does so under the limitations of the will. In such a case, then, the will must be regarded as a part of the petition for the order to sell, because the petition is founded upon the dispositions made in the testament itself.
Here the court had jurisdiction, but only upon a certain statement of facts. When the testamentary paper is looked to, it shows that these facts did not exist in connection with the facts alleged in the petition. The sale was, then, forbidden and unlawful. Such a sale is void when made under the order of an “ inferior court.” — Mathewson v. Sprague, 1 Ct. 457; Ex parte Watkins, 3 Pet. 193" court="SCOTUS" date_filed="1830-02-18" href="https://app.midpage.ai/document/ex-parte-tobias-watkins-85668?utm_source=webapp" opinion_id="85668">3 Pet. 193. If this construction is not to be adhered to, then the court of probate may utterly defeat the testator’s disposition of his property, not by a mere irregularity in the proceeding, but by a disregard of the will and the law of its execution. This could not have been the legislative intent.
Again: the law in force at the date of this sale required that “ the executor or administrator must, within sixty days after such sale, report on oath his proceedings to the court, who must examine the same, [the proceedings,] and may also examine witnesses in relation thereto.” And on such examination such sale might be vacated, in whole or in part. — Code of Ala. §§ 1765, 1766. This legislative direction must have some force, else it may be altogether disregarded. If it is merely directory, its omission is but *655an irregularity, which does not vitiate the proceeding.— Maenamara on Nullities, p. 6,24, marg. The death of the administrator who made the sale, before it was properly reported to the court, rendered it impossible for him to make the report as required by law. The sale, until so reported and confirmed, when it is for cash, is inchoate, and it should be vacated by the court when the examination authorized by the statute shows that the sale had been made for a currency not allowed by law. Here, the bill and the proofs show that the sale was for “ treasury notes of the Confederate States of America.” Such a sale was not authorized to be made for such a currency. And it can not be sustained. It should have been set aside.— Ordin. Conv. 1867, No. 40; Pamph. Acts 1868, p. 187. And the learned chancellor erred in his refusal to vacate said sale, and in the dismissal of appellant’s bill in the court below.
And the court of chancery having taken jurisdiction for the purpose of vacating the sale, will proceed to settle the whole controversy as equity may require. — Blakey v. Blakey, 9 Ala. 391" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/blakey-v-heirs-of-blakey-6502833?utm_source=webapp" opinion_id="6502833">9 Ala. 391; Gayle et al. v. Singleton, 1 Stew. 566" court="Ala." date_filed="1828-07-15" href="https://app.midpage.ai/document/gayle-v-singleton-6531406?utm_source=webapp" opinion_id="6531406">1 Stew. 566. In this ease, neither Eorrer nor Tuthill can be treated as bona fide purchasers without notice. One dealing with lands so situated, must be charged with notice of the whole proceedings upon which his title rests. These show that the sale was unauthorized. — Johnson v. Thweatt, 18 Ala. 741" court="Ala." date_filed="1851-01-15" href="https://app.midpage.ai/document/johnson-v-thweatt-6504447?utm_source=webapp" opinion_id="6504447">18 Ala. 741.
In the further progress of this cause in the court below, the said defendant, Forrer, will be charged with the value of the use and occupation of the land in controversy during the period of his possession, and he will be allowed a credit for all necessary repairs and improvements by him made on the same, and also a credit for the cash value of the Confederate treasury notes paid by him for the same under the authority of said so-called sale, if the same has been of benefit to the testator or his heirs, said value to be fixed at the date of the payment of said Confederate treasury notes. And the said Tuthill will be charged with the use and occupation of said land during his possession of the same, and allowed credit for all necessary repairs *656and improvements thereon by him made during his said possession.
Note bv the Reporter. — The opinion in this case was delivered at the June term, 1871, but was inadvertently printed along with those of the January term, 1871. Owing to the importance of the principles involved, the Reporter has given the briefs at length, and set out the facts more in detail than usual.
The proceedings and proofs in the court below do not furnish sufficient grounds for a proper final decree in this court. The decree of the chancellor in the court below is therefore reversed, and the cause is remanded for further proceedings in the court below. The appellees will pay the costs of this appeal in this court and in the court below.