majority">DOWDELL, J.-

Some of the questions presented on the present appeal were determined and settled on a former appeal in this case in a well considered opinion by Brickbel, C. J. — Howison v. Oakley et al., 118 Ala. 215. We see no reason for departing from what was there decided,and, therefore, adhere to the principles laid down in that opinion. In what we may have to say on the present appeal, we do not wish or intend to repeat what was said on the former appeal further than is proper and necessary, owing to the changes made in the present- record by amendments of the pleading since the remandment of the cause under the first appeal. All that was. said in regard to. the necessary averments of notice on the former appeal, we here approve and reiterate. Since the remandment of the cause, the complainants have attempted by amendments of the various counts of the complaint to conform to what was heretofore said as to the necessary averments of notice to the purchaser at the sale of the subsequent proceedings of the court in ordering a resale of the lands. The question now is whether the counts as amended sufficiently aver notice.

These amendments are substantially to the effect that, “defendant was notified that the administrators would report his. sureties as insufficient and worthless to the court;” that, “defendant was notified that the court would not accept said worthless sureties.”

The object and purpose of notice to defendant is to give him his day in court, and to that end the opportunity of a hearing upon any and all questions affecting *517lii-s i-ig'lits and interests, -and to this end he should he apprised of a definite time and place of such hearing. It needs no argument to demonstrate that the notice averred in the -amended -counts was wholly insufficient to this end. A mere declaration by the administrators of what they intended to report to the court is not sufficient notice to the defendant of a day for -a hearing in court, and construing the pleading under the familiar rule, against the pleader, the averment that the defendant- was notified that the court would not accept the sureties given by him was nothing more than a speculation as to the future decree of the court. We feel, therefore, constrained to hold that the averments of notice- as contained in the amended counts are still insufficient.

Counsel for appellant -seem to think that the doctrine laid down in the opinion on the former appeal in this case iis in conflict with the decision in the ca-se of Griel v. Randolph, 108 Ala. 604. Upon a careful review of the two cases, we cannot agree that there exists any -conflict between them. The facts in. the two -cases are essentially different. The principles laid down in Griel v. Randolph were approved and reaffirmed on the former appeal in this case. In the former ease, the purchaser made no attempt whatever to comply with the terms of the sale and his bid, and wholly defaulted. In -such eaisie it was held that by the failure and the default lie sent his dereliction into -court to be dealt Avith as legally might, -and Avas, therefore, not entitled to notice of the -court’® action in setting aside the sale -and ordering a resale. In the present case, liOAvever, the facts disclosed by the averments in some of the counts of the amended co-m-plaint ish-OAV that the- purchaser did not wholly fail and default, but on the -contrary executed his notes with sureties, which the administrators refused to accept as being in -compliance with the terms of the -sale, because of the insolvency o-f the sureties. And the question upon the report and hearing wa-s as to the sufficiency of the surety, AAflth the consequent right of the purchaser, after a determination by the c-ourt of their insufficiency, to 'Comply with the terms of the sale and his bid by giving -other -and sufficient surety.

*518There are other questions, however, presented on this appeal which were not presented and considered on the former appeal. After the remandment of the cause, as stated above, amendments of various counts were made, to which the defendant filed motions to strike certain parts and also demurrers. A motion was made to strike portions of the 8th count relating to the ineffectual attempt of the defendant to comply with the terms of the sale and his bid in that he gave his notes with insufficient 'sureties, and also as to that part relating to averments of notice of the intention of the administrators to report the insufficiency of such 'sureties, which said motion was sustained by the court. And after sustaining the motion, a demurrer by the defendant was filed to the count as it then stood. Eliminating from the 8th count the portions stricken on motion of the defendant, as this count then stood, when the demurrer wras interposed, the averments were not of an ineffectual attempt to comply with the terms of the sale, but a total failure and default on the part of the defendant without any effort whatever to comply, thus leaving the count with averments of a substantial cause of action under the principles laid down in Griel v. Randolph, supra.As the count then stood, no averment of notice was necessary to the defendant, and the court erred in sustaining the demurrer.

' Again, in addition to the amendments above referred to, which were made to the several counts since the remandment of the cause, the complaint was likewise amended bjr the addition of several other counts, among which we need only consider the 17th count, to which the argument of counsel for appellant is specially directed. This count presents the case in a wholly different phase from that which was presented on the former appeal. This count contains averments of fraud on the part of the defendant in bidding at said sale. It is averred that he never intended to comply with the terms of the sale and his bid when he made the same; that he well knew that the sureties on the notes which he offered were wholly insolvent and that he procured and gave, the same with a purpose and intention on his *519part of preventing the confirmation by the court of the sale; and that all of this was done and such means were so employed by the defendant in order to-compel a resale whereby he might be enabled to purchase these identical lands for a greatly less price. If these averments he true, then it is clear that the defendant could not stand upon any higher or better ground than one who makes no effort to comply with his bid hut wholly defaults. If guilty of fraud, as averred in the complaint, he has no rights in the premises to be protected. The service of notice to appear in court to show cause why his purchase should not1 he confirmed and a resale should not be ordered, under such, state of facts, would he wholly unavailing, since the fraud averred was made up in part of a purpose and intention on the part of the bidder to defeat a confirmation of the sale. The intervening fraud dispensed with the necessity of notice, and it became the duty of the court to order a resale at the risk of such bidder. The court, we think, erred in striking from the 17th count these averments as to fraud, and in sustaining the demurrer to isiaid count. What we have said above, in connection with what was said on the former appeal, we deem sufficient for the purpose of another trial without consideration of the assignments of error in detail; especially since some of them raise questions which are practically nothing more than an application for a rehearing upon some of the questions decided upon the former appeal.

For the errors pointed out, the judgment of the court below will be reversed and the cause remanded..

Reversed and remanded.

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