23 Ala. 669 | Ala. | 1853
The decree in this case cannot be sustained for two reasons : first, because the allegations of the bill are not sufficient to entitle the complainant to the relief he seeks; and, second, because the relief granted by the decree extends beyond that which the allegations of the hill will justify.
It is true, the actual surrender may bo excused, if it is alleged that the purchaser consented that the defendant in execution might retain possession as his tenant; but then this must appear by tho bill, and, if denied, must be proved, before any relief will be granted.
The rule is, that no decree can bo rendered which is not founded on an allegation in the bill, and this, notwithstanding there may be ample testimony to justify it.—Boazman et al. v. Draughan, ex’r, 3 Stew. 243; Borland v. Phillips, 3 Ala. 718; McKinley v. Irvine, 13 Ala. 681.
If this bill contained an allegation that the plaintiff in error held possession of tho premises after a tender had been made as is required by the statute, it would, perhaps, be proper to take an account of rents accruing after that time. But the purchaser cannot, in any case, be made to account for rents accruing before tho tender, except when he has made improvements for which the defendant in execution is bound to pay under the fifth section of the act above referred to, and then they are to be applied only as sets-off against such improvements. Should they
As the defect in the bill may be supplied by an amendment, if the facts of the case will justify it, the decree must be reversed, and the cause remanded.