27 Ala. 193 | Ala. | 1855
No decree can be rendered which is not founded on an allegation in the bill, notwithstanding there may be ample testimony to justify it. — Sandford v. Ochtalomi, 23 Ala. 669; Lockard v. Lockard, 16 ib. 423.
There are no allegations in the bill in the present case, which would authorize the court to render a decree for rents and profits, or even to consider them for any purpose, except merely “ by way of offset to the improvements made.”
The right to redeem is not perfect, and cannot be enforced in a court of chancery, until there is either a performance (by the person desiring to redeem) of all that the statute requires of him, or a valid and sufficient excuse for non-performance. And a bill to redeem, which does not allege either such a performance, or such excuse for non-performance, and couple such excuse with an offer in the bill to perform all that the statute requires, — contains no equity. — Rothwell v. Gettys, 11 Humph. Rep. 135, and cases supra; Southard v. Pope, 9 B. Monroe, 264 ; Griffin v. Coffey, ib. 453.
If the bill does not show that a tender was made before it was filed, a tender made in it is not sufficient to authorize a decree for the redemption, unless, in connection with such offer, the bill shows a valid and sufficient excuse for the omission to make a tender before it was filed. And although the redemption was properly decreed upon the pleadings and proofs in Freeman & Warren v. Jordan, 17 Ala. 500, yet the first head-note to that case is not law, and is not authorized by the decision actually made in that case. — See cases cited supra.
The title of such purchaser at execution sale, to the land and its rents and profits, as against all persons desiring to redeem, continues perfect and absolute, from the time ho goes into possession, until he is put in default. His liability to account for rents and profits, except merely “ by way of offset to the improvements made,” docs not arise, until ho is in default.
Without undertaking- now to specify the various modes in" which he may be put in default, it is sufficient for the purposes
The decree is affirmed.