Spoor v. Phillips

27 Ala. 193

• Court: Supreme Court of Alabama
• Decided: June 15, 1855
• Status: Published

Opinion

BICE, J.

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 purchaser of land of a judgment debtor, at a sale under execution, on receiving the sheriff’s deed, becomes the abso: lute owner, and, entering into possession, is entitled to the rents and profits. Nothing is left in the former owner, or his judgment creditors, but the naked right to redeem ; which is lost, if it be not asserted in the time and manner prescribed by the statute, unless, without fault or neglect on the part of the person desiring to redeem, he is prevented or excused from thus asserting it, by the conduct or agreement of such purchaser. — Kennon v. Pillow, 7 Humph. Rep. 281; Simmons v. Marable, 11 ib. 436; Paulling v. Meade, 23 Ala. 505.

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 of this case, to declare that, as no tender was made to the purchaser of the land mentioned in the bill, in his lifetime, he was not in default at his'death ; and that, as the bill shows that he died intestate, leaving minor heirs, and that administration was granted on his estate, and fails to show that any tender was made before it was filed, and also fails to show that the tender therein made was accompanied by the payment of the money into court, no default of the administrator or heirs is alleged, and there cannot be any decree against them, or either of them, for the rents and profits. Conceding that the bill shows enough to authorize the court to decree a redemption of the land, on causing the complainant first to pay the purchase money and ten per cent, interest, and other lawful charges; yet it does not show enough to entitle him to a decree for rents and profits.

The decree is affirmed.