SANDFORD vs. OCHTALOMI, 23 Ala. 669

LIGON, J. 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. By the first proviso to the fifth

section of the act “to prevent the sacrifice of real estate,” (Clay’s Dig. 503 § 5,) it is enacted, “that the defendant in execution, if in possession at the time of the sale, shall deliver possession to the purchaser without suit.” To entitle the defendant in execution to redeem, this fact should be distinctly charged in the bill, and must not bo left to inference or conjecture. It is as essential to the equity of his bill under the statute, as either of the other facts required by it to entitle him to relief.

A bill which failed to aver a tender, and that such tender was made within two years from the sale of the premises, would not, we presume, be entertained for a moment; and yet these arc not more positively required by the statute ihan a surrender of tho possession without suit by the defendant in execution. 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.

There are no allegations in this bill which would authorize the Chancellor to take an account between the parties, except as to the amount of money necessary to redeem tho premises.— It is true the complainant alleges that he tendered the sum required by law, and demanded a re-conveyance several months before the filing of the bill, and that it was refused by tho plaintiff in error.

But there is no allegation, any where to bo found, from which it appears that the possession of the lot was changed on or after the sale by the sheriff; or that either Flournoy or the plaintiff in error ever received any rents, or that either of them ever was in possession by himself or tenant for a single hour. Under this state of the case there is no allegation in the bill to justify tho taking an account of rents, or support a decree for the sum reported by the master to be due on that account.

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 exceed the value of the improvements, no decree can be rendered for such excess. 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.