The appeal is from a decree overruling the appellant's demurrer to the bill. The court sustained grouds 35 and 36 of the demurrer to the bill as it stood before the last amendment, but overruled the demurrer to the bill as finally amended. There is no particular occasion to deal with the bill otherwise than on the case made after the last amendment. The first consideration is the construction of the bill as finally amended. According to the familiar rule, its averments must be construed most strongly against the pleader. 5 Michie, Dig. Ala. Rep. p. 546. Reading the bill, as last amended, in the light and under the influence of the stated rule of construction, the case made is simply this: The mortgagee (appellant-respondent) foreclosed the *Page 121 mortgage under the power of sale, and, being the highest bidder thereat, became the purchaser of the land described in the mortgage and, now, also described in the bill; and subsequent to the foreclosure the erstwhile mortgagors executed to the erstwhile mortgagee a conveyance of these lands with the parol promise to allow grantors (erstwhile mortgagors) to "redeem" at any time within two years from the date of the deed by paying the consideration named in the deed — a copy of the deed not being exhibited with the bill — and, within two years from the date of the foreclosure sale and subsequent to the execution of the deed mentioned, the erstwhile mortgagors filed this, their bill to enforce statutory redemption. The principles of law applicable to the case made by the bill are all thoroughly settled in this jurisdiction. There being no facts averred to impeach the foreclosure sale, nothing remained thereafter in the mortgagors but the statutory right of redemption; the relation of mortgagor and mortgagee was thereby completely severed and the respondent's (appellant's) attitude of a purchaser at the foreclosure sale was established. Jackson v. Tribble, 156 Ala. 480, 489, 490, 47 So. 310. This purchase at the foreclosure sale operated to vest in the purchaser the legal and equitable title, and cut off the equity of redemption. Hambrick v. New England Mortgage Security Co.,100 Ala. 551, 13 So. 778; Mewburn v. Bass, 82 Ala. 622, 2 So. 520; Cooper v. Hornsby, 71 Ala. 62. Such purchase by the mortgagee satisfied and discharged the mortgage debt in the amount of the mortgagee's bid as the result of operation of law. Harris v. Miller, 71 Ala. 26, 32, 33. For aught that appears from the bill, the mortgage debt was entirely extinguished as the result of the sum bid by the mortgagee. The bill affirms that the respondent went into possession of the land. It does not seek to disaffirm the foreclosure sale. Aside from numerous expressions that unmistakably evince the complainants' purpose to effect statutory redemption, the bill makes particular reference, by way of exoneration, to Code, § 5748, which is, itself, a part of the system of statutory redemption; though this section was amended by the act as pointed out in Morrison v. Formby, 191 Ala. 104, 67 So. 668. The agreement asserted in the bill as last amended, viz. to allow the complainants to redeem within two years from the date of the deed, was void because not in writing. Peagler v. Stabler, 91 Ala. 308, 311, 9 So. 157. Since there can be no mortgage without a mortgage debt (Farrow v. Cotney, 153 Ala. 550,45 So. 69; Bell v. Shiver, 181 Ala. 303, 61 So. 881), it is not possible to interpret the deed from the complainants to the respondent as being, in effect, a mortgage. So long as the deed from the complainants to the respondent (purchaser at the foreclosure sale) is unimpeached, the complainants are without right to assert statutory redemption; they having thereby parted with that right through the deed.
The suggestion that the deed may be canceled for fraud cannot be sustained on the averments of the bill as last amended. Assuming that the respondent promised when he took the deed to allow redemption within two years from the date thereof, the breach of the promise was not such a fraud as would authorize the cancellation of the conveyance. Patton v. Beecher, 62 Ala. 579; Holloway v. Smith, 198 Ala. 118, 73 So. 417. It is hardly necessary to add that the existence of fraud is never presumed or assumed.
In my opinion the court erred in overruling the demurrer. The bill is without equity as now constructed.