— The case made by the present bill somewhat resembles that presented in Cain v. Gimon, 36 Ala. 168. There are differences. In that case, Lassabe, the trustee, sold under the power contained in the trust deed, and Gimon, the beneficiary, became in fact the purchaser, through Conche and Parker, who conveyed by successive quit-claim deeds to him, Gimon. The title under the trust sale had thus vested in Gimon, the beneficiary under the trust deed, or mortgage, and remained in him. The changes of title through Conche and Parker to Gimon were colorable, no money in fact passing in either of the pretended sales. The bill of Mrs. Cain averred, that not more than fifty dollars was due on the mortgage, and contained the following clause : “ Complainant hereby tenders that amount to said Gimon, and is ready to pay that amount, or any other sum that may be found due by Cain to him, and submits herself to this court, for its decree in that behalf.”
The bill in the present case avers, that Herstein and Bernstein became purchasers of the main property in controversy, under two sales : first, at the chancery sale made in the suit of Spraggins, the decree being for unpaid purchase-money due from Moore, under whom both complainants and defendants in this suit claim. Their second chain of title proceeds *376from a sale by Ward, trustee under the trust deed made by Moore and wife to secure Smith, purchase by Smith at that sale, and deed made to him, and subsequent deed of bargain and sale made by Smith and wife to Herstein and Bernstein, in consideration of six thousand dollars. There is no averment that Herstein and Bernstein had any knowledge or notice of the state of accounts between Moore and Smith ; that they did not pay for the property ; that they bought it below its value, or that they participated in, or had any knowledge of the alleged overcharges by Smith in his account against Moore. Nor does the bill deny that something is, or may be, due from Moore to Smith on account; nor does it tender, or offer to pay, any balance that may be found due. The bill seeks to avoid the effect of the sale made under the chancery decree in favor of Spraggins, and conveyance to Herstein and Bernstein by the register,¡¡by averring that the complainants in the present suit, subsequent incumbrancers, were not made parties to the Spraggins suit.
The deed from Moore, under which the present complainants claim, bears date September 11th, 1866. It recites that the property conveyed, the same in controversy in this suit, is “ now subject to debts due to Joseph C. Bradley and E. G. Smith.” The Spraggins decree was recovered on the debt to J. C. Bradley, transferred by him. The deed made to Ward, trustee, for the benefit of Smith, bears date May 10th, 1866; and the decree in favor of Spraggins, under which Herstein and Bernstein purchased, was rendered June 8th, 1867; less than nine months after the conveyance to complainants, under which they claim. It is not shown when the Spraggins suit was commenced, whether before or after September 11th, 1866.
Certain well-settled principles are fatal to the complainants’ case, as made by their present bill.
First: The failure to make tender, or offer .to pay what may be found due, thereby submitting themselves to the authority and jurisdiction of the court, so that, without more, the court may compel them to do equity, as a condition to granting them relief. — Rogers v. Torbert, 58 Ala. 523; Eslava v. Crampton, 61 Ala. 507; Cain v. Gimon, supra; 2 Jones on Mortgages, sections 1095-6.
Second: There is no averment in the bill, showing the true state of account between Moore and Smith, or tending to show that Herstein and Bernstein had any knowledge or notice thereof, or that they, to any extent, participated in, or were cognizant of any fraud or oppression practiced by Smith, if any were practiced. The averments of the bill, on this subject, are very vague. — 2 Jopes on Mortgages, section *3771654; Childress v. Monette, 54 Ala. 317; Jones v. Cowles, 26 Ala. 612; Lucas v. Oliver, 34 Ala. 626.
Third : I.t is not shown that the Spraggins suit, under which the register made sale, was not commenced before Moore conveyed to his children, the complainants. If so, Spraggins was under no obligation to make them parties. They purchased pendente lite, and with constructive notice, But, if that suit were commenced after September 11th, 1866, we do not wish to be understood as affirming that the failure to make them parties, by its unaided force, would avoid the effect of the foreclosure. We leave that question open.- — Doe, ex dem. v. McLoskey, 1 Ala. 708; Cullum v. Batre, 2 Ala. 415; Walker v. Bank of Mobile, 6 Ala. 452; Glidden v. Andrews, 10 Ala. 166; Hunt v. Acre, Johnson & Co., 28 Ala. 580.
It is possible the present bill may be so amended as to obviate the defects pointed out above. We therefore reverse the decree of the chancellor, and remand the cause, with instructions to him to sustain the demurrer, and dismiss the bill, unless it is so amended as to give it equity.
Brickell, C. J. not sitting.