Creagh & Forwood v. Savage. ments rendered, in the cases referred to, and relied on by the counsel for the plaintiff in error. Nor are we able to perceive any other sufficient reason, for declaring such sales invalid, than that which is derived from the incongruity of the sheriff being permitted, to be at once both buyer and seller. Such being the reason of the rule, it would seem entirely proper, that when the rule is applied to a purchase made by a sheriff at his own sale, it should be enforced with all its concomitants. No sufficient reason in our judgment, has been assigned, for adopting a part of the rule only. It is because he is acting for others, that he cannot purchase for himself, but it has never been held in relation to other fiduciaries, that they acquire no title by their purchase; on the contrary it is as well settled as any legal proposition can be, as shown by the cases cited, that the trustee by his purchase, takes a defeasible estate, subject to be divested at the election of the cestui que trust. Even when in addition to the fiduciary character of the purchaser, he acts fraudulently in the purchase, the title nevertheless vests in him by the purchase, and if acquiesced in by the cestui que trust for an unreasonable length of time, cannot be divested. [Johnson v. Johnson, 5 Ala. 90.] In our opinion, all the reasons for holding the purchases, of one acting in a fiduciary capacity at his own sale voidable only at the election of the person interested, apply with increased strength when applied to the case of a purchase by the sheriff. His purchase may be beneficial to the parties to the execution: he may have given more than the property would again sell for; why then should the sale be disturbed. The interest of those concerned in the sale, is sufficiently protected, by giving them the right to have a re-sale of the property on refunding the price paid for it; although this point has not been expressly decided by us, such is the tendency of all our decisions. [McLane v. Spence, 6 Ala. 896, and Costillo v. Thompson, at the present term.] Cases have been cited from Courts of very high authority, holding a different doctrine. We are not satisfied with the reasoning upon which they are founded, and cannot yield our assent to them. In Kentucky, where the principle has been most decisively settled, that such sales of personal property are absolutely void, and that no title passes to the sheriff, it may be remarked that there is a statute prohibiting the sheriff from purchasing land at his own sale, and declaring that it may be again sold by execution, for the debts of the defendent in execution and conside Creagh & Forwood v. Savage. rable stress is laid by the Court in their judgment upon this as a legislative declaration of the policy of the State. [3 Bibb's Rep. 450.] In Carter v. Harris, [4 Rand. 207,] the point is not decided but is expressly waived by the Court. That was a bill in chancery to vacate a sheriff's sale, for fraud in the manner of conducting it, and it was not necessary, or proper to determine whether the title passed by the sale, nor was the point decided. On the other hand, in Massachusetts, it has been denied that any such objection exists to purchases by the sheriff, or that he sustains the relation of agent or trustee to the defendant; and whilst it was admitted that if either the creditor or the officer, by taking advantage of the necessities of the debtor should obtain from him an unconscionable bargain, the law would set it aside; the fact merely that the sheriff was the purchaser did not make the sale void. [Arnold v. Brown, 21 Pick. 96.] We do not intend by this citation to commit ourselves to all the doctrines it contains, but to show the great diversity of opinion which obtains among Courts of commanding authority on this subjcet. On principle we are not able to discover any reason for a more rigorous rule when the sheriff purchases at his own sale, than when any other agent sells to himself. In either case the purchaser takes a title which may be divested, and the property again sold at the instance of any one interested; and in the case of a sheriff this may be done in a summary way, by motion to the Court. In the case of Costillo & Keho v. Thompson, at the present term, we held that the summary remedy was confined to the parties to the suit, and that the creditors of the defendant might have relief in equity. Whether such relief could be had by creditors at large, or whether it would be confined to those who were judgment creditors at the time, it is not necessary or proper now to determine. Let the judgment be affirmed, Hunter v. Whitworth, &c. HUNTER v. WHITWORTH, ET UX, ET AL. 1. Where the father and mother intermarry after the birth of a child, the offspring of their illicit intercourse, and the wife die without issue subsequently born, the child becomes legitimate in virtue of the statutes, and the husband shall be tenant by the curtesy of the lands of which the wife was seized, and did not alienate previous to their marriage. Error to the Circuit Court of Jackson. THIS was an action of trespass, at the suit of the defendants in error, to try the title to a tract of land, particularly described, as well as to recover damages for the occupation thereof by the plaintiff. The cause was tried upon the general issue, a verdict returned for the plaintiffs, and judgment rendered accordingly. From a bill of exceptions sealed at the instance of the defendant, it appears that a patent was issued in due form, by the President of the United States, for the premises in question, to Sarah McCamack, in 1829; that she resided thereon from that time until her death, which occurred in 1841, and that the plaintiffs, except the husbands of the females, are her only, and illegitimate children. The plaintiff, William Hunter, is her youngest child, and was born in the year 1829. Sarah McCamack and the defendant intermarried between the years 1832 and 1835, and from that time defendant occupied the premises. Wm. Hunter had been recognized by Sarah McCamack and the defendant, as the child of the latter, and was generally so reputed in the neighborhood. Upon this proof, the court charged the jury, that although Wm. Hunter was the child of Sarah McCamack by the defendant, and was legitimated by the marriage of his parents, yet if they believed the facts above stated, they must find for the plaintiffs. It was also proved, that George W. Mitchell, one of the plaintiffs, executed a deed on the 22d October, 1839, pur Hunter v. Whitworth, &c. porting to bargain and sell all his claim "or pretended claim for one hundred and sixty dollars," to the defendant, that he held on the eighty acres of land on which he then lived, and gave him all right from that time to claim the land, and stipulated to give to the defendant peaceable possession of his field and house, with all appurtenances, on or before the 25th September next. The court charged the jury, that this deed formed no bar to the plaintiff's right to recover, if the other facts given in evidence were credited by them. C. C. CLAY, Sen'r, and C. C. CLAY, Jr. for the plaintiff in error, cited to the first point, Co. Litt. 435-8-9-40-1-7; Preston on Es. 473-8 82-5, 524; 1 Atk. Rep. 603; 1 Ves. Rep. 174; 1 Gie's Dig. 149, 153, 325; 3 Rand. Rep. 377.] Upon the second point, they referred to 1 Chitty's Pl. 56; Tillinghast's Adams on Eject. 275, 286; 4 Johns. Rep. 140; 13 Johns. Rep. 286; 1 Tenn. Rep. 237; 3 Ala. Rep. 747; 7 Id. 480.] S. PARSONS, for the defendants in error, to sustain the first charge of the court, cited 1 Co. Lit. 662, marg'l. The deed by Mitchell, if not void for uncertainty, passed no interest to the defendant, because the grantor had only a mere possibility, which was not grantable. [12 Johns. Rep. 201; 13 Id. 463; 14 Id. 193; 2 Hill's Rep. (N. Y.) 641.] COLLIER, C. J.-It is laid down in general terms, by elementary authors, that where a man marries a woman seized of an estate of inheritance in lands, and has by her issue born alive, which was capable of inheriting her estate, he shall on the death of his wife, hold the lands for his life as tenant by the curtesy. [2 Bla. Com. 126; Step. Com. 246; 1 Lomax, 65-6.] Whether this estate is a consequence of feudal tenure, is a point perhaps upon which all are not agreed; it is however, stated by all the text writers, that the husband is the natural guardian of the child, and as such, is in reason entitled to the profits of the land, in order to maintain it. "As soon, therefore, as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called Hunter v. Whitworth, &c. tenant to the curtesy initiate; and this estate being once vested by the birth of a child, was not suffered to determine by the subsequent death or coming of age of the infant." There are four requisites to constitute a tenancy by the curtesy, viz: Marriage, seizin of the wife, issue born alive, and the death of the wife. See the citations above. It has been held not necessary that there should be seizin and issue at the same time; and therefore if the wife become seized of lands during the coverture, be afterwards disseized and then have issue, the husband shall be tenant by the curtesy of those lands. So if the wife become seized after issue born, though the issue die before the seizure. [Jackson v. Johnson, 5 Cow. Rep. 74; see also, 2 Conn. Rep. 565; 5 Id. 236.] In Heath v. White, 5 Conn. Rep. 235, it was said, though the tenure by curtesy may have originated from the husband's obligation to support his children, yet the extent. of his interest is not measured by this reason for its introduction. He is entitled to hold for life, whether his children need his support or not, and whether they live an hour only or to old age. And it has been decided in this State, that a decree of divorce, a mensa et thoro, pronounced against the husband, does not bar him of the right of curtesy. [Smoot v. Lecatt, 1 Stew. Rep. 590.] sons. Where B. devised the whole of his estate to his daughter, "to her, her heirs and asigns forever," but if she should die without issue, his whole estate was to be sold by his executors, and the money arising therefrom, after his widow's decease, to be equally divided among his brother's and sister's The daughter married, and had issue which died during her life. Yet it was held that the husband was entitled to her estate, as tenant by the curtesy. [Buchanan v. Sheffer, 2 Yeates' Rep. 374.] We cite these cases to show the favor with which the law regards this description of estate, with what liberality it extends it, even beyond the object for which its introduction was mainly intended to provide; that it is protected, although the wife is absolved from the obligation of living with her husband, in consequence of some fault of his; and that even the express terms of a devise, shall be so construed as not to divest a tenancy by the curtetesy, if the husband's right once attached. Having said |