Subchapter V. Sale Under Execution
TITLE 10
Courts and Judicial Procedure
Procedure
CHAPTER 49. EXECUTIONS
Subchapter V. Sale Under Execution
§ 4971. Time of sale of goods and chattels.
Goods and chattels, taken in execution by a sheriff, or coroner, shall not be sold until the expiration of 30 days after the levy thereon and notice thereof to the defendant, unless the court, issuing the execution, shall, upon application of the plaintiff, or of the officer holding the execution, and on its being shown that the goods and chattels are of a perishable nature, or will create a charge by keeping, order the same to be sold sooner. Such order shall direct reasonable notice of the sale, according to the circumstances.
Code 1852, § 2443; Code 1915, § 4359; Code 1935, § 4817; 10 Del. C. 1953, § 4971.;
§ 4972. Notice of public sale of goods and chattels.
Public notice of the sale of goods and chattels by a sheriff, or coroner, under execution process, and of the day, hour, and place thereof, shall be given by advertisements posted, at least 10 days before the day of sale, in 5, or more, public and suitable places in the county, 2 of which, at least, shall be in the hundred of the defendant's residence, if the defendant resides in the county. One such advertisement shall, 10 days at least before the day of sale, be delivered to the defendant, and one to each plaintiff in the execution, and also to each plaintiff in any other execution, or executions, at the time in the hands of the sheriff, or coroner, or shall be left at the usual place of abode of such defendant and plaintiffs respectively, if there be such place of abode within the county. If any plaintiff in any such execution resides out of the county, such advertisement shall be delivered to the attorney of such plaintiff, if there is an attorney of record, and one such advertisement shall be transmitted to such plaintiff by mail, being enclosed and addressed to the plaintiff at the post office nearest the plaintiff's place of abode. Advertisement shall also, at least 10 days before the day of sale, be delivered to the defendant's landlord, or the landlord's agent, if there is such residing in the county. This section and § 4971 of this title do not apply to execution process issued by justices of the peace or the Court of Common Pleas.
Code 1852, § 2444; Code 1915, § 4360; Code 1935, § 4818; 10 Del. C. 1953, § 4972; 70 Del. Laws, c. 186, § 1.;
§ 4973. Notice of public sale of real estate.
(a) Public notice of the sale of lands and tenements under execution process, shall be given by advertisements posted, at least 10 days before the day of sale, in 10 of the most public places of the county where the premises are situated, setting forth the day, hour and place of sale, and what lands and tenements are to be sold, and where they lie. One of the advertisements shall be posted in the hundred in which the premises are located, and one, at least, in each of the hundreds which immediately adjoin the hundred. A like advertisement shall be delivered at least 10 days before the day of sale to the defendant, or left at the defendant's usual place of abode, if the defendant has a known place of abode in the county; if the defendant does not reside in the county, notice shall be served on the tenant, or if there is no tenant, shall be left at the mansion house or other public place on the premises. Section 4972 of this title respecting the delivery of an advertisement of the sale of goods and chattels under execution process, to each plaintiff in the execution, and also to each plaintiff in any other execution or executions, at the time in the hands of the sheriff or coroner, shall be in all respects applicable to the case of the sale of lands and tenements under execution process. Notice of such sale shall also be advertised for 2 weeks previous to the time of the sale in (1) a newspaper of general circulation published in the county wherein the property is situated and (2) a newspaper of general or limited circulation published nearest to the place where the property is situated. Both newspapers are to be selected by the sheriff. Not more than 3 insertions per week shall be made in any one newspaper. If there is only one newspaper published in the county at the time, the sheriff may select a newspaper in one of the other counties, and if there is no newspaper in the county the sheriff may select 2 in the other counties. The publishers of the newspapers shall not be paid for such advertising a higher rate than their ordinary charges for transient advertisements.
(b) In advertisements of notice of sale of real estate in newspapers, by the sheriff of any county in this State, under execution process, it shall be sufficient if the property to be sold is described therein in such manner that it may be readily identified. It shall not be necessary to describe the property by metes and bounds, or courses and distances. Nor shall it be necessary in any case to follow the description of the property in the writ of execution under which it is sold.
Code 1852, §§ 2445-2447; 15 Del. Laws, c. 478; 16 Del. Laws, c. 143; 18 Del. Laws, c. 680; Code 1915, § 4361; Code 1935, § 4819; 10 Del. C. 1953, § 4973; 57 Del. Laws, c. 142; 70 Del. Laws, c. 186, § 1.;
§ 4974. Place for public sale of real estate.
All sales of real estate, made by a sheriff by virtue of execution process, shall be made on the premises to be sold, or at the courthouse for the county in which the premises are situated or in Sussex County, at the Sussex County Sheriff's Office or at any public building in the county seat where the premises are situated.
Code 1852, § 2448; 16 Del. Laws, c. 540; 17 Del. Laws, c. 622; Code 1915, § 4362; Code 1935, § 4820; 10 Del. C. 1953, § 4974; 58 Del. Laws, c. 11; 72 Del. Laws, c. 194, § 1; 73 Del. Laws, c. 437, § 1.;
§ 4975. Officer conducting sale as barred from purchasing.
A sheriff, constable, or other person making sale of goods and chattels by virtue of any process, or order, shall not either directly, or by the agency of another, purchase any of such goods or chattels. Any person offending against this section, shall forfeit and pay double the value of the goods, or chattels, so purchased, to be recovered as debts of like amount are recoverable, one half for the use of the State, and the other half for the use of the person suing.
Code 1852, § 2449; Code 1915, § 4363; Code 1935, § 4821; 10 Del. C. 1953, § 4975.;
§ 4976. Deed of sheriff's sale.
Upon confirmation by the court of any sale of lands and tenements, made by virtue of execution process, the sheriff, or officer making the sale, shall execute, acknowledge and deliver to the purchaser a good and sufficient deed for the premises so sold.
Code 1852, § 2450; Code 1915, § 4364; Code 1935, § 4822; 10 Del. C. 1953, § 4976.;
§ 4977. Grantee's title.
The grantee in any deed, executed under § 4976 of this title, shall hold the premises therein conveyed, with all their appurtenances, as fully and amply, and for such estate and estates, and under such rents and services, as the person or persons, for whose debt, or duty, the property is sold, might, or could, do at or before the taking thereof in execution.
Code 1852, § 2451; Code 1915, § 4365; Code 1935, § 4823; 10 Del. C. 1953, § 4977; 70 Del. Laws, c. 186, § 1.;
§ 4978. Rent; time of entitlement; apportionment; proceedings.
(a) In any case of sale, the purchaser shall be entitled to rent for the premises sold from the day of sale. If such premises are in possession of a tenant under rent, such rent shall be apportioned, according to the time; the proportion for the time the rent has been growing due to the day of sale, being payable to the lessor or the lessor's assigns, and the residue to the purchaser. Each party shall have remedy by distress, or action, for such party's just proportion.
(b) A purchaser may recover his or her proportion of rent, although such rent is reserved by deed (as well as rent from the day of sale, in case no rent has been reserved) by a civil action for use and occupation.
(c) In any action, or proceeding, for such rent, any fair defense, which would have availed against the person as whose property the premises were sold, shall avail against the purchaser. If a rent reserved is not a fair rent for the premises, and the lease, or contract, is posterior to the order, or to the date of the judgment, in execution, or by virtue whereof the sale is made, the purchaser shall not be limited by the rent reserved, but may demand and recover a fair rent. If the crop is sold separately from the soil, the demand of the purchaser shall proportionally abate.
Code 1852, §§ 2452-2454; Code 1915, § 4366; Code 1935, § 4824; 10 Del. C. 1953, § 4978; 70 Del. Laws, c. 186, § 1.;
§ 4979. Petition for deed.
If a sale is made of lands and tenements by order of the Court of Chancery, or by virtue of an execution, and the officer making such sale, or the purchaser, is dead, or if such officer is out of office, and the purchase money is paid, without a deed being made pursuant to such sale, the purchaser, or other person having right under the purchaser by descent, devise, assignment, or otherwise, may prefer to the Superior Court, or Court of Chancery, at any term of such courts respectively, in the county wherein the premises are situate, a petition representing the facts, and praying for an order authorizing and requiring the sheriff, or if there is legal exception to the sheriff, the coroner of the county for the time being, to execute and acknowledge a deed conveying to the petitioner the premises so sold, or a just proportion thereof. Thereupon the Court may make an order touching the conveyance of the premises according to justice and equity.
Code 1852, § 2455; Code 1915, § 4367; Code 1935, § 4825; 10 Del. C. 1953, § 4979; 70 Del. Laws, c. 186, § 1.;
§ 4980. Deed executed after petition; effect on title.
A deed, executed pursuant to an order made under § 4979 of this title, shall pass to the grantee therein all the title and estate to and in the premises therein conveyed, which, in pursuance of the sale, and of the execution, or order by virtue whereof such sale was made, can, or ought to be passed. If the person, to whom such deed is executed, is not entitled to the same, according to justice and equity, or if a greater estate is conveyed to the grantee than the grantee is justly entitled to, such deed, or order, shall not prejudice any person having right; but such deed may be decreed to be upon trust, or any person, having right, may be otherwise relieved according to equity and good conscience.
Code 1852, § 2456; Code 1915, § 4368; Code 1935, § 4826; 10 Del. C. 1953, § 4980; 70 Del. Laws, c. 186, § 1.;
§ 4981. Recordation of petition and order; evidentiary value.
An order made upon a petition, being duly certified, the petition and order shall be recorded in the office of the recorder of deeds for the county wherein the premises are situate; and such record, or a certified copy thereof, shall be competent evidence of such petition and order.
Code 1852, § 2457; Code 1915, § 4369; Code 1935, § 4827; 10 Del. C. 1953, § 4981.;
§ 4982. Deed after execution by sheriff's predecessor.
A deed for lands and tenements, sold by virtue of a writ of venditioni exponas, directed to the predecessor of the sheriff at the time in office, such predecessor having seized and taken in execution such lands and tenements, shall be valid in law, without petition to, or order of, any court for making such deed.
Code 1852, § 2458; Code 1915, § 4370; Code 1935, § 4828; 10 Del. C. 1953, § 4982.;
§ 4983. Deed by sheriff after expiration of term.
Whenever an execution for sale of lands and tenements shall be directed and delivered to a sheriff in office, whose term expires before the confirmation of the sale made under and by virtue of the execution, or whose term expires after confirmation of the sale, but before the execution and acknowledgment of the deed to be made in pursuance thereof, then and in either case the sheriff making the sale may as late sheriff make, execute and acknowledge a deed for the lands and tenements so sold to the purchaser thereof in pursuance of the confirmation, and the deed so made, executed and acknowledged by the sheriff as late sheriff shall be good and valid in law. Such deed shall be made, executed and acknowledged by the sheriff within 2 years from the date of the confirmation of the sale.
17 Del. Laws, c. 617, § 1; 19 Del. Laws, c. 247, § 1; Code 1915, § 4371; Code 1935, § 4829; 10 Del. C. 1953, § 4983; 70 Del. Laws, c. 186, § 1.;
§ 4984. Deed by sheriff appointed to fill vacancy.
Whenever an execution for sale of lands and tenements is directed and delivered to a sheriff in office who dies before the confirmation of the sale made under and by virtue of the execution, or who dies after confirmation of the sale but before the execution and acknowledgment of the deed to be made in pursuance thereof, then and in either case the sheriff appointed to fill the vacancy may make, execute and acknowledge a deed for the lands and tenements so sold to the purchaser thereof in pursuance of the confirmation, and the deed so made, executed and acknowledged by that sheriff shall be good and valid in law.
17 Del. Laws, c. 617, § 1; 19 Del. Laws, c. 247, § 1; 19 Del. Laws, c. 771, § 1; Code 1915, § 4372; Code 1935, § 4830; 10 Del. C. 1953, § 4984; 70 Del. Laws, c. 186, § 1.;
§ 4985. Discharge of liens upon execution sale; exceptions.
Real estate sold by virtue of execution process shall be discharged from all liens thereon against the defendant, or against one or more of the defendants, if there is more than one, whose property such real estate is, except such liens as have been created by mortgage or mortgages prior to any general liens; and with respect to such, the sale shall be a discharge to the extent to which the proceeds thereof may be legally applicable to a judgment or judgments obtained for the debt, to secure the payment of which the mortgage or mortgages respectively, if there is more than one, appear to have been given, and the real estate shall also be discharged from all right of dower and curtesy therein of any defendant in the execution.
14 Del. Laws, c. 94, § 1; Code 1915, § 4373; 36 Del. Laws, c. 269, § 2; Code 1935, § 4831; 10 Del. C. 1953, § 4985.;
§ 4986. Payment into court of unclaimed proceeds from execution sale; disposition by court.
Whenever the sheriff or any other officer cannot pay over the proceeds from sale under execution process because the person or persons entitled to the same or any part thereof is or are absent from the State, unknown or incompetent to receive the same or where there is any lien by mortgage, judgment or recognizance (not being the first) against the defendant, or some one or more of them, if there is more than one, in the process referred to in § 4985 of this title, with condition other than for the payment of money, or for the payment of money as or in the nature of an annuity, or for the payment of interest to one or more persons during their lifetime and the principal at their death to some other person or persons, or otherwise, such proceeds from sale under execution process that cannot be paid over because the person or persons entitled to some or any part thereof is or are absent from the State, unknown or incompetent to receive the same, and such part of the proceeds of sale as shall be legally applicable to any such lien as set out above shall be paid into the court, out of which the process issued, and shall be invested by the court, or otherwise disposed of for the benefit of the parties interested, as shall be just and proper under the circumstances. Such payment into court shall discharge the officer selling the property from all liability for the money so paid.
14 Del. Laws, c. 94, § 2; 19 Del. Laws, c. 780; Code 1915, § 4374; Code 1935, § 4832; 10 Del. C. 1953, § 4986; 50 Del. Laws, c. 263, § 1.;
§ 4987. Sheriff's record of sale proceeds.
The sheriff shall, in proper books, keep a record of the disposition of all moneys arising from the sale of property under execution process, when the same is applicable otherwise than to executions in the sheriff's hands, as provided in § 2106 of this title.
16 Del. Laws, c. 144; Code 1915, § 4375; Code 1935, § 4833; 10 Del. C. 1953, § 4987; 70 Del. Laws, c. 186, § 1.;