Buker v. Gibson

39 A. 784, 17 Del. 112, 1 Penne. 112, 1897 Del. LEXIS 43

• Court: Superior Court of Delaware
• Decided: December 1, 1897
• Status: Published

Opinions

Spruancp J:—

The objection made to this affidavit is that, except in the caption of the affidavit, it is not stated that Ananias Ennis is the terre tenant, or how he became a terre tenant.

We have given this matter careful consideration, and the majority of the Court are of the opinion that this affidavit is sufficient.

So far as my experience goes, it has never been the practice in ordinary suits on judgments or mortgages where terre tenants are made parties defendant, to make any allegations respecting them in the body of the affidavit. The names of the plaintiff and defendant and terre tenant are stated in the caption of the affidavit, and without making any allegations whatever in respect to the terre tenant the party swears, as in this action, that “ hereto annexed is a duly certified transcript of the judgment (or mortgage) sued upon in this action and that the sum demanded is justly and truly due.” We think this follows the ordinary practice and that it would be dangerous to require specific allegations as to how the terre tenant became such, etc.

This decision can do no harm as the time has not yet expired in which an affidavit of defense can be filed.

We therefore hold that the affidavit is sufficient.