Burton v. Wolfe

4 Del. 221

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

The Court

set aside both the sale and inquisition, on the ground of want of legal notice, either of the inquisition or of the sale. The thirty-first rule of court requiring ten days’ notice of inquisitions, makes no provision for nonresident defendánts, and may be properly considered as extending to them until it is otherwise ruled. Yet it may in some, cases occasion unnecessary cost and trouble to serve personal notice on defendants residing out of the county, and it may he necessary to explain or modify the rule in this respect. Until that is. done the court must require personal notice to the defendant. (See post, Wolfe vs. Heathers.)

As to the advertisements of sale, the sheriff must be prepared to prove the putting up of at least one notice in each hundred, of the county according to law. The posting of such notices is expressly required by law, and must not be left in any doubt. . ■

As to the question whether the sheriff was bound to inquire on the three tracts sold by defendant, and out of his possession at the time of the inquisition, the court inclined strongly to the opinion that he was not bound to do so before condemnation and sale of the land remaining. If he were so bound it would often happen that lands so sold by a defendant, would have to be taken upon eligit to satisfy his debt before sale of his own land, though it is the admitted rule of equity and practice of courts of law, to levy the debt by such sale, before resort is had to other land bound by the judgment, but which have been aliened. If there be any supposed hardship' in selling defendant’s land without inquisition on all the land bound by plaintiff ’s judgment, it results from his own act of sale, and it would impose a greater hardship on his alienee to have the land extended for the payment of the vendor’s debts before his own land was taken.

Rule absolute.