Caulk v. Caulk

8 Del. 81

• Court: Superior Court of Delaware
• Decided: July 5, 1864
• Status: Published

Opinion

The Court, Gilpin C. J., charged the jury.

After reading the twentieth section of chapter eighty-five of the Revised Statutes of the State in regard to the real estate of intestates, Rev. Code 282, observed that it expressly says that a sale of intestate real estate under the provisions of the act, shall pass to the purchaser of the same, all the estate, title and claim which the intestate, at his death, had in law or equity, in or to the said premises, and he shall hold the same paramount, among other things, to all right and claim of the heirs of the intestate, or any person claiming from or under them. This is the effect which it gives to the sale itself in so many words, and although the sale may not be conclusive in any particular case until its return and subsequent confirmation by the court, yet the confirmation but retroacts upon and relates back to the sale as made in the proceeding, and as the sale spoken of and contemplated in this passage of the statute. In this case the sale was made on the 23rd day of April 1863 under the order of the Orphans’ .Court and was afterward duly confirmed by that court on the 7th of September following, and therefore, all the estate, title and claim of James Caulk deceased, the intestate in this case, to the whole of the premises, passed to and vested in the purchaser of them, William Q-. Caulk, the defendant, and he thereby became seized and possessed in severalty as the sole owner of the entire premises from the day of the sale, and consequently the plaintiff was not entitled to, and could not recover any portion of the rent or proceeds of the premises after the sale, or after the 23rd day of April 1863. But as this was the only defence to the action, the plaintiff was entitled to one half of the rents and profits of the whole premises from the death of James Caulk in February or March 1861 up to"that time.