Hawthorn v. Sayers

16 Del. 177

• Court: Superior Court of Delaware
• Decided: February 15, 1894
• Status: Published

Opinion

Lore, C. J.,

delivered the opinion of the Court.

The question raised in the argument of the counsel for the defendant in this case has been passed upon before by this^Court under precisely similar circumstances and the rule was there made absolute; and we think there has been no special reason shown why that decisión should be reversed. It is therefore the opinion of a majority of the Court that the rule in this case ought to be made absolute.

The statute unquestionably makes it necessary to make the mortgagor a defendant, and suit cannot be brought unless he is made a defendant. The statute provides that notice shall be given, and advertisement left, at least ten days before the date, with the party defendant, if he resides in the county, if not, then, as provided otherwise. That provision of the statute has not been complied with. On careful consideration of the statute we cannot see why he should be ignored. He is made a necessary defendant. The language being a defendant, not specifying any particular defendant, we should have constant trouble in deciding whether a man having a special interest has made the application within the construction contended for. But if the sheriff knows he is a defendant, he knows precisely who he is to serve and there can be no question. It would avoid in that way the difficulty of deciding who should or who should not be served in a notice.

We think therefore that the rule should be made absolute and the sale set aside.