State v. Huxley

4 Del. 343

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

Opinion

Per Curiam.

—We consider that the plea interposes no objection to the recovery of the whole amount for which the jury have found their verdict.

The act of assembly declares that the acceptor or assignee of intestate lands shall take, by force of the assignment in the Orphans’ Court, all the title which the intestate had at the time of. his death, and shall hold the same paramount to all incumbrances created by any heir of the intestate, or by any person claiming under him: therefore, if Thomas Temple had even confessed a judgment in this court, prior to the assignment in the Orphans’ Court, the purchaser or assignee under the Orphans’ Court, would take all the title of the intestate without reference to such lien.

This is the case of an attachment laid upon the land, and not upon the recognizance. Whether the share of a party under the recognizance might not be attached in the hands of the recognizor; or whether the creditor would have any remedy in a court of equity, are not questions now before the court. The attachment was laid, in this case, before the assignment of the land in the Orphans’ Court,; but on this assignment the entire interest of Thomas Temple in the land was divested; all-liens created by him, or acquired by others on his interest in the land were removed; and that interest was changed into money and secured by the recognizance.

Demurrer overruled.