§ 3125 — Suit for specific performance of decedent’s contract for sale of real estate; proof and recording of contract; effect of deed

(a) Before suit shall be brought against an executor or administrator upon a written contract of the decedent under seal or under hand and attested by 1 or more witnesses for the conveyance of any real estate within the State, the person with whom such contract was made or who is entitled to the benefit thereof, either as heir, devisee, assignee or otherwise, shall cause the contract to be proved in the Court of Chancery in the county where the premises are situated and recorded in the recorder’s office therein and shall thereupon apply to the executor or administrator for the fulfillment of the contract. Thereupon, the executor or administrator, if the consideration of the premises has been paid or upon payment thereof, may exhibit to such Court a petition stating the facts and praying authority to convey the premises in execution of the contract. The Court may inquire into the case and order specific performance of the contract, according to equity and good conscience. A deed made pursuant to such order shall be as effectual as if executed by the decedent in the decedent’s lifetime.

(b) If the premises lie partly in 2 counties, the proof may be taken and the order made in either, but the contract must be recorded in each.

(c) If it is evident that the executor or administrator cannot fulfill the contract specifically or if it is a case in which a specific execution ought not to be accepted, proceedings under this section shall not be necessary.

(d) If a suit is brought against the true intent of this section, the Court may dismiss the action.

Legislative History

Code 1852, §§ 1859-1862; Code 1915, § 3399; Code 1935, § 3862; 12 Del. C. 1953, § 3125; 70 Del Laws, c. 186,, § 1