Hagan v. Chapman — 17 Del. 445

Majority

p. 445

Arthur Hagan and Henry C. Ellis, trading as Arthur Hagan & Co., vs. Rebecca L. Chapman, who was sued with Frank A. Chapman, late trading as R. L. Chapman & Son.

Headnote

Dower—Execution—Levy and Inquisition—Rule to Show Cause Why Levy and Return Should Not Be Set Aside —Made Absolute.

Dower before assignment, may not be taken in execution ; and a levy thereon will be set aside.

(December 3, 1898.)

Eore, C. J., and Spruance and Grubb, J. J., sitting.

Henry C. Conrad for defendant.

(Plaintiff was unrepresented by counsel.)

Superior Court, New Castle County,

November Term, 1898.

Judgment No. 415 to February Term, 1898. Debt $59.63, with interest from September 15, 1896. Entered February 14, 1898.

Upon above judgment a Fieri Facias was issued, and under the same the sheriff levied upon the unassigned dower right or interest held by Rebecca E- Chapman in certain real estate in the City of Wilmington, and afterwards an inquisition was duly held and returned.

Rebecca E. Chapman preferred a petition to the Superior Court at the November Term, A. D., 1898, asking that the levy made under said Fieri Facias and the return thereon together with the inquisition held under the same be set aside.

Rule granted to show cause why levy, inquisition and return should not be set aside.

Afterwards the matter coming on to be heard the plaintiff in the rule submitted the following brief :

p. 446

Dower, before assignment, may not be taken in execution.

Graham vs. Moore, 5 Harrington, 318 . Davis vs. Wetherell, 13 Allen, 60 .

In order that a judgment should create a lien upon the real property of the debtor it is first necessary that it should be capable of collection by execution against such property.

A judgment which'by its terms cannot be enforced against the property of a party cannot become a lien thereon.

In re Boyd, 4 Sawyer (U. S. Circuit Ct.) 262; Schaffer vs. Cadwallader, 36 Penna. St., 126; Black on Judgments, Vol. 1, page 407.

A judgment against a municipal corporation is not a lien on its real estate, because no execution can issue against the land. Black on Judgments, Vol 1, page 407; Schaffer vs. Cadwallader, 36 Penna. St., 126.

Rule made absolute.