Morrison v. Taylor — 20 Del. 211

Majority

p. 211

Hannah A. Morrison vs. Daniel W. Taylor, surviving mortgagor.

Headnote

Levari Facias—Writ Lost; Substitute Ordered by Court; Return of

Sheriff Thereon—Practice.

I. Upon it appearing to the Court that a writ of levari facias was duly issued and delivered to the then Sheriff, and it further appearing that the said Sheriff, in pursuance of the directions of the said writ sold the lands and premises therein mentioned unto the petitioner, and that the petitioner has paid therefor; and it further appearing that the said Sheriff has executed and delivered unto the petitioner a deed of the lands and premises ; and it also appearing that the said writ of levari facias has been lost, the Court will order the Prothonotary to issue a substitute writ in lieu thereof, and to take the place of the one so lost; and will also order that the said Sheriff, as late Sheriff, be permitted to make return thereon of the said sale as of the term of court to which it should have been returned.

(February 14, 1903.)

Lore, C. J., and Boyce, J., sitting.

William, S. Hilles, petitioner.

Superior Court, New Castle County,

February Term, 1903.

p. 212

Sci. FA. SUR. LE MORTGAGE

(No. 151,

September Term, 1901).

The petition of William S. Hilles respectfully represents :

“ That the above stated judgment was duly recovered in this Honorable Court, being No. 151, September Term, A. D., 1901.

“ That thereafter a writ of levari facias, being No. 12 to the November Term, 1901, of said Court, was issued directed to Samuel A. McDaniel, then Sheriff of New Castle County.

“ That in obedience to the command in the said writ of levari facias contained, the said Sheriff did give due and public notice, and expose the lands and premises in the said writ mentioned at public sale and sold the same on the twenty-third day of October,

A. D. 1901, to your petitioner for the sum of two hundred dollars.

“ That your petitioner duly paid to the said Samuel A. McDaniel, then Sheriff, the said sum of two hundred dollars.

“ That thereafter the said Samuel A. McDaniel, Sheriff as aforesaid, by deed poll bearing date the fifteenth day of May, A. D.

1902, conveyed the said lands and premises to your petitioner in fee simple, as by the said deed poll recorded in the office for recording of deeds, &c., in and for New Castle County, in Deed Record A, Volume 19, page 506, &c., appears.

“ That the said writ of levari facias, being No. 12 to the November Term, 1901, has been in some way lost, and that the same has never been returned by the said Samuel A. McDaniel to this Honorable Court.

“ Your petitioner therefore prays that the Prothonotary of this Court may be directed to prepare a duplicate or substitute writ to take the place of the said writ so lost as aforesaid, and that the said Samuel A. McDaniel, late Sheriff, may be authorized to make return thereon of the said sale to your petitioner as aforesaid; said return to be made as to the November Term, 1901, of this Honorble Court; and that your petitioner may have such other or further relief as the nature of the case may require.

“ Wm. S. Hilles.”

p. 213

In support of the above petition Mr. Hilles cited:

White vs. Lovejoy, N. Y. Common Law Reports (3 Johnson), 448; Herman on the Law of Executions, Sec. 87.

“And now, to wit, this fourteenth day of February, A. D. 1903, the foregoing petition having been read, and it appearing to the Court that the said writ of levari facias in the said petition mentioned being No. 12 to the November Term, 1901, was duly issued and delivered to Samuel A. McDaniel, then Sheriff; and it further appearing that the said Samuel A. McDaniel, in pursuance of the directions of the said writ sold the lands and premises therein mentioned unto William S. Hilles, and that the said William S. Hilles has paid therefor; and it further appearing that the said Samuel A. McDaniel, then Sheriff, has executed and delivered unto the said William S. Hilles a deed of said lands and premises; and it further appearing that the said writ of levari facias has been lost.

“ It is thereupon ordered by the Court, That the Prothonotary of this Court do issue a substitute writ in lieu of, and to take the place of the one so lost as aforesaid.

“And it is further ordered, That the said Samuel A. McDaniel, late Sheriff, be permitted to make return thereon of the said sale as to the November Term, 1901, of this Court.”