EDMONDSON, v. JACKSON, 1 Del. Cas. 519 (1814)

Clayton’s Notebook, 36

EDMONDSON, Executor of Dolby v. JACKSON.

Court of Common Pleas of Delaware.
December 3, 1814.

This case came before the court on a rule to show cause why a sale by the sheriff under a fieri facias of an estate for life of the defendant’s in certain lands should not be set aside.

Hall objected to the validity of the sale on four grounds:

1. That there was a tender of the money previous to the sale.

2. That the sheriff did not give written public notice in each of the hundreds in the county.

Page 520

3. There was no inquiry whether the yearly rents and profits of the lands would be sufficient in seven years to satisfy the debt.

4. That the land was sold under a fieri facias whereas there ought to have been a venditioni exponas.

PER CURIAM.

As to the first objection, if the defendant does make a tender of the money before the sale, it is clearly wrongful and ought to be set aside; but in this case a legal tender is not made out. One Walcot at first told the sheriff that he would pay the money, but on sheriff’s replying that he had nothing but his words for that, he said he would attend at the sale and buy it in for the defendant, and desired that the land might not be struck off in his absence. The sale took place at ten o’clock, and when Walcot arrived, which was fifteen minutes after, the land had been struck off to the plaintiff, and the sale was over.

The second objection is not supported by the evidence.

The third and fourth depend upon the Act, 1 Del. Laws 110, c. 46a. We believe it has been determined in the Supreme Court that it is not necessary for the sheriff to hold an inquisition on an estate for life, and in Pennsylvania, where the Act is similar to ours, this question has been decided the same way.

The Court think, however, that the sheriff was rather too precipitate in striking off the land. He ought to have delayed the thing a little longer.

Rule made absolute.