Shockley's Real Estate, In re
Decision Date | 19 May 1955 |
Citation | 114 A.2d 533,10 Terry 262,49 Del. 262 |
Parties | , 49 Del. 262 In the Matter of the REAL ESTATE of Avery R. SHOCKLEY, Elizabeth Halbig, Mabel Shockley Griffith, Herbert C. Shockley, William H. Shockley, Elwood Shockley, Emma Shockley Townsend, Clara Shockley Barker, Albert Shockley, Mary Shockley Schetzler and Avis Shockley. Orphans' Court of Delaware, New Castle County |
Court | Delaware Family Court |
On November 4, 1954, Avery R. Shockley petitioned to partition a parcel of land in this County owned jointly by himself and others. The Court decreed a partition sale and appointed two Trustees to make sale in accordance with the Statute, Title 25 Del.C. § 729.
At the sale, the Trustees announced that the land would be sold free and clear of an existing mortgage. The lien of this mortgage was paramount to the title of the joint tenants. Relying upon the statements by the Trustees that the land would be sold free and clear of the mortgage, purchaser bid it in.
(2) That the sale be set aside.
W. Thomas Knowles, Wilmington, for petitioners.
Oliver V. Suddard, Wilmington, for trustees.
Title 25 Del.C. § 732 governs partition sales. It states as follows:
Counsel concede that the mortgage in question was paramount to the title of the joint tenants. This being so, this Court clearly is without power to enter a decree making any disposition of the mortgage and, it follows, the Trustees were equally without power to announce at the sale that the land would be sold free and clear of the mortgage.
Judicial sales of this kind are subject to the principle of Caveat Emptor. The purchaser is not entitled to rely upon representations concerning title made by Trustees. In Re Estate of Wheeler, 11 Del.Ch. 469, 473, 101 A. 865. If the sale were confirmed, the purchaser...
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Brown's Real Estate, In re
...upon a party an absolute legal right to a resale. Such matters lie within the sound discretion of the Chancellor. In re Shockley's Real Estate, 10 Terry 262, 114 A.2d 533; Leahy v. Leahy, 116 Misc. 330, 189 N.Y.S. 897; Taylor v. Wilson, 233 Ala. 182, 170 So. 833; Kiebel v. Leick, 216 Ill. 4......