Subchapter XI. Scire Facias on Mortgage
TITLE 10
Courts and Judicial Procedure
Procedure
CHAPTER 49. EXECUTIONS
Subchapter XI. Scire Facias on Mortgage
§ 5061. Occasion for suing out writ; parties and notice.
(a) Upon breach of the condition of a mortgage of real estate by nonpayment of the mortgage money or nonperformance of the condition stipulated in such mortgage at the time and in the manner therein provided the mortgagee, the mortgagee's heirs, executors, administrators, successors or assigns may, at any time after the last day whereon the mortgage money ought to have been paid or other conditions performed, sue out of the Superior Court of the county wherein the mortgage premises are situated a writ of scire facias upon such mortgage directed to the sheriff of the county commanding the sheriff to make known to the mortgagor, and those persons described in subsection (b) of this section and such mortgagor's heirs, executors, administrators or successors that the mortgagor or they appear before the Court to show cause, if there is any, why the mortgaged premises ought not to be seized and taken in execution for payment of the mortgage money with interest or to satisfy the damages which the plaintiff in such scire facias shall, upon the record, suggest for the nonperformance of the conditions.
(b) In addition to the mortgagor, and such mortgagor's heirs, executors, administrators or successors, the following persons shall be necessary parties in every mortgage foreclosure action:
(1) Record owners acquiring title subject to the mortgage (terre-tenants) which is being foreclosed upon; and
(2) Persons having an equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale pursuant to § 8771 et seq. of Title 9.
(c) The following persons whose real or equitable interests in the real estate may be adversely affected by plaintiff's cause of action shall not be deemed to be necessary parties and shall not be required to be joined as a defendant in mortgage foreclosure actions: (1) Lien holders; and (2) tenants seised of an estate for years or at will. Notice in writing, however, shall be given to the above classes of persons in the manner prescribed from time to time by the civil rules of the Superior Court of the State. It is the intent of this subsection that written notice be deemed sufficient in lieu of joinder to protect the property interests of the above classes of persons in the mortgaged real estate since those property interests are created and defined by the legal operations of existing statutes and law.
(d) The Superior Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof, modes of proof and the manner of notice to persons having an interest in the real estate which relate to mortgage foreclosure proceedings.
(e) Those persons identified in subsection (b) of this section need not be joined as necessary parties in a mortgage foreclosure action when their interest arises subsequent to the filing of the mortgage foreclosure action. Any person acquiring an interest defined in subsection (b) of this section subsequent to the filing of the foreclosure action and at least 30 days prior to the sheriff's sale scheduled in the cause shall be given written notice in accordance with the rules of the Superior Court. Any person acquiring a property interest in real estate within 30 days prior to the sheriff's sale scheduled in the cause shall not be entitled to receive written notice of the sale, the public records of the foreclosure being sufficient notice.
Code 1852, § 2484; Code 1915, § 4399; Code 1935, § 4857; 10 Del. C. 1953, § 5061; 65 Del. Laws, c. 314, § 1; 70 Del. Laws, c. 186, § 1.;
§ 5062. Land divided by county line; venue of action.
Whenever the dividing line between any 2 counties of this State runs through a tract of land conveyed in mortgage, a writ of scire facias may be sued out in either county in which any part of such tract is situated, directed to the sheriff of the county in which such writ is sued out. The sheriff may make service of the writ, notwithstanding any person or persons liable to such service in and residing in this State may live outside the sheriff's bailiwick. The Superior Court of the county wherein such action is brought may give definitive judgment upon such scire facias with the same effect as if the lands lay wholly within such county.
18 Del. Laws, c. 221; Code 1915, § 4400; Code 1935, § 4858; 10 Del. C. 1953, § 5062; 70 Del. Laws, c. 186, § 1.;
§ 5063. Judgment upon default.
If the defendant fails to appear at the return day of the scire facias, definitive judgment therein, as well as all other judgments to be given upon such scire facias, shall be entered that the plaintiff have execution by levari facias directed to the proper officer.
Code 1852, § 2486; Code 1915, § 4402; Code 1935, § 4860; 10 Del. C. 1953, § 5063.;
§ 5064. Award of levari facias when county line divides land.
The writ of levari facias awarded upon any judgment for the sale of any such tract, as mentioned in § 5062 of this title, shall be directed to the sheriff of the county wherein the judgment was given. The sheriff shall proceed in the same manner as is prescribed in other cases of the sale of lands upon such execution process, and may on the writ sell the tract of land in the whole, and altogether at one and the same time, and make return thereof to the court out of which the writ is issued. Upon confirmation of such sale by the court the sheriff shall make a deed to the purchaser conveying the whole as fully as if the same had been wholly situated in his or her bailiwick. Any deed so made shall be recorded in each of the counties in which the land is situated. Notice of any such sale shall be set up in at least 5 of the most public places in each of the hundreds in which the land or any part thereof is located.
18 Del. Laws, c. 221; Code 1915, § 4403; Code 1935, § 4861; 10 Del. C. 1953, § 5064; 70 Del. Laws, c. 186, § 1.;
§ 5065. Procedure after award of levari facias.
Under a levari facias, awarded as described in this subchapter, the mortgaged premises shall be taken in execution, and after notice given in the same manner as in other cases of the sale of lands upon execution process, shall be exposed to public sale, and upon such sale and confirmation thereof, shall be conveyed by deed to the purchaser; or if there be no sale for want of bidders, return shall be made accordingly, and thereupon a liberari facias may issue and be executed in the same manner, and with like effect, as provided in other cases of the sale of lands upon execution process.
Code 1852, § 2487; Code 1915, § 4404; Code 1935, § 4862; 10 Del. C. 1953, § 5065.;
§ 5066. Title of purchaser.
The person to whom any lands and tenements shall be sold, or delivered, under § 5065 of this title, and such person's heirs and assigns, shall hold the same, with their appurtenances, for such estate, or estates, as they were sold, or delivered for, discharged from all equity or redemption, and all other incumbrances made and suffered by the mortgagor, the mortgagor's heirs, or assigns; and such sale shall be available in law. Such sale, or delivery, shall not create any further term, or estate, to the vendees, mortgagees, or creditors, than the lands and tenements were mortgaged for.
Code 1852, § 2488; Code 1915, § 4405; Code 1935, § 4863; 10 Del. C. 1953, § 5066; 70 Del. Laws, c. 186, § 1.;
§ 5067. Disposition of surplus from sale proceeds.
Any surplus of the proceeds of sale of mortgaged premises, after satisfying the principal debt in the mortgage, with interest and costs, shall be rendered to the owner of the premises at the time of sale. Until the surplus is so rendered, the officer making the sale shall not be discharged upon the record of the court to which the sale is returnable.
Code 1852, § 2489; Code 1915, § 4406; Code 1935, § 4864; 10 Del. C. 1953, § 5067.;