Doe v. Roe , 1 Del. 464 ( 1834 )

The Court

directed a nonsuit. The plff.’s title accrues from the sheriff’s deed. It commenced with the sale, but was not perfected until a deed was executed; and though he has certain rights given to him by act of assembly as to rent from the time of sale and to possession in a summary way, the legal title is not in the purchaser until a deed is executed. In this state a deed has always been considered necessary to perfect the title by execution and enable the purchaser to bring ejectment, ^(a) The sheriff seldom receives the purchase money, or, at least, all of it, until the deed is made. The practice is to require a deposit of ten per cent, at the time of the sale. The act referred to was intended merely to do away the old actions of assize and writ of right. To apply it to such a case as this would be to enable the plff. to recover on a mere equitable title. And even that is not shown; for there is no proof of the payment of the purchase money but what is furnished by the deed, and that is after the demise.

Mr. Bayard suggested that the narr was against Roe, the nominal deft., and had not yet been altered for the present deft. Green, and asked if the court would not now permit an amendment. The chief justice said that the alteration was always presumed after the real deft, had appeared and entered into the common consent rule. The court would allow him to be substituted even after verdict and judgment.

The plff. was nonsuited.

(a) 4 Kent’s Com. 434. In those states in which the sheriff sells the land, instead of extending it to the creditor, he executes a deed to the purchaser, and it is held that the sheriif’s sale is within the statute of frauds, and requires a deed or note in writing of the sale, signed by the sheriff. Simonds vs. Catlin, 2 Caines Rep. 60; Barney vs. Patterson, 6 Harr, and Johns. 182. In Louisiana, the judgment must be recited in the deed; and it has been adjudged that the sheriff’s deed is essential to the title. Dufour vs. Camfranc, 11 Martin’s Rep. 607; Durnford vs. Degruys, 8 Martin, 222.