Citation Numbers： 9 Del. 543
Filed Date： 7/5/1873
Status： Precedential
Modified Date： 1/12/2023
Rule to show cause wherefore the sale by the Sheriff: on a writ oflevari facias on a mortgage returned at this term and heard before Wootten and Wales, Associate Judges, Gilpin, Chief Justice, absent. The affidavit on which it had been granted stated that the defendant resided out of the State, and that a printed copy of the advertisement of the sale was left for his tenant with his wife at their dwelling house on the premises sold, by the deputy of the Sheriff, but of which she failed to inform him, until several days afterward, and in less than ten days before the day of sale. But on the hearing it was proved that both the defendant and the tenant were on the premises, not, however, in view of the dwelling house, or of the Sheriff's deputy, at the time when he left the copy of the advertisement in the hands of the tenant's wife at the house. The objection was that in such a case the notice should have been served on the tenant personally, at least ten days before the day of sale, and that the leaving of a copy of *Page 544 the advertisement for him in the hands of his wife at the dwelling house on the premises was not sufficient.
The Court. The statute provides that when the defendant in the writ resides out of the county, as in this case, notice of the sale shall be served on the tenant of the premises, or if there be no tenant, that it shall be left at the mansion house, or other public place on the premises. Rev. Code, Amend. chap. 111, sec. 23, p. 679. And that of itself precludes the presumption that notice could be served in such a case, in any either manner than personally on the tenant of the premises, if there be one. `Besides the general rule in regard to the service of process, or legal notice, is that it must be served personally on the party, or the individual in question, unless some other mode is specially provided for that purpose in the statute, or has been otherwise established by long and recognized practice to the contrary. The rule must, therefore, be made absolute, and the sale set aside.