TITLE 10

Courts and Judicial Procedure

Procedure

CHAPTER 49. EXECUTIONS

Subchapter VII. Writ of Possession


(a) If lands and tenements are sold by order of the Court of Chancery, or by virtue of execution process, and the defendant, or 1 or more defendants, or any person holding as tenant under such defendant, or defendants, by lease, or contract, posterior to such order, or to the date of the judgment whereon such execution was issued, is in possession of the premises sold; or if such defendant, or defendants, have died in possession of the premises sold within 1 year next preceding the day of sale, and the person in possession either has come into possession after such defendant, or defendants, and by means of his or her or their possession, or holds under, or through a person so coming into possession, the purchaser may have a writ of possession awarded, pursuant to such sale.

(b) In the event of a judicial sale at law or equity under and by virtue of the foreclosure of any mortgage, or execution upon a mechanic's lien, the purchaser at the judicial sale may have a writ of possession awarded against any person in possession of the real estate so sold, provided the rights of such person in possession arose posterior to the date of the mortgage, or the effective date of the mechanic's lien.

Code 1852, § 2462; 12 Del. Laws, c. 324, § 1; 13 Del. Laws, c. 463; Code 1915, § 4379; Code 1935, § 4837; 42 Del. Laws, c. 153; 10 Del. C. 1953, § 5011; 70 Del. Laws, c. 186, § 1.;

The Court of Chancery, if the sale is by its order, or the court out of which the execution issued, if the sale is by virtue of an execution, upon application of the purchaser, and oath or affirmation by the purchaser, or some credible person for the purchaser, in writing, stating a proper case for the awarding of such writ, shall grant a rule upon the defendant, or defendants, owner or owners of the premises sold, and also upon the person in possession of the premises, if any person other than the defendant is in possession, to show cause, on a day in the rule specified, why a writ of possession shall not be awarded for putting the purchaser in possession of the premises. A writ of possession shall not be issued without such rule made absolute.

Code 1852, § 2463; 12 Del. Laws, c. 324, § 2; 13 Del. Laws, c. 463; Code 1915, § 4380; Code 1935, § 4838; 10 Del. C. 1953, § 5012; 70 Del. Laws, c. 186, § 1.;

A rule for a writ of possession may be granted in the Superior Court at the term of the return of the sale or at any one of the next 3 succeeding terms thereafter, and in the Court of Chancery within 1 year from the return of the sale.

Code 1852, § 2464; Code 1915, § 4381; 33 Del. Laws, c. 239; Code 1935, § 4839; 10 Del. C. 1953, § 5013.;

The rule referred to in § 5013 of this title shall be served at least 2 days before the expiration thereof. If the sheriff or other person who is attempting to serve the rule is unable to serve the rule upon the defendant personally, service may be made in such manner as the court by order may direct or in such manner as may be prescribed by a rule of court.

Code 1852, § 2465; Code 1915, § 4382; Code 1935, § 4840; 10 Del. C. 1953, § 5014.;

If the defendant is in possession bona fide as tenant under, or by possession of another, a writ of possession shall not be awarded.

Code 1852, § 2466; Code 1915, § 4383; Code 1935, § 4841; 10 Del. C. 1953, § 5015.;

If the defendant is owner of an undivided share, the writ of possession shall be restricted to such share; and any holder of another share, or such holder's tenant, shall not be removed, or further disturbed than by putting the purchaser into peaceable possession of the undivided share of the defendant.

Code 1852, § 2467; Code 1915, § 4384; Code 1935, § 4842; 10 Del. C. 1953, § 5016; 70 Del. Laws, c. 186, § 1.;

On making the rule for a writ of possession absolute, the court may direct a reasonable stay of execution. If the person in possession is a tenant, execution shall be stayed until the usual expiration of the year of tenants, according to the custom of letting in the place, or neighborhood, wherein the premises are situate.

Code 1852, § 2468; Code 1915, § 4385; Code 1935 § 4843; 10 Del. C. 1953, § 5017.;

(a) A writ of possession may be according to the following form:

".......... County, ss. The State of Delaware, To the Sheriff of said County, greeting:

*  *  * *    We command you, that without delay you cause

*                *     to have peaceable possession of

*   L. S. *    (here insert description of the premises) which were

*                *   lately sold by virtue of a writ of execution issued

*  *  * *

out of our (here insert the style of the court) in the said County, returnable to............ term, 20....., at the suit of........... plaintiff vs....... defendant; and have this writ, with your doings thereon certified, at our said Court to be held at.........., on....... day of........ next.

Witness........... at........... the........... day of........... in the year of our Lord two thousand and...........

Prothonotary.''

(b) If there is legal exception to the sheriff, the writ may be directed to the coroner.

(c) If the sale is by order of the Court of Chancery, omit from the word "execution'' to the word "defendant,'' both inclusive, and instead thereof insert, "an order of our Court of Chancery, at........ in a certain cause between...... plaintiff and...... defendant.'' The writ may be adapted to the case by any necessary variation in the form.

Code 1852, §§ 2469, 2470; Code 1915, § 4386; Code 1935, § 4844; 10 Del. C. 1953, § 5018.;

Nothing contained in this subchapter shall deprive a purchaser of his or her remedy by a civil action in the nature of an action of ejectment, nor debar from such remedy a person removed from possession; and any proceedings under this subchapter, shall not be conclusive as to the title of either party.

Code 1852, § 2471; Code 1915, § 4387; Code 1935, § 4845; 10 Del. C. 1953, § 5019; 70 Del. Laws, c. 186, § 1.;