§ 8741 Legal proceedings to collect unpaid taxes.
The Office of Finance of New Castle County may, on or after January 1 in every year, institute proceedings against all persons in such County liable for the payment of any taxes payable to the County then remaining due and unpaid for any year or years prior thereto.
§ 8742 Where attachment proceedings brought.
(a) Legal proceedings under § 8741 of this title to collect unpaid taxes may be instituted in any court of competent jurisdiction.
(b) The proceedings shall be either by attachment, as provided in this subchapter, or by any other procedure authorized by law.
§ 8743 Affidavit and writ of attachment.
(a) In attachment proceedings under this subchapter, an affidavit shall be made and filed by the office of finance, or by some creditable person for it, stating that the defendant is justly indebted to the plaintiff in the sum of (stating the sum due for taxes) for the year (stating the year for which the taxes are due) with the prothonotary of the appropriate court and thereupon the prothonotary or Clerk of the Court of Common Pleas or the justice of the peace (as the case may be), shall issue a writ of attachment directed to the Sheriff of New Castle County commanding the Sheriff that the Sheriff attach all the lands and tenements, goods and chattels, rights and credits, moneys and effects of the defendant within New Castle County to answer the plaintiff in a cause of action wherein the sum of......... dollars for taxes for the year....... is demanded and that the Sheriff summon any garnishee or garnishees of the defendant found within the Sheriff's bailiwick to appear before the Superior Court or before the Court of Common Pleas or before the justice of the peace (as the case may be), on the......... day of........., A.D........ at....... o'clock in the....... to answer what goods and chattels, rights and credits, moneys and effects of the defendant may be in the defendant's hands and that the defendant have then and there the writ of attachment with the defendant's doings thereon duly endorsed. The writ of attachment shall be returnable within 15 days. There shall be omitted from the writ of attachment, if issued by the Clerk of the Court of Common Pleas or by a justice of the peace the words "lands and tenements.''
(b) Under the writ of attachment, if issued by the prothonotary, the sheriff shall be authorized to attach not only the lands and tenements belonging to the defendant, but such other lands and tenements, or any part thereof, theretofore belonging to the defendant against which the taxes sued for are a lien.
(c) If the sheriff is unable to find any property, rights, credits, moneys or effects of the defendant subject to attachment within the sheriff's bailiwick or in the hands of any person within the sheriff's bailiwick, then a further writ or writs of attachment may be issued until the sheriff shall find property, rights, credits, moneys or effects subject to attachment within the sheriff's bailiwick.
§ 8744 Notice of attachment to defendant.
(a) Notice of the attachment shall also be given to the defendant whenever practicable. If the defendant is a person, such writ may either be served upon the defendant personally or by leaving a copy thereof at the defendant's usual place of abode within New Castle County more than 6 days before the return thereof in the presence of an adult person, and if the defendant is a corporation, such writ may either be served personally on the president or 1 of the directors thereof or by leaving a copy thereof at its principal place of business in New Castle County more than 6 days before the return thereof in the presence of an adult person, or if the person does not reside in New Castle County, or if the corporation has no place of business in New Castle County, a copy thereof may be mailed in a sealed postpaid envelope directed to the last known address or place of business of the defendant more than 6 days before the return thereof.
(b) The day of mailing shall be deemed and taken as the day of the giving of the notice, but the failure to give the notice shall not divest the court or the justice of the peace before whom the proceedings were instituted of jurisdiction to hear and determine the proceedings.
§ 8745 Affidavit of defense; time limit.
The defendant in any attachment whose property has been attached at any time before the expiration of 10 days after the return of attachment may file in the court or with the justice of the peace where the writ is returnable an affidavit denying the demand of the plaintiff in whole or in part.
Code 1915, § 1155; 40 Del. Laws, c. 135, § 1; Code 1935, § 1351; 9 Del. C. 1953, § 8745.;
§ 8746 Judgment for want of an affidavit of defense.
In every case in which property of the defendant has been attached, and no affidavit is filed by the defendant, judgment on motion shall be entered in favor of the plaintiff and against the defendant for the amount shown to be due by the affidavit filed by the plaintiff together with the plaintiff's costs.
§ 8747 Trial.
Where property of the defendant has been attached and an affidavit has been filed by the defendant, the Superior Court or the Court of Common Pleas or the justice of the peace (as the case may be), shall proceed to direct an issue to be tried by a jury at the bar of the Superior Court or by a reference to 3 judicious and impartial citizens before the Court of Common Pleas to be appointed by the Court or before the justice of the peace to be appointed by the justice of the peace (as the case may be) for ascertaining whether there is a just demand and the amount thereof, and their verdict or finding shall be final and conclusive.
Code 1915, § 1155; 40 Del. Laws, c. 135, § 1; Code 1935, § 1351; 9 Del. C. 1953, § 8747.;
§ 8748 Discharge of property or garnishee upon posting bond.
If the defendant gives to the plaintiff a bond with sufficient surety to be approved by the sheriff before the return of the attachment or by the court or justice of the peace (as the case may be), after the return thereof to pay any judgment recovered against the defendant with costs, the property attached and the garnishee summoned shall be discharged.
§ 8749 Judgment and sale of property.
If a bond be not given, the court or justice of the peace (as the case may be), upon the entry of judgment against the defendant and upon the petition of the plaintiff, shall forthwith make an order for the sale of the property attached upon due notice or so much thereof as shall be necessary to pay the judgment with the costs, and shall render judgment against every garnishee summoned upon the attachment that has answered, confessing property in his, her or its hands or upon the verdict of a jury in the Superior Court against him or her or upon the finding against him or her on a hearing before the Court of Common Pleas or justice of the peace (as the case may be), if required to plead, as in other proceedings by attachment.
§ 8750 Notice of order to sell to lienholders of real estate.
If the property attached is in whole or in part real estate, the court making the order for the sale of property shall also order that notice be given to all persons holding liens and encumbrances against the real estate, as set out in the petition of the plaintiff but the failure to include in the petition or in the order the name of any person holding any such lien or encumbrance or the failure to give such notice to such person shall not be sufficient cause to set aside such sale, but the real estate so sold shall not be sold or discharged of liens and encumbrances existing against it held by any person not named in the order and not served with the notice. The notice shall be served personally upon such persons holding liens at least 6 days before the day of sale, by delivering to each of such persons a copy of the order of sale or by leaving a copy thereof at the usual place of abode of such persons within New Castle County in the presence of an adult person. In case it appears to the court that any of such persons holding liens has no known place of abode within New Castle County and cannot be served personally, the court shall order that publication of notice of the sale be made in such newspaper or newspapers published in New Castle County as shall in the judgment of the court best serve to bring to such person knowledge of the sale.
Code 1915, § 1155; 40 Del. Laws, c. 135, § 1; Code 1935, § 1351; 9 Del. C. 1953, § 8750.;
§ 8751 Return of residue to defendant.
The residue of property attached, after satisfying the judgment and costs, shall be restored or paid to the defendant without delay.
Code 1915, § 1155; 40 Del. Laws, c. 135, § 1; Code 1935, § 1351; 9 Del. C. 1953, § 8751.;
§ 8752 Exemption laws do not apply; those liable as garnishee.
The defendant in any writ of attachment under this subchapter shall not be entitled to the benefit of any of the exemption laws of this State. All persons, firms, associations, corporations, public and private, including banks, trust companies, savings institutions, loan associations and insurance companies and public officers and the agents, servants and trustees of the defendant shall be liable to be summoned as garnishee for which purpose service of the summons as provided in other attachment cases shall be sufficient to render the persons and the officers of the corporations subject to all the liabilities provided by law and the answer of such persons and of such officers so served with the attachment shall be enforced in the same manner as is now provided by law in other cases.
Code 1915, § 1155; 40 Del. Laws, c. 135, § 1; Code 1935, § 1351; 9 Del. C. 1953, § 8752.;
§ 8753 Purchase at Sheriff's Sale by agent of County.
New Castle County Council may authorize any person to bid at the sale of any real estate under this chapter and, in the event that such person is the highest and best bidder therefor, title thereto shall be taken in the name of New Castle County. County Council shall not authorize anyone to bid in excess of the aggregate amount of all taxes, service charges, penalties and obligations due to New Castle County, including costs incurred in the collection process.
§ 8754 Proceedings to collect taxes where delay may lose benefit of process.
The tax collecting authority may at any time prior to January 1 in any year institute proceedings against any person liable for the payment of any taxes payable to the county and due to it then remaining unpaid for the year in the manner provided for in this subchapter upon there being stated in the affidavit as provided in § 8743 of this title the further fact that the affiant has just caused to believe that the plaintiff will lose the benefit of the plaintiff's process by delay.
§ 8755 Penalty for removing attached property from County.
Whoever, without the consent of the plaintiff in any writ of attachment issued under the provisions of this subchapter, secretes, destroys or removes from the county any property seized under a writ of attachment issued under this subchapter, shall be fined in a sum equal to the value of the property secreted, destroyed or removed and shall also be imprisoned not more than 1 year.
Code 1915, § 1157; 33 Del. Laws, c. 82, § 7; Code 1935, § 1353; 9 Del. C. 1953, § 8755.;
§ 8756 Procedure upon failure of bonded defendant to pay judgment.
In every case in which the defendant has given to the plaintiff a bond in the manner provided for in this subchapter and judgment has been entered against the defendant, if the defendant fails to pay to the plaintiff the judgment with interest and costs within 20 days from the entry thereof, the plaintiff shall upon the expiration of the 20 days forthwith institute an action of debt upon the bond in some court of competent jurisdiction and promptly prosecute the same and upon the recovery of judgment therein forthwith proceed to the collection thereof by execution process or otherwise.
Code 1915, § 1158; 33 Del. Laws, c. 82, § 8; Code 1935, § 1354; 9 Del. C. 1953, § 8756.;
§ 8757 Procedure to confirm or set aside sale; second sale.
Upon the return of any order of sale the Superior Court shall, if real estate is sold, inquire into the circumstances and regularity of the proceedings relative to such sale and either confirm the sale or set it aside. If the Superior Court confirms the sale the sheriff shall deliver to the purchaser a certificate reciting the judgment recovered in the proceedings and the order of sale and setting forth the facts relative to such sale, and the purchaser shall have and be possessed of all rights in and to the real estate, subject to the right of redemption as provided in § 8758 of this title, as the defendant in the proceeding had on July 1 of the year for which the taxes were levied upon, which judgment was recovered in the proceeding, and the Superior Court shall have power to make all necessary orders and rules and to issue all writs which may be necessary to put the purchaser in possession of the real estate without delay. If the sale be set aside another order of sale may issue and be executed in the same manner and with like effect. Upon confirmation of such sale, the sheriff shall pay to the plaintiff the amount of the judgment with interest and costs and shall pay the balance thereof to such persons who were served with notice of such sale as then hold liens upon the lands and premises whether by way of taxes, mortgage, judgment, recognizance or otherwise, in accordance with the priority of their lien and the balance thereof shall be paid to the person who was the owner of the real estate at and immediately before the sale, or the sheriff may, after paying to the plaintiff the amount of the judgment with interest and costs, pay the balance thereof into the Superior Court. No sale shall be confirmed if the owner of the real estate or any person having an interest therein shall pay to the plaintiff or shall pay into the Superior Court for the use of the plaintiff the amount of the judgment together with interest and all costs.
§ 8758 Redemption of real estate by owner after sale.
The owner of any real estate sold under order of sale or the owner's legal representative may redeem the real estate so sold at any time within 60 days from the day the sale is confirmed by the Superior Court, by paying to the purchaser or the purchaser's legal representative the amount of the purchase price and 15 percent in addition thereto or if the purchaser or the purchaser's legal representative shall refuse to receive the same or does not reside within New Castle County or cannot be found within the County the owner may pay the amount into the Superior Court for the use of the purchaser.
§ 8759 Owner's petition and rights after redemption.
If the owner of any real estate sold under an order of sale or the owner's legal representative redeems the real estate, he or she may prefer to the Superior Court a petition setting forth that fact and thereupon the Superior Court, after hearing and determining the facts set forth in the petition, shall cause to be entered upon the record of the judgment, under which the real estate was sold, a memorandum that the real estate described in the proceedings upon which the judgment was entered has been redeemed and thereafter the owner shall hold such redeemed real estate subject to the same liens and in the same order of priority as they existed at the time of the sale thereof, excepting so far as the liens have been discharged or reduced by the application of the proceeds by the Sheriff from the sale.
§ 8760 Right of redemption by lienholder.
(a) If the owner or the owner's legal representative does not redeem the real estate within 60 days from the day the sale is confirmed by the Superior Court, any person who has an interest or lien upon any real estate so sold which was discharged by the sale may prefer a petition to the Superior Court at any time within 1 year from the day the sale is confirmed by the Superior Court setting forth the fact that he, she or it desires to redeem the real estate and that he, she or it is willing to pay into the Superior Court for the use of the purchaser the amount of the purchase price and 15 percent in addition thereto. The petitioner may also state in the petition that he, she or it is willing to pay into the Superior Court a further sum (stating the sum) for the benefit of any person who has an interest in or a lien upon the real estate which was discharged by the sale prior to the interest or lien of the petitioner, and the petitioner may also state in the petition such other and further facts as the petitioner may deem proper.
(b) Upon the expiration of 1 year from the day of confirmation of the sale of the real estate the Superior Court, after giving due notice to all petitioners, shall proceed to hear the same and after considering the interest and liens of the petitioners shall determine which of the petitioners, if any, shall be permitted to redeem the same and shall make an order accordingly, the petitioner so permitted to redeem the same then paying into the Superior Court the amount specified in his, her or its petition for the use of the parties entitled thereto, and complying with such other orders as the Superior Court shall make.
§ 8761 Procedure to obtain deed.
Any person having an interest in or a lien upon the real estate who redeems the same within the time and in the manner prescribed in § 8760 of this title, or any purchaser in case the real estate has not been redeemed or their respective representatives, may prefer a petition to the Superior Court setting forth the facts and applying for an order for a deed for the real estate, and the Superior Court, after hearing and determining the facts set forth in the petition, shall thereupon order the sheriff to execute, acknowledge and deliver to the person entitled thereto a deed granting and assuring unto such person the same estate and title as the defendant was seized of on July 1 of the year for which the taxes were levied upon under the judgment under which the real estate was sold was recovered (which date shall be specified in the order), discharged from all equity of redemption and from all liens and encumbrances held by persons against the property at the time of the sale who were given notice of such sale in the manner provided for in this subchapter and free and discharged of any right of or any inchoate right of dower or curtesy therein.