In the Matter of the REAL ESTATE of Avery R. SHOCKLEY, Elizabeth Halbig, Mabel Shockley Griffith, Herbert C. Shockley, William H. Shockley, Elwood Shockley, Emma Shockley Townsend, Clara Shockley Barker, Albert Shockley, Mary Shockley Schetzler and Avis Shockley.
Proceeding by joint owners of land to set aside partition sale or to require purchaser to take subject to existing mortgage. The Orphans' Court, New Castle County, Layton, J., held that where purchasers of land at partition sale relied in good faith upon representations of court appointed trustees that land would be sold clear and free of the mortgage and confirmation of the sale would cost purchasers $1,100 plus interest, amount of existing mortgage which they would take subject to, in addition to amount they bid in, it was within court's equitable powers to set sale aside.
Order entered setting aside the sale.
[49 Del. 263] On November 4, 1954, Avery R. Shockley petitioned to partition a parcel of land in this County owned jointly by himself and others. The Court decreed a partition sale and appointed two Trustees to make sale in accordance with the Statute, Title 25 Del.C. § 729.
At the sale, the Trustees announced that the land would be sold free and clear of an existing mortgage. The lien of this mortgage was paramount to the title of the joint tenants. Relying upon the statements by the Trustees that the land would be sold free and clear of the mortgage, purchaser bid it in.
Certain of the joint tenants have moved in the alternative for a decree either
(1) That the purchaser take title subject to said mortgage or,
(2) That the sale be set aside.
W. Thomas Knowles, Wilmington, for petitioners.
Oliver V. Suddard, Wilmington, for trustees.
Title 25 Del.C. § 732 governs partition sales. It states as follows:
‘ A purchase of the premises * * * shall pass to the purchaser * * * all the estate and interest of the joint tenants, tenants in common or parceners * * * free and discharged from all liens and encumbrances except liens and encumbrances as may be paramount to the title of the joint tenants, tenants in common or parceners * * *. All liens and encumbrances on the estate or interest of
any joint tenants, tenant in common or parcener * * * shall be without change or priority, transferred to the interest or share of the joint tenant, tenant in common or parcener * * *.’
Counsel concede that the mortgage in question was paramount to the title of the joint tenants. This being so, this Court clearly is without power to enter a decree making any disposition of the mortgage and, it follows, the Trustees were equally without power to announce ...