Delaware General Assembly

CHAPTER 457.

OF JUDGMENTS.

AN ACT LIMITING JUDGMENT LIENS UPON REAL ESTATE IN KENT AND SUSSEX COUNTIES, AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. No judgment for the recovery of money hereafter entered or recorded in the Superior Court of this State in either Kent County or Sussex County, whether rendered by said court, or transferred thereto from the Court of Errors and Appeals, or from the dockets of a justice of the peace, or operative in either of said counties by virtue of any writ of testatum fieri facias, or otherwise, howsoever recorded in said court, shall continue a lien upon real estate for a longer term than ten years next following the day of entry or recording of such judgment; or in case the whole or any part of the money for which such judgment shall be recovered or rendered shall not be due and payable at or before the time of its entry or recording the day on which such money shall have become wholly due and payable unless within the said term of ten years, the lien of such judgment shall be renewed and continued by a written agreement, signed by the plaintiff or plaintiffs therein, or the assignee or assignees thereof, or the person or persons to whose use such judgment shall have been marked, or his, her or their executors or administrators, and by the defendant or defendants therein, or his, her or their executors or administrators, and the terre tenant or terre tenants of the real estate bound by such lien, or, in case of a judgment upon a mechanics' lien, the terre tenant or terre tenants of such real estate, or by the attorneys of record of the respective parties to such judgment, or of the persons interested therein as aforesaid, in substantially the following form, after stating the title of the cause, to wit : "It is agreed that the lien of this judgment shall be extended for the term of ten years," filed in the office of the prothonotary and by him minuted and certified upon the record of said judgment, or of the testatum fieri facias, as the case may be, or by scire facias, in manner hereinafter set forth; provided, however, that if a writ of scire facias shall be sued out of said court before the expiration of said term of ten years, and said term shall expire during the pendency of the proceedings upon the said scire facias, the lien of said judgment shall continue until final determination by said court of the rights of the respective parties thereto, or until the discontinuance or dismissal of such scire facias; and provided further, that if final judgment in such scire facias shall be rendered against the plaintiff or plaintiffs therein, and a writ of error shall be taken and the Court of Errors and Appeals shall render final judgment thereon in favor of the plaintiff or plaintiffs in error, the lien of such original judgment shall be restored and continued, but such restoration or continuance of said lien by such final judgment by the Court of Errors and Appeals shall not in any manner affect or be operative as against bona fide purchaser, mortgagee, or judgment creditor who shall become such after the entry of such final judgment by the Superior Court upon such scire facias and before the noting upon the record of such final judgment in such scire facias of the taking of such writ of error.

Section 2. Immediately from and after the minuting and certifying upon the record of such original judgment, or of such testatum fieri facias, as the case may be, of such agreement for the existence of the lien thereof, or the entry of final judgment in the Superior Court in favor of the plaintiff or plaintiffs in such writ of scire facias, or the entry of final judgment in the Court of Errors and Appeals restoring and continuing such lien, such lien shall continue for the further term of ten years next thereafter unless sooner lost by final judgment of the Court of Errors and Appeals. And in like manner and with like effect such liens so renewed or restored and continued may, by a like agreement filed and minuted and certified upon the record of such original judgment, or of such testatum fieri facias, as the case may be, as aforesaid, before the expiration of the extended term or by final judgment in scire facias as aforesaid, be again renewed or restored and continued for the further term of ten years, and so from time to time as often as shall be found necessary.

Section 3. After the first day of January, A. D. nineteen hundred and five, no real estate shall be seized or taken by virtue of execution process upon any judgment for the recovery of money entered or recorded in the Superior Court of this State in either Kent County or Sussex County prior to the first day of January, A. D. nineteen hundred and five, and wholly due and payable on or before the day and year last aforesaid, and from and after the said first day of January A. D. nineteen hundred and five, the lien of such judgment upon real estate shall be lost unless prior to that time such lien shall be renewed and continued by agreement filed or by scire facias sued out in manner as provided in the preceding sections of this act.

No real estate shall be seized or taken by virtue of execution process upon any other judgment, for the recovery of money heretofore entered or recorded in said Court, after the expiration of the term of ten years next following the day of entry or recording of such judgment; or in case the whole or any part of the money for which such judgment was recovered or rendered was not clue and payable at or before the time of its entry or recording, the day on which such money became or shall become wholly due and payable, and at the expiration of said term of ten years the lien of such judgment upon real estate shall be lost, unless within the said term of ten years such judgment shall be renewed and continued by agreement filed or by scire facias sued out in manner as provided in the preceding sections of this act. All the provisions of the preceding sections not inconsistent with the provisions of this section shall be applicable for the renewal or restoration and continuance and preservation of the lien of the judgments hereinbefore mentioned in this section and as to the force and effect and the loss of such lien.

Section 4. In case the lien upon real estate of any judgment for the recovery of money heretofore or hereafter entered or recorded in the Superior Court of this State in either Kent County or Sussex County shall be lost or interrupted under the provisions thereof and the said judgment shall thereafter be revived by scire facias, the same when so revived shall be a lien upon the real estate of the defendant or defendants in the original judgment, or, in case of judgment upon a mechanic's lien upon the real estate originally bound by such mechanic's lien from the time of such revival, but such lien shall not relate back, nor shall it in any manner affect any prior bona fide purchaser or mortgagee from or judgment creditor of such defendant or defendants or terre tenant or terre tenants.

Section 5. A writ of scire facias for the renewal and continuance of the lien upon real estate of a judgment under the provisions of this act may be sued out of the Superior Court of this State in the county in which such original judgment has been or shall be entered or recorded by the plaintiff or plaintiffs in such judgment, or the assignee or assignees thereof, or the person or persons to whose use such judgment has been or shall be marked, or his, her or their executors or administrators against the defendant or defendants in such judgment and the terre tenant or terre tenants of the real estate bound by such lien, or, in case of a judgment on a mechanic's lien, the terre tenant or terre tenants, directed to the Sheriff of the county in which such writ shall issue, commanding him to make known to the defendant or defendants therein that he, she or they appear before said court and show cause, if any there be, why the lien of such judgment should not be renewed and continued. And in all other respects the practice, pleadings and procedure upon such scire facias shall conform as nearly as may be to the practice, pleadings and procedure on other writs of scire facias sued out of said court upon judgments under existing Law.

If final judgment he rendered for the plaintiff or plaintiffs in such writ, it shall be that the lien of such original judgment shall stand renewed and continued for the term of ten years next following the day of the entry of such judgment in the said action of scire facias, and that the plaintiff or plaintiffs therein have execution thereon as in other cases during said term of ten years.

Section 6. The provisions of the foregoing sections of this act shall not operate to defeat the due enforcement of any writ of execution under any judgment for the recovery of money heretofore or hereafter entered or recorded in the Superior Court of this State, in either Kent County or Sussex County, by virtue of which real estate shall be seized or taken, if such writ of execution shall be issued before the first day of January, A. D. nineteen hundred and five, or before the expiration of the said term of ten years, as the case may be, nor shall they apply to any judgment heretofore or hereafter entered by virtue of a warrant of attorney or otherwise, by confession in said court in either Kent County or Sussex County upon any bond or obligation of indemnity, or for the faithful discharge of duty, or with conditions other than for the payment of money, or to any judgment upon a mortgage or recognizance, nor shall they in any manner apply to or affect the lien of any judgment on a bond accompanied

by a mortgage, and to secure which bond such mortgage is has been or shall be given, except as to real estate not included in such mortgage.

Section 7. No judgment hereafter entered by virtue of a warrant of attorney in the Superior Court of this State, in either Kent County or Sussex County, upon any bond or obligation with condition other than for the payment of money, shall be or operate as a lien upon real estate until said bond or obligation and warrant of attorney, or a copy thereof, certified under the hand of the prothonotary and the seal of said court, shall be filed in the office of such prothonotary. It shall be the duty of the prothonotary, at all times thereafter, to safely keep such bond or obligation and warrant of attorney, or certified copy thereof, in his office. The provisions of this section shall not apply to any official bond or obligation given by a public officer.

Section 8. The fees of the prothonotary for services under the provisions of this act shall, in so far as they are not provided for by existing law, be regulated by the Superior Court of the State in the several counties.

Section 9. All Acts or parts of acts in so far as inconsistent with the provisions of this act are hereby repealed.

Approved March 23, A. D. 1903.