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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JERRY TAYLOR

,

Plaintiff,

v.

NICOLE VANHORN

,

Defendant. )

)

) C.A. No. N2 3C

- 03

- 226 MAA

)

)

)

)

)

)

ORDER

Before the Court is Plaintiff Jerry Taylor’s A ction for E jectment pursuant to

10 Del. C. § 6701, and Motion for Order on Rule to Show Cause ( “ RTSC ” ) against

Defendant, Nicole Vanhorn.

Upon consideration of the Delaware Superior Court Rules of Civil Procedure,

the relevant s tatutory and decisional law on actions for ejectment, and the record in

this matter ; for the reasons that follow, Plaintiff’s action for ejectment is granted

.

PRODEDURAL HISTORY

1. Plaintiff filed this complaint for ejectment and Motion for RTSC on

March 27, 2023.

2. On April 17, 2023, the Court issued an O rder on Plaintiff’s RTSC,

ordering Defendant to show cause at a hearing scheduled for May 18, 2023, as to

why the Court should not g rant writ of possession to Plaintiff

.

3. On April 21, 2023, the Deputy Sheriff personally served Defendant

with a copy of the RTSC Order.

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4. On May 1, 2023, the Court notified the parties that a hearing w ould be

held on May 18, 2023 at 9:15 AM via Zoom video co nference.

5. On May 16, 2023, Defendant filed her response to Plaintiff’s RTSC

.

6. The Court held a hearing on May 18, 2023 in which b oth parties were

present and testified. The Court took the matter under advisement, instructed the

parties to update the Court on whether they had resolved the matter by June 1, 2023,

and advised it would issue a decision if they had not reached a resolution by that

date.

7. On June 1, 2023, Plaint iff informed the Court that he and Defendant

were unable to reach a resolution.

8. This is the Court’s decision on Plaintiff’s Action for Ejectment.

FACTS

9. The Court draws the following allegations from Plaintiff’s Complaint

,

Defendant’s Response , and the parties’ representations during oral argument on May

18, 2023 :

a. Plaintiff is the sole title holder of the property located at 414 Sitka

Spruce Lane, Townsend, Delaware 19734 (the “ Property ”)

.

b. The parties share a child together and were in an intimate

partnership which terminated around September 2022. 1

1 Def. Resp. (“yes are we separated yes”).

### 3 c. Defendant ha d been giving money to Plaintiff for ho usehold

expenses on an inconsistent basis during the period when they lived together

in the home

. 2



### d. On January 24, 2023, Plaintiff filed a landlord

- tenant action

against Defendant in Justice of the Peace Court in New Castle County,

Delaware. Defendant was provided with an eviction notice related to that

action.

e. On March 24, 2023, the JP Court dismissed the action without

prejudice , finding that it did not have jurisdiction to decide the matter

. 3



### f. Plaintiff has previously requested on numerous occasions that

Defendant vacate the residence.

g. Plaintiff was residing at the Property when he filed the Complaint

until around May 14, 2023. 4



### h. Plaintiff testified that, due to increasing strife caused by the

parties’ cohabitation, he had recently vacated t he property, was living with

family members, and intended to remain out of the home until Defendant

vacated. Defendant confirmed in her testimony that Plaintiff had in fact

vacated the property.

2 Def. Resp. (“I have paid 800$ [ sic ] a month and I have these text messages to prove it.”)

. 3 Taylor v. Vanhorn, Del. J.P., C.A. No. J P9

- 23

- 000040, Losito, J. (Mar. 24, 2023).

4 Taylor v. Vanhorn, C.A. No. N23 C

- 03

- 226 MAA, Rule to Show Cause Hearing (May 18, 2023).

### 4 i. Defendant continues to reside in the Property. 5



### ANALYSIS

10. An ejectment is an action at law within the jurisdiction of the Superior

Court

. 6 

### In an action for ejectment, a landowner who is out of possession may prove

title to the land and, if successful, be granted possession of the disputed property

. 7



### A judgment for the plaintiff in an ejectment action “establishes the legal right of the

plaintiff to the possession of the premises; it is not conclusive as to title.” 8



### 11. To establish a valid claim for ejectment, a plaintiff must show by a

preponderance of the evidence that that they are : (1) out of possession of the

property; and (2) have a present right to possess the property. 9 

### A plaintiff must be

out of possession of the entirety of the property. 10 

### If a plaintiff is in possessio n of a

portion of the property, an action for ejectment is not available. 11 

### “The burden is on

the plaintiff to prove legal title by ‘proving or producing the deed, will, and descents

5

. Def. Resp. (“ I’ve been staying here at 414 Sitka spruce lane since 2019 .”).

6 10 Del. C. § 6701; Nelson v. Russo, 844 A.2d 301, 302 (Del. 2004).

7 Nelson, 844 A.2d at 303.

8 2 Victor B. Wooley

, Practice in Civil Actions and Proceedings in the Law Courts of the State of

Delaware, § 1614 (1906) citing Bright’s Lessee v. Stevens, 1856 WL 1008 (Del. Super. Apr. 1,

1856).

9 Nelson, 844 A.2d at 302; Chandler v. Hovington, 2023 WL 2260724 , at *1 (Del. Super. Feb. 28,

2023) citing Humes v. Charles H. West Farms, Inc., 2006 WL 337038 at *1 (Del. Super. Jan. 18,

2006) ; see also Heathergreen Commons Condominium Ass’n v. Paul, 503 A.2d 636, 643 (Del. Ch.

1985); Furness v. Patterson, 1998 WL 737989, at *2 (Del. Super., Sept 28, 1998); Suplee v. Eckert,

120 A.2d 718, 719

- 20 (Del. Ch. 1956)

. 10 Justice v. McGinn, 1998 WL 229436, n. 9 (Del. Ch. Apr. 21, 1998) ( “ Here, the Petitioners allege

in their complaint that they are in possession of at l east a portion of the property in dispute. Should

that be established, then an action for ejectment would not be available at law .” ). Id.

11 Id.

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under which said title is claimed’ or by proving the requisite elements o f adverse

possession.” 12



### 12. With respect to the first requirement, the Court finds that Plaintiff has

established by a preponderance of the evidence that he is out of possession of the

property.

13. With respect to this element

, 10 Del. C. § 6701 states that “[i]f the

premises for which the action is brought are actually occupied by any person such

actual occupant shall be named defendant in the action, and all other persons

claiming title or interest to or in the same may be joined as defendants.” 13



### 14. Delaware courts have interpreted this provision to mean that the

ejectment statute was not designed for the use of a plaintiff who is in possession. 14



### The Court of Chancery found in Suplee v. Eckert that an action in ejectment was

only available to plaintiffs out of possession and that the language of the statute

“strongly suggest[ed]” it was “not designed for the use of a plaintiff in possession.” 15



### The court conclude d that the plaintiffs had no reme dy at law because they were in

possession of the property. 16 

### Since the issuance of Suplee , Delaware courts have

continued to adopt this interpretation of the statute. 17

12 Chandler, 2023 WL 2260724, at *1 ( quoting Humes, 2006 WL 337038 at *1 )

. 13 10 Del. C. § 6701.

14 Suplee v. Eckert, 120 A.2d 718, 719

- 20 (Del. Ch. 1956).

15 Id. at 720.

16 Id.

17 Downs v. Carnvale, 1987 WL 18114, at *3

- 4 (Del. Super. Oct. 1, 1987). In Downs, plaintiffs

filed an ejectment action against their neighbors, claiming a strip of land on which they constructed

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15. In the majority of Delaware decisions adjudicating actions for

ejectment, the facts cl early establish whether the plaintiff was out of possession of

the property . This case is distinct in that regard because here, Plaintiff was

admittedly in actual possession when he filed the action and remained in actual

possession until a few days before the RTSC hearing. It is now undisputed that

Plaintiff is no longer in possession of the residence.

16. The Court finds that, although Plaintiff was in actual possession when

he filed this action and, therefore, could not establish the jurisdictional requirements

of ejectment at that time, this requirement is now established

. Denying Plaintiff’s

action at t his juncture would be placing form over substance. Denying the action

a driveway and currently possessed, was within the bounds of their property. Id. at *1

- 3. The court

stated it was “quite doubtful” the ejectmen t action was proper where plaintiffs were in possession

and cited to the Court of Chancery’s interpretation of Section 6701 in Suplee

, 120 A.2d at 720

. Id.

at *3

- 4

. In Burris v. Cross

, the court found the plaintiffs did not have a valid claim for ejectment

regarding their right

- of

- way because they were currently in possession of and used said right

- of

way. 583 A.2d 1364, 1377 (Del. Super. Sept. 27, 1990). Although Stella v. Roberts does not

directly address the question of whether a plaintiff can establish that they are out of possession

when they have recently cohabitated with the defendant at the property

, it affirms that a plaintiff

who is wholly out of possession by virtue of the defendant’s exclusive possession has established

the first element. 2019 WL 5207915, at *1, 3 (Del. Super. Oct 15, 2019). In Stella, the p laintiff

took ownership to the property th rough a D eed in Lieu of Foreclosure and later became aware that

Defendant was occupying the property. Id. at *1. Defendant refused to vacate, claiming she did

not remember signing the deed over to the former owner. Id. The court found that the plaintiff

was out of possession because Defendant was in possession. Id. at *2. See also Hayward v. King,

2015 WL 6941599 (Del. 2015) (affirming Superior Court’s verdict granting plaintiffs’ ejectment

action which found plaintiffs out of possession of strip of la nd enclosed by defendant

- neighbors’

fence) ; Woogen v. Hamilton, 2003 WL 22064246 (Del. Super. Sept. 3, 2003) (granting plaintiff’s

ejectment action where plaintiff was record titleholder and it was undisputed that defendant

occupied the property) ; Fitzwater v. Bennett, 1980 WL 81857, at *3 (Del. Ch. May 27, 1980)

.

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also risks wasting scarce judicial resources as Plaintiff is likely to re

- file this action

to re

- establish what has already been established at the hearing on May 18, 2023

.

17. With respect to the second requirement, Plaintiff has established

b eyond a preponderance of the evidence that he has a right to possess the property.

Plaintiff credibly testified that he is the sole legal title holder and Defendant has

conceded without reservation th e truth of this statement. 18



### 18. For the reasons stated above, the Court finds Plaintiff has established

the requirements for ejectment and that he is entitled to a writ of ejectment of the

property.

IT IS SO ORDERED.

Dated: June 9, 2023

18 Enuha v. Enuha, 1997 WL 328582, at *1 (Del. 1997) (“The defendants conceded that the

plaintiff is the sole legal titleholder of the property. That fact was sufficient to entitle the plai ntiff

to ejectment

. ”).