Opinion. [5] The substance and effect of several of the exceptions, stated in varying forms, is that the mortgage sued upon had been fully paid to the plaintiff and is now held for an indebtedness subsequently incurred and which was not secured or intended to be secured by the mortgage-that is, that the mortgage was held for advances made after the debt secured by the mortgage had been fully paid. It is conceded that the defendant, from first to last, subscribed for ten shares of stock of the plaintiff association. The proof is that, two or three years later, the defendant, through his then attorney, prevailed upon the plaintiff association to let him have the surrender value on certain of the shares of stock, including two shares which he had assigned as collateral security for the payment of the money secured by the mortgage, on his assigning, in lieu thereof, two junior shares of stock as collateral security; that the surrender value of these shares of stock was not applied in any sense to the payment of the mortgage, but was paid to the defendant, upon his request, as money due him upon surrendering said shares of stock; that the transaction was not understood or intended to affect the mortgage or the debt thereby secured. It appears from the evidence that the only question before the referees was the balance due on the original and only loan secured by the mortgage. From statements made by counsel for the defendant it would seem that the latter thought when he received the surrender value of his said stock, that he was incurring a new indebtedness to the plaintiff. As a borrowing member, the monthly dues paid on the two shares of stock originally assigned as collateral security, to say nothing about the dues paid upon the additional shares of stock held by him, did not ipso facto become payments on the mortgage. The only payments made upon the mortgage were the payments of monthly interest. When the defendant requested and received the surrender value of the shares of stock which he did surrender, including the surrender value of the two shares of stock originally assigned as collateral security for the payment of the mortgage debt, he did not receive any moneys which by the law of Building Loan Associations had become applicable to and Opinion-Exceptions Dismissed. in discharge pro tanto of the mortgage. And in receiving the same, he did not incur any new indebtedness to the association. He simply requested and received his own-the cash surrender value of his shares of stock not pledged for the payment of the mortgage, and, by permission of the association, was permitted to have the cash value of the two shares which he had originally assigned as collateral security upon his assigning two new shares as collateral. No part of the mortgage was paid, nor was any new indebtedness created by this transaction. From the hearing on the exceptions it is manifest that the mortgage sued upon is not held for advances made to the defendant after the mortgage debt, or any part thereof, had been paid. The exceptions are dismissed, and the award of the referees is confirmed. BERTHA A. BAKER US. HARRY G. BAKER. 1. DIVORCE-CUSTODY OF CHILDREN-POWER OF Court. Under Act March 15, 1909 (24 Del. Laws, c. 214), authorizing the Superior Court, when a decree for annulment of marriage or for divorce or a separation is entered by it, to make such order for the distribution, care, and maintenance of children born during the continuance of the marriage as is just and reasonable, the court is authorized in its decree to provide for the custody of minor children, and the decree should so provide. 2. DIVORCE-OPERATION AND Effect of Decree-Support of Children. Where, in divorce suits, the question of maintenance was not adjudicated, considered, or raised, and the court, in awarding the care and maintenance of minor children to the wife, used the word "maintenance" merely in conformity to Act March 15, 1909 (24 Del. Laws, c. 214), authorizing the court to make such order for the distribution, care, and maintenance of the children as is just and reasonable, without any thought of adjudicating the question of maintenance, the husband's liability for the support of his children was not affected by the decree. (November 26, 1913.) Judges BOYCE and RICE sitting. James W. Lattomus for plaintiff. (The defendant was unrepresented.) Superior Court, New Castle County, November Term, 1913. Statement-Opinion. ACTION OF DIVORCE (No. 50, November Term, 1913). Decree nisi containing order for the care and custody of minor child. The statute making distribution of minor children considered. RICE, J., delivering the opinion of the court: Bertha A. Baker, the plaintiff in this case, filed a petition for divorce from her husband, Harry G. Baker, the defendant. The petition contained a prayer for the "care and custody of Lealand L. Baker, a minor child born during the continuance of the marriage." Upon the hearing of the case, at the present term, the court granted a decree nisi to the plaintiff, and directed that the decree contain an order awarding to Bertha A. Baker, the plaintiff, the care and custody of the minor child according to the prayer of the petition. Counsel for the plaintiff presented, and the court subsequently signed, a decree containing the following order: "It is further ordered and decreed that the plaintiff Bertha A. Baker be given the sole care and custody of the minor child Lealand L. Baker, born during the continuance of the marriage of the plaintiff and the defendant in this action." Attention is directed to the use of the word "custody" in the decree in place of the word "maintenance" heretofore uniformly used in such decrees. [1, 2] When the act of April 11, 1907 (24 Del. Laws, c. 221), entitled "An act regulating annulment of marriage and divorce," was passed, it did not contain a provision concerning the care and custody of minor children resulting from the marriage. However the next Legislature passed a supplemental act, which was approved March 15, 1909, and is as follows: "That the Superior Court within any of the counties of this state is hereby authorized and empowered in its discretion in any cause of annulment of marriage or divorce now pending or hereafter brought before said court, and in which a decree nisi for annulment of marriage or for divorce from the bonds of matrimony or a decree for a separation is entered by said court to make Opinion. such order for the distribution, care and maintenance of the children born during the continuance of the marriage sought to be affected by such proceeding, as is just and reasonable and said court may from time to time revise and change such order as occasion may require." 25 Del. Laws, c. 214. After the passage of this supplemental act, the court, in making decrees awarding the custody of minor children, followed the wording of the statute, and now for the first time we have changed this recognized practice and have inserted the word "custody" in lieu of the word "maintenance". We are of the opinion that it clearly is the intent of the statute to give the court authority to make decrees containing provision for the care and custody of minor children. In view of the language employed by the court in decrees heretofore made, and of that employed in the present decree, we think it proper to say that in no case has the question of maintenance been adjudicated, considered or raised, and the liability of the husband, therefore, for the support of his children would not be in any wise affected by anything contained in any former decree. The court simply used the language of the statute, including the word "maintenance", but without any thought in any case of adjudicating that fact. We direct that divorce decrees containing an order for the care and custody of children hereafter follow the language employed in the present case. MARY B. Caldwell vs. ALEXANDER H. LORD. 1. TAXATION-RECOVERY OF LAND SOLD FOR TAXES-Tender. An owner, suing in ejectment for land sold for taxes, will not be permitted to pay into court at the beginning of the suit the amount paid by the purchaser for taxes and charges. 2. TAXATION-TAX SALES-VALIDITY-PRESUMPTIONS. Rev. Code 1852, amended to 1893, p. 119, c. 12, § 14, providing that the sale of land for taxes shall be returned by the collector to the court, and it Syllabus-Statement. may approve or disapprove, and, if approved, the collector shall make a deed to the purchaser, abolishes the common-law rule that, where property is sold for taxes, each step must be shown by the party seeking to establish title under a tax deed, and the act of the court approving a sale returned by the collector establishes prima facie the regularity of the sale. (October 17, 1913.) Judges BOYCE and RICE sitting. Robert G. Houston for plaintiff. Daniel J. Layton, Jr., and Charles W. Cullen for defendant. EJECTMENT (No. 16, February Term, 1913) by Mary B. Caldwell against Alexander H. Lord for the recovery of a lot sold at a tax sale. Verdict, not guilty. Mr. Houston:-This is an action brought by the plaintiff, the original owner, against the defendant, the purchaser, to recover possession of lot No. 16, Pennsylvania Avenue, at Rehoboth, sold for taxes. I find that the law generally seems to require in an action of this kind that a tender of the amount of the tax sale be paid into court at the beginning of the suit. I know of no practice of that kind in this state, but I wish at this time to make the tender of forty-three dollars and forty-nine cents. Mr. Layton: I know of no authority, statutory or otherwise, for such a proceeding. The only statutory authority, so far as I can find, applies only to the redemption of the lot within the statutory time, by the payment of the taxes and charges and twenty per cent. interest. This is an action involving the legal title and the tender has nothing to do with it. RICE, J.-1] Mr. Houston, your offer has been recorded, but in the absence of any rule or statute (and you say you do not make the offer under either) we will not permit you to make the payment at this time. We do not know what may develop hereafter. We have noted that you brought into court and offered to pay the amount of forty-three dollars and forty-nine cents. Mr. Houston then stated, that there were no pretensions in the case, they not being necessary under the rule, and offered in |