Martin v. Rellehan

• Decision Date: 31 January 1869
• Citation: 3 W.Va. 480
• Court: West Virginia Supreme Court
• Parties: Joseph Martin v. Michael Rellehan.

3 W.Va. 480

Joseph Martin

v.Michael Rellehan.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. It is error to decree the sale of the real estate of an intestate to satisfy a judgment lien, without first having a settlement of the accounts of his administrator and the assets in his hands being applied to the judgment lien.

2. If there is no replication to an answer in chancery, everything stated in it is admitted to be true. But if the party answering proceeds to take depositions to sustain his allegations and statements, he waives this advantage.

This cause arose in Greenbrier county. The summons was returnable to August rules, 1866.

The opinion of the judge contains a sufficient statement of the points in controversy.

C. S. Sperry for the appellant,

Maxwell, J. The first ground of error assigned is that there was no account taken of the assets in the hands of the administrator of the estate of C. 13. Martin, the deceased judgment debtor, before a decree should be rendered for the sale of any lands claimed by him in his life time, and which may have descended at his death to his infant children and heirs at law. The administrator is a party to the suit, and it appears from the record that his accounts as administrator have not been settled, and it also appears that he has in his hands assets belonging to the estate of his intestate, but what amount does not appear, no application of which is made in the decree towards discharging the debt of the complainant. A settlement of the accounts of the administrator should have been first had, and the assets in the hands of the administrator applied on the judgment in favor of the complainant before taking a decree for the sale of the real estate.

It is claimed that it was error to decree the sale of the interest of C. B. Martin, deceased, in that portion of the land conveyed to Joseph Martin by C. B. and 0. C. Martin. The land upon which it is claimed the complainants' judgment is a lien, consists of two tracts, one of 900 acres and the other of 100. The bill charges that the said C. B. and O. C. Martin fraudulently conveyed to Joseph Martin onefourth of a certain tract of land, containing 240 acres, after the complainant obtained his judgment against C. B. Martin. The deed is not made a part of the bill, and the bill makes it uncertain whether the interest charged to be conveyed was one-fourth of a tract of 240 acres or whether 240 acres is the quantity conveyed. The defendant, O. C. Martin answered this part of the bill, and denied that any fraud was committed or intended to be committed by him and his brother, C. B. Martin, in making to their father, Joseph Martin, the deed for the one-fourth of the tract of land in the bill mentioned, and says that the land had been sold under a decree of the circuit court of Greenbrier county, at the suit of James Jarrett, administrator of Ira Jarrett, deceased, against respondent and his brother to discharge a judgment lien; that the lien existed, the decree was obtained, and the sale by the sheriff, under the decree, was made before the judgment was rendered in favor of the complainant, Rellehan, at which sale thesaid Jarrett became the purchaser; that the defendant, Joseph Martin, then purchased the land from Jarrett, and the conveyance was made by respondent and his brother to their father, merely because they still...