Holschumaker v. Etchells

Citations

• 9 Del. Ch. 33
• 74 A. 644
• 1909 Del. Ch. LEXIS 4

Syllabus

<p>An execution creditor who had obtained a judgment against an administrator will not be enjoined from selling real estate of a decedent because of a defense to the judgment available in the action at law, even though the devisees or heirs at law be complainants in the bill asking for the injunction.</p> <p>An execution creditor will not be enjoined from selling the real estate of a decedent, on a judgment recovered against his administrator, on the ground that after the issuing of execution * the administrator applied to the Orphans’ Court for leave to sell land of the decedent to pay debts of the decedent, which his personal estate was insufficient to pay, or on the ground that the administrator showed in his first account a balance in hand due the estate.</p> <p>A motion to dismiss a bill for want of equity should be made before answer filed; otherwise, the defendant will be required to pay costs.</p> <p>Want of equity in the bill should be raised by demurrer and not by motion to dismiss the bill.</p> <p>After an answer is filed a motion to dismiss the bill for want of equity should not be entertained, except upon terms.</p>