
85 S.E.2d 153 (1954)
241 N.C. 281
Floyd E. CLAPP and wife, Myrtle Clapp, Grady W. Clapp and wife, Annie Clapp and Grady W. Clapp, Administrator of the Estate of D. D. A. Clapp, Deceased,
v.
Ernest E. CLAPP and wife, Carrie Clapp, Vick Clapp (single), Hattie Clapp Friddle and husband, Clyde Friddle, Harvey Clapp and wife, Bessie Clapp, Verda Clapp (single), Lucille Clapp Shanklin and husband, Claude Shanklin, and Nancy M. Clapp (widow).
No. 680.
Supreme Court of North Carolina.
December 15, 1954.
*155 Henderson & Henderson and Robert S. Cahoon, Greensboro, for defendants-appellants.
Frazier & Frazier and Chas. M. Ivey, Jr., Greensboro, for petitioners-appellees.
JOHNSON, Justice.
An oral contract to give or devise real estate is void by reason of the statute of frauds, G.S. § 22-2, which provides that "all contracts to sell or convey any lands * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing * * *." Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331; Daughtry v. Daughtry, 223 N.C. 528, 27 S.E.2d 446; Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477. Cf. Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885. And it is settled law that a party may rely on the statute of frauds under a general denial. Luton v. Badham, 127 N.C. 96, 37 S.E. 143, 53 L.R.A. 337; Winders v. Hill, 144 N.C. 614, 57 S.E. 456; Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760; Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R.2d 1325.
Also, it is provided by statutes that new matter set up by answer, not relating to a counterclaim, G.S. § 1-159, or new matter relating to a counterclaim not actually served upon the plaintiff, G.S. § 1-140, will be deemed as generally denied by operation of law. Askew v. Koonce, 118 N.C. 526, 24 S.E. 218; Smith v. Bruton, 137 N.C. 79, 49 S.E. 64; Miller v. Grimsley, 220 N.C. 514, 17 S.E.2d 642; McIntosh, N. C. Practice and Procedure, section 478.
Accordingly, the defendants' plea of sole seizin as to the 55-acre home tract, set up as new matter in the answer, stood denied by operation of law as effectively as if specific denial had been interposed by formal reply.
And conceding as we may that the plea of sole seizin raised an issue of fact and conferred on the defendants the right to require the Clerk to transfer the cause to the civil issue docket for jury trial, G.S. § 1-399, nevertheless, it would seem that the issue of fact so raised was eliminated and the necessity for jury trial removed when the defendants conceded by solemn admission, first made to the Clerk and later reiterated in response to an inquiry of the presiding Judge in term time, that their plea of sole seizin is not supported by any written contract or document to convey or devise the land claimed. A judicial admission, like the one here made, effectively removes the admitted fact from the field of issuable matters. Wigmore on Evidence, Third Edition, Vol. IX, sections 2588, 2590, and 2594; Stansbury, North Carolina Law of Evidence, sections 166 and 167; 20 Am. Jur., Evidence, sections 557 and 592.
Therefore, in view of the defendants' disclosure to the court, amounting to a judicial admission, that their claim of sole seizin is within the statute of frauds and for that reason void, the judgment of the Clerk, as approved by the presiding Judge, directing sale of all the land is free of prejudicial or reversible error and will be upheld.
We have not overlooked the defendants' denial of plaintiffs' allegation that the decedent left no "personal estate * * with which to satisfy and discharge her * * * debts * * *." On the pleadings as presently cast, this denial raised a question of fact on which the defendants *156 are entitled to be heard and to offer evidence. And unless and until this question be determined adversely to the defendants, the court below may not convert the proceeds to be derived from the sale of the land into assets for the purpose of paying the debts of the decedent. This is necessarily so for the reason that ordinarily realty may not be sold until the personalty has been shown to be insufficient to pay the debts of the decedent and the costs and charges of administration. Parker v. Porter, 208 N.C. 31, 179 S.E. 28; Moseley v. Moseley, 192 N.C. 243, 134 S.E. 645.
However, in the case at hand the petition alleges, and the judgment as entered decrees, that the land be sold for the dual purpose of making assets under G.S. § 28-81 et seq., and for partition under G.S. § 46-22, and it is noted that the answer admits the land sought to be sold is incapable of actual partition without injury to some or all of the parties interested. Therefore, with the plea of sole seizin eliminated from the case by judicial admission, the plaintiffs were entitled upon the allegations of the pleadings to sale for partition. The judgment below will be treated as having been entered for that purpose, and as so modified will be affirmed.
Pending the sale, or final confirmation thereof, the court, pursuant to G.S. § 1-276, may hear the question whether the decedent left a personal estate and, if so, proceed to determine the application thereof to the payment of her debts.
The defendants demurred ore tenus in this Court for failure of the petition to state facts sufficient to constitute a cause of action. The demurrer has been considered. It is without merit. The challenge is that the "petition fails to set forth * * * as required by G.S. § 28-86 * * * the value of the personal estate, as near as may be ascertained and the application thereof." The plaintiffs' allegation that the decedent "left no personal estate so far as can be ascertained * * *," suffices to overthrow the demurrer.
Modified and affirmed.
