delivered the opinion of the court
At the time Schumacher died he resided in the county of Butler, and letters of administration of his estate were granted to his widow by the Register of that county on November 11th, 1858. The administratrix, December 15th, 1860, presented her petition to the Orphans’ Court of Allegheny county, representing that her letters were granted by the Register of Butler county; that the decedent died intestate, leaving a widow and three minor children who had no guardian ; that he owned a tract of land in Allegheny county, and “ that the said real estate is subject to the lien of debts due by said decedent, and not of record, and that it is for the best interest ánd advantage of those interested therein that the same should be mortgaged for the purpose of raising a sufficient amount of money to pay off and discharge the debts due by the estate of said decedent.” On the same day the court appointed a guardian . ad litem, who immediately answered; whereupon, the same day, the court granted the petition and decreed, among other things, “ that the money raised on said mortgage be applied according to law to the discharge of such debts as may be liens on said real estate, and the remainder, if any, she hold subject to the further order of this court.” And approved bond in $1,500.
The petition stated nothing as to the amount of debts, nor that the personal estate was insufficient to pay them, but it prayed a decree authorizing a mortgage for $700. She got that money, in due time the land was sold in satisfaction of the mortgage, and, after its payment, she received of the proceeds of sale $2,726. If the real object was to divest the minor children of their patrimonj’-, no better way could have .been devised, provided the court had jurisdiction.
It is so plain that the proceeding and decree were unauthorized by the Act of 1832, which provides for sale or mortgage of real estate by an administrator for payment of the debts of a decedent, and also prescribes the mode of procedure, that the defendants deny that said Act has anything to do with the case, and claim that the Orphans' Court of Allegheny county had jurisdiction under the “ Act relating to the sale and conveyance of real estate.”
The Act of 1853 declares that nothing therein contained shall be taken to repeal or impair the authority of any other Act of Assembly, authorizing the sale of real estate by decree of court or otherwise. Its chief object is to extend the power to sell real estate, and to avoid special legislation by enabling the courts -to adjudicate matters relative to such sales after a full hearing of all parties; not to supersede the wholesome *625statutory regulations, which had been already provided, for the sale or mortgage of real estate of decedents, or of minors, by administrators or guardians. The Act of 1853 contains no provision authorizing the court to decree the sale of the real estate of a decedent for the payment of his debts.
In Price on Act relating to sales of real estate, p. 97, it is said that sales may be made, “whenever a decedent’s real estate is subject to the lien of debts not of record; that is, during the five vears after his decease, for which time all his real estate is subject to the lieu of all his debts; and theoretically so subject, though no debts be known to exist.” The learned author did not conceive that, under that clause, the court could decree a sale for any purpose other than the discharge of the particular lien. - The intent is obvious. Within five years after a decedent’s death, the parties interested in his real estate may wish to sell or mortgage, discharged of all liens, and by virtue of this provision the court may decree the sale, and, thereafter, the debts will continue a lien on the money in place of the land. All the owners may be able to contract and convey within said period, but the land is subject to the lien of all debts of the decedent, and, to give the purchaser the land discharged from such lien, the decree is necessary. As respects this point, the case would be precisely the same were some of the owners minors, or, for other cause, unable to convey. At first the Act provided that, in all cases within its provisions, sales could be decreed discharging all liens; but, after some experience and observation, the supplement of March 3d, 1867, was enacted, providing that private sales, made by order of court, shall discharge the premises sold from the lien of debts of the decedent, except debts of record and debts secured by mortgage.
The defendants contend that under the Act of 1853, the Orphans’ Court of Allegheny couidy had power to decree the sale of the decedent’s real estate, which was subject to the lien of debts not of record, and that the title is unprejudiced by any error in the proceedings of the court. This cannot be denied, if the petition sets forth a case within the purview of the Act. But the petition affirmatively shows a case within the exclusive jurisdiction of the Orphans’ Court of the county of Butler. The prayer is based on indebtedness of the estate. No other reason is given for the sale, or why money should be raised. The petition, though fatally defective under the Act of 1832, is for leave to mortgage the real estate of the decedent for the purpose of paying his debts, and for nothing else. .True, it was stated that it would be for the best advantage of those interested in the land, that the same should be mortgaged for the purpose of raising sufficient money to pay off and discharge *626the debts, but that is no reason for any'decree, except that money be raised to pay said debts either by sale or mortgage. The fact that the debts were not of record, does not change the nature of the petition. Had it stated that the debts were of record, its purpose to provide for their payment would have been no more clearly expressed. Upon proper application under the Act of 1853, the court may decree a public or private sale of land, and a public sale will discharge the lien of the decedent’s debts of record, and not of record, but it has no power, under this Act,-to make a decree upon a petition by the administrator, merely to provide for the payment of the debts of the decedent.
To sustain the proceeding the defendants refer to Hoover’s Appeal, 55 Pa. St., 337, where it wiis said that the petition sets forth sufficient ground for a decree of sale. There, the petition stated that the real estate of the decedent was subject to the lien of a judgment, and other debts not of record; that all the heirs, except one, had agreed with a purchaser for the sale of said real estate; that it would be greatly to the interest and advantage of all concerned, and asked a rule on the heir who refused to agree, to appear and show cause why the sale should not be confirmed. The petition was by the administrator, but it was in the interest of the heirs who had agreed to sell, and who could not convey the land discharged of the lien', without the decree. It was not an administrator’s petition for an order to sell réal estate for payment of the debts of a decedent. Had the sale been decreed, the money would have been substituted in place of the land, and the administrator would have had no right to use a dollar of it, without first obtaining a decree made on application in substantial compliance with the Act of 1832. The land having, been converted, it would only be necessary to show insufficiency of personal estate, in the proper mode, to obtain a decree by the court having jurisdiction of the accounts of the administrator, authorizing him to use so much of the money as necessary for payment of the decedent’s debts.
The Orphans’ Court of Allegheny county had no power to decree that the money raised by the mortgage should be applied to the payment of the debts that were liens on the real estate.
It was solely within the province of the court that had jurisdiction of the accounts of the administratrix, to determine whether any money should be raised by sale or mortgage of real estate, by the administratrix. No other court could consider that question. The Act of 1853, declares that the mortgage money shall in all respects be substituted for the real estate mortgaged, as regards the enjoyment and ownership thereof, after the payment of liens, and shall be held for the use of the same persons, and for the'same estate and interest, *627as the real estate mortgaged had been held. Had the mortgage been valid, none of the money could have been lawfully applied to payment of liens, save upon the decree of the proper court. That decree could not have been made without application showing that the personal assets were insufficient.
The defect of want of jurisdiction to make the decree lies at the foundation of the title set up by the defendants, of which they were bound to take notice.
Judgment reversed, and a venire facias de novo awarded.