[494]*494Opinion by
Mr. Chief Justice Eakin.
1. When defendant Kern was called upon by the executrix to 'execute the mortgage to secure the $2,000, deferred payment of the purchase price of the 5%-acre tract, he refused to do so, and she brought suit against him to compel specific performance. That suit raised only the question as to the liability of Kern upon his contract of purchase. His defense was that plaintiff could not give him a good title because the petition for the sale was insufficient to authorize an order of sale. He asks to have the minor made a party defendant in that suit, and an order to that effect was made by the court, but an amended complaint, accomplishing that result, was not filed. However, a summons was served on the minor, and, on motion of Kern, Stephan was appointed guardian ad litem for him in that suit. Kern being willing to complete the purchase and not satisfied that a decree against him in that suit would quiet his title, he filed what he terms a cross-bill, not against the plaintiff or for relief as to any matter involved therein, but to quiet title against the minor.
2. Upon the cross-bill no summons was issued and no service of the complaint was had on the minor, nor was there a guardian ad litem appointed for him, but service of the complaint was accepted by the guardian in the suit for specific performance, and he filed an answer therein. The guardian ad litem was selected by the executrix, and he did not investigate the minor’s rights, but acted upon the advice of Mrs. Howe, and her attorney, who, it seems, drew his answer, yet her interests in the proceeding were adverse to that of the' minor, as it would result in taking his property to pay debts chargeable upon the property devised to her. See Bowman v. Anderson, 62 Or. 431 (123 Pac. 1092). However, by Section 390, L. O. L., cross-bills are abolished except for the purpose of asserting an equitable defense in an action at law; but any defense that a defendant [495]*495may have against the plaintiff in a suit may .be pleaded as a counterclaim under Section 401, L. O. L., if it be connected with the subject of the suit. Although the minor was made a party defendant in the suit for specific performance, he was in no way interested in the result. Therefore the circuit court had no jurisdiction in that suit to quiet the title as against the minor, and, so far as it attempted to do so, the decree was void, for the reason that the relief sought by the cross-bill was not a counterclaim against the plaintiff in the suit for specific performance, within Section 401, L. O. L., and for the further reason that the minor, against whom the relief was sought, was not brought into court by service of summons.
The plaintiff in this suit, assuming that the petition for the sale of the real estate in the probate proceeding was wholly insufficient to give the court jurisdiction to order the sale, alleges that the answer and cross-bill in the suit for specific performance and the proceedings thereunder were had by collusion and fraud between the executrix and Kern for the purpose of barring and cutting off any claim to the property by the minor; and the defendants, plead the proceeding under such answer and cross-bill as an adjudication of the title in their favor, and that they are innocent purchasers for a valuable consideration without notice of any collusion or fraud.
Without considering the question of collusion or frauci on the part of Kern and the executrix, we conclude that the decree in the suit for specific performance did not bar or estop the plaintiff from claiming title to the property, and this brings us to the consideration of the question of the sufficiency of the petition for the sale of the real estate and the validity of the order.
3. The first question of importance is as to the relation that the fourth item of the will — the devise of the 5 34-acre tract — bears to the other devise. This is a specific [496]*496devise to Carrie Howe and the infant. By Section 1252, L. O. L., when real estate is specially devised, it shall be exempt from the - operation of the order of sale for the purpose of paying debts in the same manner as personal property; and by Section 1251 personal property, specially bequeathed, is exempt from the operation of the order of sale so long as any property not specially devised or bequeathed remains unsold. The wife’s interest in the property devised by both items 3 and 4 is made contingent upon her remaining with the testator while he lives and remaining unmarried thereafter. In case of desertion or remarriage all the property is to go to the infant. Plaintiff has overlooked the fact that item 3 of the will is also a special devise of the property described and is exempt from the order of sale until property, not specially devised or bequeathed, has been exhausted. By the terms of item 3, the devise to Carrie Howe is charged with the support of herself ánd the education and maintenance of the child; and the property devised by item 4 cannot be sold to meet such expenses until the other property is exhausted. '
4. The debts of the estate secured by mortgage must first be satisfied out of the mortgaged property. This is recognized by Section 1271, L. O. L., which provides for the payment of mortgage debts out of the personal property only when so provided in the will or by order of the court, and by Section 1272, L. O. L., if no such provision is made, the property shall be sold subject to the mortgage. The property devised by item 4 is equally liable with that devised by item 3 for the funeral expenses, debts of the estate, and expenses of administration, and either may be resorted to for the payment of such claims or liabilities; and if, in the course of the probate proceeding, either devise has contributed to such liability more than its share, the devisee is entitled to contribution therefor. Jarman, Wills, p. 2031.
[497]*4975. But the property devised by item 4, having been ordered to be sold for debts for which it was liable, the fact that more property was included in such order than was necessary to pay such debts, or that a part of the proceeds of such sale was applied to claims for which it was not liable, cannot render the sale invalid.
6. The complaint in this suit alleges that the petition for the sale of real property was insufficient to give the court jurisdiction.
“That the said petition for the sale of real property was insufficient and did not contain the jurisdictional facts to give the court jurisdiction to base an order thereon directing the sale of the said minor’s interest in and to the said tract of 5% acres especially devised to him by said will. That said petition failed to allege or show any necessity for the sale of said property, but, on the contrary, showed that there was no necessity to sell said property.
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[494]*494Opinion by
Mr. Chief Justice Eakin.
1. When defendant Kern was called upon by the executrix to 'execute the mortgage to secure the $2,000, deferred payment of the purchase price of the 5%-acre tract, he refused to do so, and she brought suit against him to compel specific performance. That suit raised only the question as to the liability of Kern upon his contract of purchase. His defense was that plaintiff could not give him a good title because the petition for the sale was insufficient to authorize an order of sale. He asks to have the minor made a party defendant in that suit, and an order to that effect was made by the court, but an amended complaint, accomplishing that result, was not filed. However, a summons was served on the minor, and, on motion of Kern, Stephan was appointed guardian ad litem for him in that suit. Kern being willing to complete the purchase and not satisfied that a decree against him in that suit would quiet his title, he filed what he terms a cross-bill, not against the plaintiff or for relief as to any matter involved therein, but to quiet title against the minor.
2. Upon the cross-bill no summons was issued and no service of the complaint was had on the minor, nor was there a guardian ad litem appointed for him, but service of the complaint was accepted by the guardian in the suit for specific performance, and he filed an answer therein. The guardian ad litem was selected by the executrix, and he did not investigate the minor’s rights, but acted upon the advice of Mrs. Howe, and her attorney, who, it seems, drew his answer, yet her interests in the proceeding were adverse to that of the' minor, as it would result in taking his property to pay debts chargeable upon the property devised to her. See Bowman v. Anderson, 62 Or. 431 (123 Pac. 1092). However, by Section 390, L. O. L., cross-bills are abolished except for the purpose of asserting an equitable defense in an action at law; but any defense that a defendant [495]*495may have against the plaintiff in a suit may .be pleaded as a counterclaim under Section 401, L. O. L., if it be connected with the subject of the suit. Although the minor was made a party defendant in the suit for specific performance, he was in no way interested in the result. Therefore the circuit court had no jurisdiction in that suit to quiet the title as against the minor, and, so far as it attempted to do so, the decree was void, for the reason that the relief sought by the cross-bill was not a counterclaim against the plaintiff in the suit for specific performance, within Section 401, L. O. L., and for the further reason that the minor, against whom the relief was sought, was not brought into court by service of summons.
The plaintiff in this suit, assuming that the petition for the sale of the real estate in the probate proceeding was wholly insufficient to give the court jurisdiction to order the sale, alleges that the answer and cross-bill in the suit for specific performance and the proceedings thereunder were had by collusion and fraud between the executrix and Kern for the purpose of barring and cutting off any claim to the property by the minor; and the defendants, plead the proceeding under such answer and cross-bill as an adjudication of the title in their favor, and that they are innocent purchasers for a valuable consideration without notice of any collusion or fraud.
Without considering the question of collusion or frauci on the part of Kern and the executrix, we conclude that the decree in the suit for specific performance did not bar or estop the plaintiff from claiming title to the property, and this brings us to the consideration of the question of the sufficiency of the petition for the sale of the real estate and the validity of the order.
3. The first question of importance is as to the relation that the fourth item of the will — the devise of the 5 34-acre tract — bears to the other devise. This is a specific [496]*496devise to Carrie Howe and the infant. By Section 1252, L. O. L., when real estate is specially devised, it shall be exempt from the - operation of the order of sale for the purpose of paying debts in the same manner as personal property; and by Section 1251 personal property, specially bequeathed, is exempt from the operation of the order of sale so long as any property not specially devised or bequeathed remains unsold. The wife’s interest in the property devised by both items 3 and 4 is made contingent upon her remaining with the testator while he lives and remaining unmarried thereafter. In case of desertion or remarriage all the property is to go to the infant. Plaintiff has overlooked the fact that item 3 of the will is also a special devise of the property described and is exempt from the order of sale until property, not specially devised or bequeathed, has been exhausted. By the terms of item 3, the devise to Carrie Howe is charged with the support of herself ánd the education and maintenance of the child; and the property devised by item 4 cannot be sold to meet such expenses until the other property is exhausted. '
4. The debts of the estate secured by mortgage must first be satisfied out of the mortgaged property. This is recognized by Section 1271, L. O. L., which provides for the payment of mortgage debts out of the personal property only when so provided in the will or by order of the court, and by Section 1272, L. O. L., if no such provision is made, the property shall be sold subject to the mortgage. The property devised by item 4 is equally liable with that devised by item 3 for the funeral expenses, debts of the estate, and expenses of administration, and either may be resorted to for the payment of such claims or liabilities; and if, in the course of the probate proceeding, either devise has contributed to such liability more than its share, the devisee is entitled to contribution therefor. Jarman, Wills, p. 2031.
[497]*4975. But the property devised by item 4, having been ordered to be sold for debts for which it was liable, the fact that more property was included in such order than was necessary to pay such debts, or that a part of the proceeds of such sale was applied to claims for which it was not liable, cannot render the sale invalid.
6. The complaint in this suit alleges that the petition for the sale of real property was insufficient to give the court jurisdiction.
“That the said petition for the sale of real property was insufficient and did not contain the jurisdictional facts to give the court jurisdiction to base an order thereon directing the sale of the said minor’s interest in and to the said tract of 5% acres especially devised to him by said will. That said petition failed to allege or show any necessity for the sale of said property, but, on the contrary, showed that there was no necessity to sell said property. That said petition failed to show that there were any claims for the payment of which said property could be subjected under the terms of the will as above alleged, and said petition failed to set out said will or to petition for the sale of the said property, but the said petition asked only for an order of the court permitting the executrix to sell such portions of said real property belonging to said estate as she might deem necessary from time to time in order that she might sell such part or parts without any order of the court therefor and without any determination by the court that the necessity existed for the sale of said part or parts of said property.”
No facts are alleged, stating in what regard the petition failed to establish a necessity for the sale of the property, or that there were any claims for the payment of which such property could be subjected. If by this allegation plaintiff means that there was no' necessity shown for the sale of this tract, it being specially devised, that objection is fully answered by what has been already stated; there being funeral expenses, expenses of administration, and taxes for which this property was liable.
The final account shows that there was actually more [498]*498than $1,650 of liabilities for which it was liable, and no property, not specially devised, was applicable to the payment thereof. Therefore the petition shows a necessity for the sale. The inventory and appraisement show there was personal property of the value of $1.00, practically no personal property. However, the petition recites that the personal property was sold for $1.00, and it enumerates the debts and expenses of administration and _faxes amounting to $506.53, and for the payment of which this property was liable equally with the other.
7. It is also urged that the petition is defective because it does not set out the will; but, the will having been probated, the court will take notice of its contents.
8. The petitioner asks for an order permitting her to sell any part of the property of the estate for which she may be able to find a purchaser. Probably she asked for too -much, but the prayer does not affect the jurisdiction. The order of sale does not grant all that is prayed for, but authorizes the sale of blocks 3 and 4, and lots 23 and 24 of block 7, in Wheatland Addition to East Portland, and the 5%.-acre tract or so much thereof as may be necessary to realize the amount of money sufficient to pay the claims, charges, and expenses of administration. Such latitude to the executrix was probably ill advised, but does not affect the jurisdiction to make the order or the title of the property sold thereunder. It being necessary that some of the real estate be sold to pay this indebtedness, and all the real property having been disposed of by special devises, the property under each devise is liable equally for the payment thereof, and the petition is not subject to the criticism offered, but was sufficient to give the court jurisdiction to make the order of sale.
The sale of more of the property than was necessary to pay the debts for which it was liable, and the payment of a part of the proceeds of the sale upon debts chargeable to other property, are matters of procedure that do not [499]*499go to the jurisdiction of the county court to make the order for the sale of property, and these defects are aided by the curative statute. Section 1259, L. O. L.
The decree is affirmed. Affirmed.