Opinion by
Mr. Justice Williams,
The question whether under all the circumstances surrounding the parties to this action it is, or is not, conscionable on the part of the plaintiffs is not now before us. The evidence inclines us to think that the circumstances while not amounting to an estoppel at law, are entitled to consideration in foro conscientim. But the assignments of error present only a dry question of law to us. Was the orphans’ court sale of the real estate now in controversy, made in October, 1872, operative to pass a title to the purchaser ? This must depend upon whether the orphans’ court had jurisdiction over the land to order its sale, and upon the legal effect of the order and of the decree of confirmation.
Smith died in the spring of 1862 leaving to survive him a wife and five children. He was at the time of his death the owner of the farm which is the subject of this action. No administrator'was appointed. His sister, Mrs. Lippencott, had lent him money to the extent of $500 or thereabouts which he had paid upon the land when he obtained his deed. For this money no security was given by him. He had not repaid it at the time of his death, and the widow and such of the children as were of age made some arrangement with Mrs. Lippencott under which she took the farm in payment of her debt. When she came to sell it the purchaser objected to the title for the reason that two of the five children were still minors and their title had not been secured. To remedy this defect in the title and [249] for no other purpose an administrator upon the estate of Smith was appointed in 1872, ten years after his death, and an application at once made for leave to sell the farm at administrator’s sale for the payment of the debt which had been due to Mrs. Lippencott. The land had been relieved from liability for this debt at the end of five years after the death of the decedent by the operation of the act of February 24, 1834. The debt had been barred by the statute of limitations at about the same time; but without any inquiry as to the time of Smith’s death or the time when the alleged debt was contracted an order of sale was granted, a sale was made by the administrator to Mrs. Lippencott’s husband, the price applied upon her debt, and the sale duly confirmed by the orphans’ court. The defendant holds under this sale and is in actual possession. The plaintiffs bring this action as heirs at law of Smith, their father, and claim to have title by descent, and the operation of the act of 1834. The defendant replies the orphans’ court sale and the conclusive character of the decrees of that court under which the sale was made and confirmed. The learned judge of the court below took the defendant’s view of the case and held the decree of the orphans’ court to be conclusive not only of the regularity of the proceedings, and the power of the administrator to sell and make a deed, but also of all claim by the plaintiffs upon the land.
In support of this doctrine the defendant cites Sager v. Mead, 171 Pa. 349, and kindred cases, in which this court has declined to investigate the regularity of the preliminary proceedings, after an administrator’s sale has been actually made under an order of the orphans’ court, been regularly returned to the court and approved by it. The leading case upon this subject is McPherson v. Cunliff, 11 S. & R. 422. In that case the administrators were appointed soon after the death of the decedent in 1795, the sales complained of were made in the same year and in 1796, for the payment of debts and the support of minor children. Some minor irregularities in the proceedings were alleged, but the chief objection made to the sale was that decedent had a living wife in Ireland at the time of his marriage to the mother of his children in this country of which nothing had been known when the sales were ordered and confirmed. This court held in an elaborate opinion by Justice Duncan that the [250] title taken by tbe' purchaser was the title of the decedent, and that the court had jurisdiction over the subject-matter and its decrees were therefore conclusive upon the subject covered by •them. The reason for so holding he stated in these words: “ The principle on which I hold the sentence or decree of the orphans’ court conclusive is, that it is a general rule of our law that when any matter belongs to the jurisdiction of one court so peculiarly that other courts can only take cognizance of the same subject incidentally and indirectly, the latter are bound by the sentence of the former and must give credit to it.”
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Opinion by
Mr. Justice Williams,
The question whether under all the circumstances surrounding the parties to this action it is, or is not, conscionable on the part of the plaintiffs is not now before us. The evidence inclines us to think that the circumstances while not amounting to an estoppel at law, are entitled to consideration in foro conscientim. But the assignments of error present only a dry question of law to us. Was the orphans’ court sale of the real estate now in controversy, made in October, 1872, operative to pass a title to the purchaser ? This must depend upon whether the orphans’ court had jurisdiction over the land to order its sale, and upon the legal effect of the order and of the decree of confirmation.
Smith died in the spring of 1862 leaving to survive him a wife and five children. He was at the time of his death the owner of the farm which is the subject of this action. No administrator'was appointed. His sister, Mrs. Lippencott, had lent him money to the extent of $500 or thereabouts which he had paid upon the land when he obtained his deed. For this money no security was given by him. He had not repaid it at the time of his death, and the widow and such of the children as were of age made some arrangement with Mrs. Lippencott under which she took the farm in payment of her debt. When she came to sell it the purchaser objected to the title for the reason that two of the five children were still minors and their title had not been secured. To remedy this defect in the title and [249] for no other purpose an administrator upon the estate of Smith was appointed in 1872, ten years after his death, and an application at once made for leave to sell the farm at administrator’s sale for the payment of the debt which had been due to Mrs. Lippencott. The land had been relieved from liability for this debt at the end of five years after the death of the decedent by the operation of the act of February 24, 1834. The debt had been barred by the statute of limitations at about the same time; but without any inquiry as to the time of Smith’s death or the time when the alleged debt was contracted an order of sale was granted, a sale was made by the administrator to Mrs. Lippencott’s husband, the price applied upon her debt, and the sale duly confirmed by the orphans’ court. The defendant holds under this sale and is in actual possession. The plaintiffs bring this action as heirs at law of Smith, their father, and claim to have title by descent, and the operation of the act of 1834. The defendant replies the orphans’ court sale and the conclusive character of the decrees of that court under which the sale was made and confirmed. The learned judge of the court below took the defendant’s view of the case and held the decree of the orphans’ court to be conclusive not only of the regularity of the proceedings, and the power of the administrator to sell and make a deed, but also of all claim by the plaintiffs upon the land.
In support of this doctrine the defendant cites Sager v. Mead, 171 Pa. 349, and kindred cases, in which this court has declined to investigate the regularity of the preliminary proceedings, after an administrator’s sale has been actually made under an order of the orphans’ court, been regularly returned to the court and approved by it. The leading case upon this subject is McPherson v. Cunliff, 11 S. & R. 422. In that case the administrators were appointed soon after the death of the decedent in 1795, the sales complained of were made in the same year and in 1796, for the payment of debts and the support of minor children. Some minor irregularities in the proceedings were alleged, but the chief objection made to the sale was that decedent had a living wife in Ireland at the time of his marriage to the mother of his children in this country of which nothing had been known when the sales were ordered and confirmed. This court held in an elaborate opinion by Justice Duncan that the [250] title taken by tbe' purchaser was the title of the decedent, and that the court had jurisdiction over the subject-matter and its decrees were therefore conclusive upon the subject covered by •them. The reason for so holding he stated in these words: “ The principle on which I hold the sentence or decree of the orphans’ court conclusive is, that it is a general rule of our law that when any matter belongs to the jurisdiction of one court so peculiarly that other courts can only take cognizance of the same subject incidentally and indirectly, the latter are bound by the sentence of the former and must give credit to it.”
This makes the conclusiveness of the judgment or decree depend upon the jurisdiction of the court pronouncing it; and the converse of this proposition is equally clear that a decree of any court is a nullity which is pronounced upon a subject over which the court has no jurisdiction. This is elementary law. It was no new doctrine announced by this court in Torrance v. Torrance, 53 Pa. 505, when we said “ want of jurisdiction in the orphans’ court is as fatal to its proceedings as to those of any other court.” It is not indispensably necessary that the want of jurisdiction should appear affirmatively on the record. Ignorance of the law excuses no man. If an orphans’ court should .entertain a petition in divorce, hear the testimony and make a decree, the whole proceeding would be a nullity for want of jurisdiction, but it would be necessary to go behind the record and consult the statutes before the want of jurisdiction would appear. In Torrance v. Torrance, supra, the executor presented his petition to the orphans’ court for leave to sell real estate for the repayment to himself of money paid to a legatee, and for the payment to another legatee of a judgment recovered by him against the executor for a balance due him upon his legacy. The legacies had been charged by the will of the testator on certain real estate. The court without inquiry directed the sale, and subsequently made a decree of confirmation, and the deed was delivered. But in an action of ejectment we held the sale to be void. The court had under the will no jurisdiction over the land, and therefore its decree was without conclusiveness and void. None of the facts that avoided the sale appeared on the record except the fact that the sale was sought in order to pay legacies. The terms of the will and the want of statutory power to sell for such a purpose had to be sought [251] outside the files of the court and the recitals upon its dockets How does this doctrine apply to the case now before us ? The statute gives the orphans’ court power to authorize the administrator to make a sale of the real estate of a decedent in order to pay debts that cannot be paid out of the personal property. The administrator has no power over the land by virtue of his office. The land is made assets in his hands only when this becomes necessary for the payment of debts, and he must go to the orphans’ court for leave to sell. He must satisfy that court that there are unpaid debts that are properly chargeable, under the law, to the land because the personal estate is insufficient to pay, and the court thereupon authorizes him to make the sale. If there are no debts he cannot sell, nor can the court give him power to sell unless it be for some other statutory reason. The existence of debts is a jurisdictional fact. In this case the debt was not secured by lien, and under the act of 1834 it had ceased to be chargeable to the land, hut that had passed to the heirs at law absolutely free and discharged from it. It was not in the power of the administrator, or of the court, or of both together, to defeat the positive provisions of the act of 1834, or to fasten upon that land that had descended to the heirs this debt which for more than five years had ceased to be a charge upon it.
This has been so often held by this court that it ought to be no longer debatable. In Penn v. Hamilton, 2 Watts, 53, it was held that although the debt might have been reduced to judgment against the administrators yet if not regularly revived “ the lien is lost, whether the land be in possession of devisees or purchasers from devisees,” after the lapse of five years. In Quigley v. Beatty, 4 Watts, 13, the single point ruled is stated in these words: “ The debt of a decedent does not remain on his estate in the hands of an heir longer than seven (now five) years.” The statute was characterized in Kerper v. Hoch, 1 Watts, 9, as a statute of repose, and the lapse of time fixed as operating to discharge the land from the debts of the decedent, whether in the hands of purchasers, heirs or devisees. The last case was cited with approval in Hemphill v. Carpenter, 6 Watts, 22, and it was .there further held that knowledge of the debts by the heir, or even a promise by the heir that the debt shall remain binding on the land, would not change the rule or [252] relieve against the statute. See also Loomis’s Appeal, 29 Pa. 237; Kessler’s Appeal, 32 Pa. 390; Foster’s Appeal, 82 Pa. 495; Buehler v. Buffington, 43 Pa. 278. Such debts will not justify an order for the sale of real estate for payment of debts : Pry’s Appeal, 8 Watts, 258. The same rule is stated in Bindley’s Appeal, 69 Pa. 295, with the further proposition, that previous orders'of sale within five years of the death of the decedent would not extend the lien of his debts beyond the period fixed by the act of 1834; and it was also held that “ The principal intention of the 24th section of the act of 1834 was to promote security in titles in heirs, devisees and purchasers. No admission however solemn will dispense with an action.” The effect of a sale for payment of debts made after the five years had expired under an order that was granted before the end of the five years was suggested but not decided in Craig’s Appeal, 5 W. N. C. 243, and Bowker’s Estate, 6 W. N. C. 254. A sale under an order of the orphans’ court passes only the decedent’s title: Kline’s Appeal, 39 Pa. 463; Bickley v. Biddle, 33 Pa. 276. The rule applicable to all judicial sales is caveat emptor as to the title acquired. It has been distinctly held that the rule applies to orphans’ court sales and that disappointment in the title is no ground for relief: Bashore v. Whistler, 3 Watts, 490; Bickley v. Biddle, 33 Pa. 276; Vandever v. Baker, 13 Pa. 121. The purchaser at an orphans’ court sale is also bound to see that the proceedings are sufficiently regular to authorize the sale : Larrimer v. Irwin, cited in 4 Binn. 104. But all mere irregularities are cured by the decree of confirmation, which is an adjudication that the sale was made under the authority of the court: Potts v. Wright, 82 Pa. 498. But want of authority cannot be cured. Thus the confirmation of a sale ordered to pay legacies was held to be void for want of power to order the sale : Torrance v. Torrance, supra. The law does not authorize any such proceeding. An unauthorized decree of an orphans’ court for the sale of lands will not' stand until reversed in a regular course of appeal, but may be questioned in a collateral suit by or against a person claiming under that decree: Messinger v. Kintner, 4 Binn. 97; Snyder v. Snyder, 6 Binn. 483; Sager v. Mead, 164 Pa. 125.
The plaintiffs have shown a title derived by descent from the decedent, which had been relieved from his debts under the act [253] of 1834 for more than five years. This was a title that the orphans’ court had no power to take from them. They were the holders of an independent, and as to these creditors, an adverse title to the land, and stand in the same position so far as the right to deny the jurisdiction of the orphans’ court over their title as would any other adverse claimant. The order of sale operated only on the land of the decedent; not on that of any other person. It is because the land is a part of the estate, and is liable for his debts, that the court is empowered to order a sale. When it is discharged from the debts by a positive statute, the orphans’ court cannot subject it again to liability. The heirs as the holders of a perfect title free from liability to all unpaid debts of their ancestor are as we have said adverse claimants to the land. Their title is therefore beyond the power of the court, and they may assert it against the holder of the administrator’s deed in any court in which its validity may be called in question. In conclusion it is proper to say that the proceedings of the orphans’ court in this case ought not to be followed. The court should be satisfied, before making an order for the sale of real estate, that there are unpaid debts properly chargeable upon the real estate of the decedent. That the real estate described in the petition is bound by the lien of the said debts; and that it is necessary to have recourse to the land to enable the administrator or executor to pay them. The most convenient way for presenting these facts to the court is to embody them in the petition, stating the date of the decedent’s death, and whether the debts were at that time secured by mortgage or judgment. This practice would make such a blunder as was committed in this case impossible; it would make the duty of the purchaser easier of performance; and tend to the security and repose of titles in heirs and devisees as well as purchasers.
The judgment is now reversed and a venire facias de novo awarded.