The court below reversed the order of the -county court confirming the sale mainly upon the following *234grounds: (1) that tbe petition did not state tbe amount of the-debts; (2) that tbe mortgage interest was not ordered sold; (3) that tbe nunc pro tunc order was invalid; and (4) that delay in confirmation of sale released tbe bidder. Some other questions are discussed by appellant, but we regard tbe foregoing as decisive of this appeal. Sec. 3874, Stats. (1898),. provides that, when tbe personal estate of a deceased person shall be insufficient to pay bis debts with charges of administration, bis executor or administrator may mortgage, lease, or sell bis real estate, except tbe homestead when it is not subject to tbe debts and liabilities of tbe deceased owner, on obtaining a license therefor and proceeding in tbe manner provided in this chapter (cb. 167). Sec. 3874o-, Stats. (S-upp-. 1906: Laws of 1901, cb. 112, sec. 1), provides:

“Whenever tbe personal estate of any deceased person in tbe bands of bis -executor or administrator shall be insufficient to pay tbe amount of tbe charges of administration, bis executor or administrator may mortgage, lease or sell bis real estate (except tbe homestead when it is not subject to the debts and liabilities of tbe deceased owner), for that purpose on obtaining a license therefor and proceeding therein in tbe manner provided in this chapter. Tbe petition in such proceeding shall in addition to tbe requirements of sec. 3875 state the-amount of tbe charges of administration.”

Sec. 3875, Stats. (1898), provides, among other things, for a petition to sell in order to obtain a license, and that such petition must state “tbe amount of tbe debts outstanding-against tbe deceased, so far as tbe same can be ascertained.”'

Sec. 3881 as amended (Supp. 1906: Laws of 1901, cb. 112, sec. 2; Laws of 1901, cb. 283) provides:

“Tbe court shall make no order for tbe mortgaging, leasing- or sale of tbe real property of tbe deceased until upon examination it shall appear to said court:

“1. That tbe executor or administrator making such application has fully complied with tbe preceding provisions of this° chapter;

*235“2. That the debts for the purpose of satisfying which the-application is made are justly due and owing;

“3. That the personal estate of the deceased is insufficient for the payment of such debts or

“4. That the personal estate of the deceased is insufficient for the payment of the charges of administration.”

The foregoing and other sections from 3874 to 3883 inclusive, ch. 167, Stats., provide specifically for the sale of land when the personal estate of the deceased in the hands of the executor or administrator shall be insufficient to pay debts and administration charges. Sec. 3822, Stats. (1898), provides that the personal estate of the deceased which comes to the hands of the executor or administrator shall be first chargeable with the payment of debts and expenses, and if such personal property shall not be sufficient to pay the debts of the deceased and the expenses of administration the whole of his real estate, except the widow’s dower and the homestead, or so much thereof as may be necessary, may be sold for that purpose, on obtaining license therefor as provided hy ch. 167. Sec. 3880 provides that if it appear on the hearing to sell real estate that there is a contest as to the validity of any debt or claim which may be represented as existing against the testator or intestate the hearing on the petition shall be postponed until the liability of the estate for such claim is finally determined. Sec. 2271 read with subd. 2 of sec. 4971, Stats. (1898), respecting women, provides that when the owner of any homestead shall die not having lawfully devised the same, such homestead shall descend free of all judgments and claims against such deceased owner, or her estate, except mortgages lawfully executed thereon and laborers’ and mechanics’ liens, to the issue of such deceased woman. If the surviving issue shall not be minor children of such deceased woman, the homestead shall be subject to and charged with the expense of her last sickness and of her funeral, and the costs and charges of administration, but it is not liable for debts in the ordinary *236sense of the latter term. This is apparent from the proviso ■of sec. 2271 which relates to a case in which the homestead, is subject to debts. But that is not the case here. The aver-ments of the petition show that the homestead here was not subject to the debts and. liabilities of the deceased owner under sec. 2271. It cannot, therefore, under the new section, •3874a, Stats., be sold to pay. the amount of the charges of •administration, because that section expressly excepts the homestead when it is not subject to the debts and liabilities of the deceased owner. See. 3884, Stats. (1898), provides that whenever the homestead of the deceased is part only of a tract •of land, the whole of which was subject to a mortgage at the time of the death of the deceased, and it shall appear that all ■other real estate and personal property of the deceased has been applied to the payment of his debts or is insufficient therefor, and that the part of the mortgaged premises not included in the homestead cannot be sold separately therefrom without injury to the interests of the parties, the court may grant a license for the sale of the whole of the tract. The order of license shall direct that the entire estate or interest, including the interest of the mortgagee, be so sold. This license to sell shall not be made without the consent of the mortgagee, unless the mortgage debt is wholly due. The proceeds of this sale are to be applied (1) to the expenses of the license and •sale; (2) to the mortgage debt. The value of the homestead irrespective of the mortgage thereon is then to be ascertained and paid over to the owners by descent or devise, if they be adult, and the remainder, if any, applied to the payment of •debts. In the instant case the premises were a homestead subject to the mortgage which was wholly due, but it is not clear that the homestead was part only of a tract of land the whole of which was subject to a mortgage. Here the whole tract of land was less than a quarter of an acre, and there were two houses upon it. We need not, however, decide this question.

Assuming that the tract of land in question answered the *237calls of tbis statute tbe order of sale was invalid because it did not provide that the entire estate or interest, including the interest of the mortgagee, be sold. .This was not a defect, which could be cured by order nunc pro tunc after the land had been advertised for sale pursuant to the original written order and sold, and after objection made to such sale. The nunc pi'O tunc order proceeds upon an entire misapprehension .of the power of the court with respect to such orders. Lindauer v. Pease, 192 Ill. 456, 61 N. E. 454; Martz v. Mehlhop, 117 Ill. App. 77; Hegeler v. Henckell, 27 Cal. 491; Lombard v. Ward, 37 Oreg. 426, 61 Pac. 856. No> order made after the sale could alter the fact that up' to and at the time of sale the proceedings on their face showed to all bidders and all persons interested an invalid sale. The rights of parties would be very inadequately protected if, when attention were called after sale to an obvious disregard of statute on the part of the county court in the terms of one of its orders, that court could then declare that it made an oral order of sale differing from the written order and correct the latter to take effect prior to the sale; Whether sec. 3881 as amended, as regards the provision that “the debts for the purpose of satisfying which the application is made are justly due and owing,” was sufficiently complied with by showing the amount of the charges of administration, we need not and do not decide. It. appears in the petition that certain claims had been filed, and in the order for sale that these claims had been filed and remained unpaid, but it does not appear that they had been allowed at the time the order was made, except certain costs and charges of administration. We are therefore of the opinion that the order of sale was invalid, for the reason that it did not conform to the statute in respect to the sale of the mortgagee’s interest, and that the alleged nunc pro tunc order was beyond the power of the county court and invalid, and that the circuit court was right in reversing the order of the county court confirming the alleged sale.

Counsel for appellant refers us to sec. 3919 and similar *238•statutes relating to collateral attack.- But it must be borne in ¡mind tbat tbe instant case is a direct attack upon tbe proceedings for sale by appeal from tbe order of confirmation, and whether tbe proceeding here would be valid as against collateral attack is not before us.

Other questions discussed need not be considered. It is •clear upon tbe record tbat tbe court below was well within its power 'in setting aside tbe order of confirmation, and no abuse ■of discretion has been shown.

By the Court.- — Tbe judgment appealed from is affirmed.