(after stating the case as above). The learned counsel for the plaintiff contended on the argument here, that inasmuch as the property, both personal and real, of the deceased debtor, in the order mentioned, is subject first and certainly to be applied to the payment of costs of administration and the debts of the decedent, the Court had authority to direct a sale of the land to make assets for such purpose, and a proceeding and proper orders and decrees to that end would not be void, although the heir was not made a party thereto, and he cited several cases to support that contention. We cannot accept this view as correct in any aspect of it. The law thus admininistered might — no doubt would — very frequently work serious injury to the heir or devisee, and he would be left without any practical or efficient remedy. He should, as a matter of common justice, have just opportunity to see that the occasion had properly arisen for resort to the land déscended or devised to him, and to show the contrary if he could. But whatever may be the extent of the authority of appellate Courts in some States of the Union, to thus devote the land of deceased *171debtors to the payment of debts, without notice to the heir,, in this State, the statute, (The Code, § 1438), expressly provides that, “ No order to sell real estate shall be granted, till the heirs or devisees of the decedent have been made parties to the proceeding, by service of summons, either personally, or by publication, as prescribed in the chapter entitled Code of Civil Procedure.”
This provision embraces infants as well as adult persons. Hence this Court has repeatedly and uniformly held that such proceedings, decrees and judgments are void and of no effect as against the heir not in some sufficient way made a party to the same, whether infant or adult. Stancill v. Gay, 92 N. C., 462, and the cases there cited.
It distinctly appears in the case before us, that the feme defendant was not made a party, by service of process or notice in any way, to the proceeding in the Court of Pleas and Quarter Sessions in which a decree was made, directing a sale of the land in question, descended to her from her ancestor, to make assets to pay debts against his estate. During the whole time of the pendency of that proceeding, and for a long while afterwards, she wa’s an infant; she was not served with process, nor was her general guardian; nor was any guardian ad litem appointed to make defence, nor was-any defence made for her. The Court, therefore, did not obtain jurisdiction of her at all. The order of sale, indeed the whole proceeding, was as to her void and inoperative. Jurisdiction of the person was essential to a valid order. Stancil v. Gay, supra.
It was further insisted for the plaintiff that the proceeding and order of sale therein was cured and made effectual by the curative statute, (The Code, §387) making valid judgments and other proceedings against infants and certain other classes of persons in certain cases. This is a misapprehension of the true meaning of that statute. Neither by its terms, nor by just interpretation of the meaning, does it *172apply to or embrace cases where there was no service of process at all. It applies to civil actions and special proceedings, “ wherein any or all of -the defendants were infants, * * * * on whom there was no personal service of the summons,” &c. The statutory provision (The Code, §§181 — 214 —217, par. 2,) prescribing how the summons in civil actions and special proceedings shall be served on infants, requires, and required at and before the time of the enactment of the curative statute mentioned, personal service upon them, and likewise service upon the guardian, and whefe the infant is under the age of fourteen years, service must be made by delivering a copy of the summons to him “personally, and also to his father, mother, or guardian,” &c. The personal service upon the infant is not regarded, nor has it been, as so important as that upon his guardian, by whom he defends, and who is required to make defence for him, and it not unfrequently happened that there was no personal service on the infant, as the statute required. The object of the curative statute is to cure the judgment and proceeding, when such personal service was omitted, but it does not embrace cases where no service was made upon the infant or any other person in his behalf, as the statute requires to be done. Stancill v. Gay, supra.
The plaintiff, however, undertook to purchase the land, so far as appears, in good faith, and to the extent that the money he paid to the administrator was applied to the payment of debts of the intestate and the costs of administration that the personalty was insufficient to pay, to that extent he relieved the land in question, and is entitled to be subrogated to the rights of the creditors, whose debts and costs were so paid, and to have the sum of money due him charged upon the land. It would be unconscionable to allow the feme defendant in that case to have the land discharged of the debt due the plaintiff for money thus paid by him and applied to relieve the same., Williams v. Williams, 2 *173Dev. Eq., 69; Sanders v. Sanders, Ibid., 262; Scott v. Dunn, 1 D. & B. Eq., 425; Spring v. Harven, 3 Jones Eq., 96; Palmer v. Thompson, 4 Jones, 104.
The plaintiff must be charged with the rents of the land during the time he had possession of it.
So much of the judgment appealed from as declares that the plaintiff is not the owner of, nor entitled to the possession of the land, is affirmed. In other respects, it must be set aside, the administrator made a party defendant, an account be taken, and judgment given in accordance with the rights of the parties, to be ascertained and settled as indicated herein. To that end, let this opinion be certified to the Superior Court according to law.
No error. Affirmed.