delivered the opinion of this court.
On the 29th March, 1839, Margaret Ilermange and Mary II. Hannon filed their bill in Baltimore County Court, as a court of equity, for the sale of certain real estate, situated in the city of Baltimore, which had been mortgaged by George Riston to Margaret Ilermange and another, and afterwards conveyed by Riston to Henry B. Griffith, who died prior to the *452filing of this bill, and whose widow and heirs were defendants.
On the 4th September, 1839, a decree was passed for the sale of the real estate, which was sold on the 30th April, 1840. The auditor filed his first account on the 2d October, 1840, a second on the 5th November, 1840, and the third on the 15th April, 1845, before which time the claim of the appellees was filed in the cause.
This claim is stated to have arisen as follows:—■
Catharine Diffenderfer, one of the appellees, who afterwards intermarried with Philip Reigart, the other appellee, was a creditor of Henry B. Griffith, deceased, on his note for $2,000. The personal estate of Henry B. Griffith being insufficient for the payment of his debts, on the 20th January, 1841, the said Catharine filed in the Court of Chancery a creditor’s bill, setting forth her claim, and alleging the insufficiency of Griffith’s personal estate to pay his debts. The widow and heirs of Griffith, by their answers, admitted the truth of the charges in the bill.
Under the commission to take testimony, the execution of the note to the said Catharine, and the insufficiency of the personal estate of the said Griffith, were proved by competent testimony.
On the 18th May, 1841, the Chancellor decreed the sale of the real estate of said H. B. Griffith, in Montgomery County. By virtue of said decree, the lands were sold by the trustee. On the 25th October, 1842, the auditor’s first account was ratified, which established the claim of the appellants, and his second, on the 6th January, 1843. This last account of the auditor shows that a large part of the complainant’s claim is unsatisfied. It is to obtain the payment of this unsatisfied balance of this claim out of the surplus of the proceeds, after payment of the mortgage debt, of the real estate sold by the decree of Baltimore County Court, this application is made.
The widow and heirs of H. B. Griffith pleaded the act of limitations to this claim, and excepted to the auditor’s account, which allowed the same. The court overruled the exceptions, *453and ratified the auditor’s account, and from this order of the court thus ratifying the auditor’s account, this appeal is taken.
The decree of the Chancellor of the 18th May, 1841, decided the insufficiency of the personal estate of Henry B. Griffith to pay his debts, and the decree for the sale of the real estate for the satisfaction of this debt, is a final decision in favor of the claim of this creditor, on the ground that the decree can only be passed, upon the establishment of the debt. But it is said in support of the plea of limitations, that it is a decree in rem, and this is true; but, it at the same time ascertains and decides the indebtedness of the deceased, and the insufficiency of his personal estate to pay the same. If the decree in this case is to be viewed and taken as passed by a court of competent jurisdiction, to adjudge and determine the indebtedness, and the law subjects the real estate of all persons who die indebted, not leaving personal estate sufficient to pay their debts, to be thus applied, what sound objection can be advanced, that an adjudication thus made, should not be deemed and considered at the date of the decree, as a judgment, final and conclusive of the debt, and insufficiency of the personal estate to pay the debt ?
It was insisted in the argument, that the decision of this court at June term, 1836, in the case of Belt, Wright & Carroll vs. Diggs et al. was in conflict with this view of this question. But upon examination, it will be found that that case is distinguishable from the one now under consideration. The decree in that case was for the sale of specific property, which had been mortgaged for the payment of a specific debt for which the mortgagor was not personally liable, and the legal estate being in the mortgagee, the office of the decree was to do nothing more than by a sale, to divest the equitable interest, to pay the debt for which the mortgaged premises only were answerable. It would not be contended for a moment, that under a decree to foreclose such a mortgage, that the personal liability of the mortgagor, or any other property or estate than that embraced and described in the mortgage and decree, could be affected thereby. Whereas, the decree on a creditor’s bill *454for the payment of debts is general, “ the real estate or so much thereof as is necessary for the payment of the debts.” The fund which the petition in this case prays may be applied to the payment of this debt, is the surplus proceeds of real estate, after the payment of the mortgaged debt in the hands of the trustee; and, as we think, the statute of limitations is not a bar, we affirm the order of the court below.
DECREE AFFIRMED.