delivered the opinion of the Court.
Counsel for appellant say that two questions are presented to this court by this record.
First. Under the evidence in this case, is Sec. 70, Chap. 3, Rev. Stat. 1874, which says, “All demands not exhibited within two years, as aforesaid, shall be forever barred unless the creditors shall find other estate of the deceased not inventoried or accounted for by the executor or admin-' istrator,” a bar to this proceeding ?
Second. Does the appearance of the owner of the note, and the trustee in the trust deed, in the proceeding to sell the real estate to’ pay the debts of the deceased, and consenting that their default might be entered, operate as an estoppel to this suit ?
We quite agree with appellant in his contention that where the principal thing, the debt secured by mortgage, falls, with it that goes to which it was but an incident.
In the present case the debt is not gone; has not been paid; it is yet a subsisting obligation. The statute (Sec. 70 of Chapter 3, R. S.), is, in effect, that demands not exhibited within two years shall be barred, except as to estate of the deceased not inventoried or accounted for by the executor; the demand thus remains an obligation enforcible out of such estate as is excepted.
Only the equity which the estate of William C. Gibbons had in the property mortgaged to secure this debt was sold under the petition filed by his administratrix in the Probate Court; all that the estate owned, and no more, was what the purchaser acquired. Furness et al., Adm’rs, v. Union Mat. Bk., 46 Ill. App. 522; Levy v. Chicago Mat. Bk., 57 Ill. App. 143.
The petition did not ask, and the decree was not for, a sale of the premises free and clear of the mortgage; such a sale might, under a proper petition and decree, have been had under the provisions of Section 100 of Chapter 3 of the Revised Statutes.
It is true, as is urged, that for many purposes a mortgagor is regarded as the owner of property by him mortgaged; but in a court of equity he is treated as the owner of that only which he really owns.
The case of Mulvey v. Johnson, 90 Ill. 457, holding that after the lapse of the two years provided by statute, a deficiency decree could not, in foreclosure proceedings, be rendered against the estate, is in no wise favorable to appellant. No deficiency decree against the estate of William C. Gibbons has been rendered or asked.
It was not necessary to a saving of the rights that the mortgagees should answer the petition for sale filed in the Probate Court; that petition set forth the existence of the mortgage, and the court in its decree fully recognized the rights of the mortgagees.
The decree of the Superior Court is affirmed.