¶1There was no payment of the rent in question to Maujer, nor was it merged or extinguished by his taking the note, and the mortgage on the goods of Julia C. Hixon.
¶2The idea of a payment, is fully negatived by the receipt which he gave, as well as by the statement in the answer, ivhich omits to allege that the securities were accepted in satisfaction of the rent.
¶3Instead of there being a merger, the note was a debt of a lesser *71grade than, the rent, and the mortgage was no debt at all. It went to secure the debt represented by the note.
¶4In short, there is no doubt but that Maujer when this bill was filed had a right of distress for the rent in arrear.
¶5It remains to be seen whether the complainant by his bill and the appointment of a receiver, became entitled to the rent which Maujer had secured, but had not collected.
¶6The mortgage debt was all due, and the lands mortgaged were wholly inadequate to satisfy the amount. It appears also that the mortgagor was greatly embarrassed in his circumstances, if not insolvent; but this is perhaps, immaterial, Maujer having taken his conveyance from the mortgagor, subject to the mortgage.
¶7It is well settled that in a case like this, the court of chancery will appoint a receiver of the lands mortgaged, and will restrain the mortgagor or his grantee from collecting the accrued rents, unpaid by the tenant, as well as the future rents. This is clearly the effect of what the Chancellor held in the case of Howell v. Ripley, (10 Paige, 43.)
¶8The whole object of this proceeding, is to divert the unpaid rents from the mortgagor to the mortgagee.
¶9The cases cited by the complainant’s counsel, show that as between the mortgagor and the mortgagee, the latter has a legal right to the rent in arrear, after the mortgage becomes due. Where the lands were demised before the mortgage was given, the cases establish that the mortgagee might distrain for such rent; and they also prove that upon the tenant’s attorning, he would have the same remedy upon a lease made by the- mortgagor after the execution of the mortgage.
¶10Here the lease was subsequent, and the tenant had not attorned. Previous to the revised statutes, there was a legal remedy in such a case, by the action of ejectment. That remedy is now taken away, but the right remains, and courts of equity enforce it by injunction and receiver.
¶11In Howell v. Ripley, the Chancellor decided that the junior mortgagee who had resorted to this court in that mode, was entitled to the unpaid rents accrued, and that he should hold them against the prior mortgagee, until the latter availed himself of *72the same remedy. And he considered that the collection of the rents by ther eceiver in behalf of the junior mortgagee, was equivalent to a collection of the same by such mortgagee in possession.
¶12In the same case, Ire observed that the prior mortgagee, on obtaining a receiver, would intercept any rents accrued which the receiver first appointed had not actually collected.
¶13The result of the law on the subject is, that a mortgagee whose debt is all due and is defectively secured; by filing his bill to foreclose his mortgage and procuring a receiver, obtains an equitable lien on the unpaid rents of the lands mortgaged.
¶14In this case the rent was still due by virtue of the lease, it of right belonged to the mortgagee, and his bill having intercepted it, the amount collected pending the suit, must be paid to the complainant.
¶15As to the point that the property from which the rent was collected, did not belong to the tenant; there are two answers to it. It was property upon the land demised, and for aught that appears, was subject to be distrained for the rent. And the mortgagee being entitled to the principal debt, the rent; was entitled to all the securities appurtenant to it.
¶16Decree accordingly.