
    BEST v. J. M. SCHERMIER.
    1. A receiver to collect rents from tenants of the mortgagor will not be appointed on filing a foreclosure bill.
    2. A mortgagor may authorize the second mortgagee to collect rents from tenants of the mortgagor and apply them as payments on his mortgage ¡ and he will not be restrained from doing so on the filing of a foreclosure bill by the first mortgagee.
    On the 18th May, 1846, Sehermier gave a mortgage to Ballentine for $700. He had given several prior mortgages on the same premises. Several judgments had also been recovered against him; some prior and some subsequent to the mortgage to Ballentine. One of the prior mortgagees, the complainant in this case, filed a bill for foreclosure and sale of the premises, making all the-mortgagees and judgment creditors parties defendants. This bill stated, that on the 18th May, 1846, Schermier assigned, transferred and set over to the said Ballentine the leases, rents, issues and profits of the mortgaged premises, and empowered him to collect and’ receive the rents due and to grow due. That Ballentine had already received some rents, and that a large amount of rents would shortly become due, and that Ballentine intended to collect the same and apply them to the payment of any money that might be due or become due on his said mortgage. The bill claims that the said rents should be paid on the prior mortgages, and prays foreclosure and sale, to pay the mortgages according to their priority; and that Ballentine be restrained from collecting the rents; and that a receiver be appointed to collect the same and hold them subject to the order of the court.
    An injunction was granted, and a receiver appointed.
    Ballentine answered the bill, and stated in his answer, that Sehermier, at or about the time of giving said mortgage to Balleutine, and further to secure the bond of Sehermier to him, secured by the said mortgage, executed an assignment to him, Ballentine, of all the rents, issues and profits of the mortgaged premises, and authorized him to collect the same, and apply them to or towards the payment of his said moi'fgagQ.
    
      A motion was thereupon made to discharge the order appointing a receiver and restraining Ballentine from collecting the rents.
    On the hearing of the motion, a deposition of A. C. M. Pennington was read, stating that Schermier, at the same time he gave Ballentine his mortgage, assigned to him the rents coming line, and appointed him attorney to receive the same; and that both the mortgage and the assignment of rents were the securities on which Ballentine advanced money.
    
      A. C. M. Pennington, in support of the motion»
    
      E. R. V. Wright and J. W. Scott, contra.
   The Chancellor.

I have uniformly denied applications to appoint a receiver of rents made on filing foreclosure bills. I have considered that the mortgagor is entitled to the rents while he is, in possession by his tenants. I am satisfied that the contrary practice was inconsistent with what is now well understood to be the nature of a mortgage, and led to great oppression. The view I had taken was sustained by the Court of Errors and Appeals in the case of Sanderson v. Price.

Schermier would not have been restrained from collecting the . rents; and, he having assigned them to Ballentine and authorized him to collect them and apply them as payments on his mortgage, I see no reason why Ballentine should not be permitted to collect them.

The order appointing a receiver of the rents and restraining Ballentine from collecting them will be vacated.

Order accordingly.

Cited in Cortleyou v. Hatheway, 3 Stockt. 43.  