The defendant is undoubtedly liable to the plaintiff for the rent in question, pursuant to his agreement, unless the mortgagee, under Twitchell’s mortgage, had acquired a better right to the rent, so that the defendant’s payment to him was rightful. The plaintiff was purchaser of the equity of redemption upon Twitchell’s mortgage, and in possession on the 1st of April 1843, when he let the premises to the defendant. He therefore stood in the place of the mortgagor, with a right to take the rents and profits to his own use, until the mortgagee should think fit to enter, or do some equivalent act. Whether mere notice to tenants, by a mortgagee, to pay rent to him, or any other act short of an actual or constructive entry, will, under our laws, defeat the right of the mortgagor to take the rents and profits to his own use, may be a question. In Wilder v. Houghton, 1 Pick 87, it was held that such right was not defeated by the commencement of an action to foreclose, before judgment and entry under it. In Fitchburg Cotton Manuf. Corp. v. Melven, 15 Mass. 268, it was held that an entry by the mortgagee, and an eviction of the lessee, excused him from paying rent to the mortgagor. So where the mortgagee made an open and peaceable entry, and required the tenant to pay rent to him, it was held that the mortgagee had a right to recover the rent, although his entry might not be effectual for the purpose of foreclosing. Welch v. Adams, 1 Met. 494.
In the present case, however, we perceive no entry or any thing equivalent to an act of taking possession ; but, on the contrary, that which amounts to a waiver of any such claim on the part of the mortgagee. His receiving Houghton’s lease of Twitchell amounted to nothing more than an authority from the lessor to receive the rent of Houghton, during his. term ; and that term had expired before the present plaintiff let the premises to the defendant. The mortgagee neither made an entry on the defendant, nor gave him notice to pay to hiña ; but, on the contrary, brought an action against the *115present plaintiff, to foreclose — thereby av erring himself dis-seized and out of possession — obtained judgment and execution, and entered under that execution, in March 1844. Tt is for the time extending from the expiration of Houghton’s lease, in April 1843, to the entry of the mortgagee under his judgment, in 1844, that the mortgagee claimed to recover rent of the defendant.
In the case of Wilder v. Houghton, above cited, it was decided that the mortgagor was not liable to trespass for mesne profits after such a judgment; but, on the contrary, that he had a right to take the rents and profits to his own use, until the entry of the mortgagee under his conditional judgment. If this be so, a fortiori cannot the mortgagee have a suit against the mortgagor’s tenant, to compel the payment of rent to himself during the same time.
Exceptions overruled.