Gilchrist, J.
The condition contained in the mortgage from Marsh to the plaintiff, of the 5th of December 1840, by which the oxen in controversy were conveyed, was that the mortgager should pay a certain note which he had made on the third day of November preceding for fifty dollars, payable in one year to the mortgagee, or should save the latterharmless from the consequences of having as the surety of the mortgagee, on the same third day of November,signed a note for a like sum, payable at the same time to one Foss.
If we consider this as a disjunctive condition, it is subject to the rule which gives to the obligor, for whose benefit the condition is inserted, an election between the two things to be done. Comyn’s Nig., Condition K., 1. And a plain corollary to that rule is, that if one of the alternative things become impossible by the act of God, or by the act or default of the obligee, or if by such conduct on his part as amounts to a clear waiver of its benefits the obligor becomes excused from the performance of one part, then he is excused from performing the other part. Com. Nig., Condition K., 2.
The pi’esent case shows the reasonableness and the justice of the rule. Although the condition is in form disjunctive, its effect is single, and it is plain that the note which the mortgager gave to the plaintiff and described in the mortgage, is merely collateral to the implied promise of indemnity which the mortgage was taken to secure, and was designed for no other purpose than to give the plaintiff an additional remedy to enforce that promise. It would therefore be wholly absurd to hold, that upon the release- of the principal thing, another which is its mere accessary and security should remain in force.
It is equally clear from reason and authority that a release of the debt or other thing secured by a mortgage, is a release of the mortgage. There is nothing in the form of the release in this ease that renders it probable that the parties intended or expected to limit or restrain the ordinary effect of such an act in this particular.
It has become unnecessary to consider the other points made by the>defendant. And there must upon the ground stated be
Judgment for the defendant.