
    White against De Villiers & Williams.
    On a sale of lands, a bond wás-given by the grantee to save the grantor harmless against a certain mortgage, which was an incumbrance on the land ; it was held, that by the fair construction of th.e condition, the -grantor was to be indemnified against the bond accompanying the mortgage, and for which the mortgage was given, merely as collateral security.
    This was an action of debt on a-bond, conditioned as follows: “ Whereas the above named James White did on the 19th day of September, in the year of our Lord, 1792, purchase of Michael Gratz, of the city of Philadelphia, a certain tract of-land situated in the county of Otsego, for the sum of 11627 10s. lawful" fnouey of the state of New York, arid for securing the payment thereof, mortgage the" said premisés to the said Michael Gratz. And whereas the. said James White' hath this day conveyed-the said land to the said Lewis De Yilliers, and Rensselaer Williams, jun. Now, the condition of this obligation is such, that if the above bound Lewis De Yilliers and Rensselaer Williams, jun. their heirs, executors and administrators, shall and do save and keep harmless, and indemnified the said James White and his assigns, of and from all suits, costs, damages and expenses whatsoever, which shall and may happen or come to him or them, for or by reason of the said mortgage, then the above obligation to be void, or else to remain in full force and virtue.”
    The defendants after craving oyer of the bond and condition, pleaded non damnificatus.
    
    The plaintiff replied that he was damnified, &c. in being obliged to pay a large sum .of money, by reason of the said mortgage, &c.
    The defendant rejoined, traversing that fact, and issue was taken thereon.
    The cause was tried before Mr. Justice Lewis, at the last circuit ip Otsego county. The plaintiff proved, that he had been compelled to pay the amount due on the bond accompanying the mortgage above mentioned, which bond was referred to in the mortgage and for the payment of which, the mortgage Was given as a collateral security. The judge at the trial, ruled that the plaintiff was entitled to recover the amount he had so paid on the bond.
    *A verdict was thereupon taken by consent for the [*174] plaintiff for the amount so paid, subject to the opinion of the court, and if the court should be of opinion in favor of the defendant, it was agreed, that a nonsuit should be entered.
    
      Burr, for the plaintiff,
    contended that the condition of the bond on which this action was brought, could rationally admit of no other interpretation, than that it was intended to indemnify the plaintiff against the debt which the mortgage was given to secure, and of course equally to indemnify him against the bond which accompanied it.
    
      Van Vechten, for the defendant,
    argued that the bond was not within the tenor of the condition, which was expressly confined to the mortgage, and that the court could not by construction extend the sense of the contract.
   Per Curiam.

The land mentioned in the condition was sold by the plaintiff, subject to the incumbrance of the mortgage, and under an agreement to be indemnified against it. The amount due on the mortgage must, therefore, have entered into the price, and according ,lo the Spirit, of the contract, was to be paid by the defendant.

The bond and mortgage could not have been considered as separate debts. They were concurrent securities for, the same demand, and the indemnity against one includes an indemnity against both.

We are, therefore, of opinion, that the plaintiff is entitled to recover according to the verdict.

Judgment for the plaintiff. 
      
      
         Verba intentioni non e contra debent inservire. Parkhurst v. Smith, Willes, 332. The expression, therefore, is secondary in importance to the intent of the parties, which is to be ascertained from the terms of the contract, the subject matter and the situation of the parties, and when ascertained possesses controlling influence. Steph. N. P., 1060, and references. Wilson v. Troup, 2 Cowen, 195. Quackenboss v. Lansing, 6 Johns. R. 49. Marvin v Hone, 2 Cowen, 781. Ball v. Follett, 5 id. 170. Sumner v. Williams, 8 Mass. R. 214. Fowls v. Bigelow, 10 id. 379. Hopkinss. Young, 11 id. 302. Howland v. Leach, 11 Pick. 154. Hollingsworth v. Fry, 4 Dali. 345. Patricks. Grant, 2 Shepley, 233. And this is the rulo of the French Civil Code; B. 3, tit. 3, § 5, art. 1158, 1163, 1164. In construing a contradi,, the court will examine the motives that led to it, and the object intended to be effected by it. Davis v. Barney, 2 Gill & Johns. 382. As, if a person borrow a horse for a time, it will be implied that it was part of the agreement that he should feed it, whilst in his possession. Handford v. Palmer, 2 B. & B. 359. Or, if one give a note for 201. borrowed and received, “ which I promise never, to pay,’.’ he will be liable upon it as a promissory note. Simpson v. Vaughan, 2 Aik. 32. Or if one give a bond for the payment of money, with a condition that it shall be void if the money is not paid, the bond itself is left in full force as a perfect contract. Vernon v. Alsop, T. R. 68 ; 1 Lev. 77, S. C.; 1 Sid. 105; see also Finch’s Law, 52. Stockton v. Turner, 7 J. J. Marsh. 192, Gully v. Gully, 1 Hawks, 20. Ayers v. Wilson, 1 Doug. 384; (though this case goes also upon the general principle that the condition being repugnant to the bond is to be rejected.) See further upon this rule, Com. Dig. Agreement, C. Chitty on Contracts, 74, et seq.; Story on Contracts, 148, et seq.; where a large number of authorities are cited and commented on.
     