majority">Hosmer, Ch. J.

The only difficulty in this case, arises from the complexity of the facts, and the peculiarity attending the title of the defendants. They are both tenants in fee simple and mortgagees ; and the plaintiff likewise is in the condition of a mortgagee, by virtue of the assignment to him of the mortgage given by Luther Walker to Holley & Coffing. For the purpose of perspicuity, I will first attend to the title of the defendants, and then to the title of the plaintiff.

The defendants are the widow, the administrator and the heirs of Isaac Green, and invested with all the rights appertaining to him, at his decease.

The freehold title to the premises was originally in Lucy Gridley. In April, 1812, she conveyed the land in question to Luther Walker, in fee simple ; and on the 11th of March, 1822, he released the premises to Lucy Gridley ; and she released them to Isaac Green. Green then became tenant in fee simple of the premises, and so continued until his death.

In the mean time, the land had been subjected to certain incumbrances, to which I shall next attend.

The first of them was a mortgage to Isaac Green, in security of a note for 52 dollars, 74 cents, executed to him, by Luther Walker and Lucy Gridley. It has been said, that this note was paid; but the facts on which this supposition was founded, decisively show, that it is still due. The note was formerly in the plaintiff’s possession, it is presumed, by assignment; and by him was delivered to an attorney for collection. Instead, however, of its having been collected, Green, the promisee, paid the amount of it to the plaintiff’s attorney, and resumed it into his own possession. It was the legal effect of this transaction, to annul the title of the plaintiff to the note, and to place the parties in statu quo ; so that the validity of the security is the same, as if it had never been assigned, but had ever remained, unpaid as it was, in the possession of Green. The point has of*345ten been decided, and by this Court was settled in Camp v. Smith, 5 Conn. Rep. 80.

The next incumbrance originated in a transaction between Luther Walker and Lucy Gridley. In consideration of a bond executed by Walker, with condition, out of the avails of the aforesaid property and from his own resources, to support her, during her natural life, she conveyed the premises to him ; and, at the same time, he executed a deed of them to her in fee simple, to be void on the performance of his engagement. Pursuant to agreement, he supported her until the 11th March, 1822, when he became insolvent, and incapable of further performing his contract; and Green, with the knowledge and cooperation of Walker, assumed the same engagement, and supported Lucy Gridley during the residue of her life. By virtue of this transaction, he essentially took the place of Walker ; discharged his duty ; and was invested with an equitable lien on the property mortgaged. This position, however, has been controverted, by the assertion, that the deed from Walker to Lucy Gridley, was not a mortgage, but that by the non-performance of the condition, the estate was vested in her, absolutely and indefeasibly. To sustain the proposition, many cases were cited, which, on a slight view of them, will be found to be in applicable. Conditions may be infinitely various ; and hence it is necessary to examine them with precision, in order to ascertain their legal effect. The citations of the defendants’ counsel, are all illustrated and exemplified, by the single case put in the 325th section of Co. Litt. 201. a. And see Shep. Touch. 117 to 120. Upon condition in a deed, says this author, if a man infeoff another, reserving a certain rent payable at a specified time, on condition that it shall be lawful, if the rent be behind, for the feoffor to enter ; if the rent be not paid, he may enter and oust the feoffee of his estate. (Vid. Chalker v. Chalker, 1 Conn. Rep. 79.) The reason of the rule is perfectly obvious. It is founded on the clear intention of the parties to the contract. The case before the Court, however, is widely different. Walker had obliged himself, by bond, to support Lucy Gridley, and in collateral security of this engagement, he executed to her a deed, defeasible on the performance of it. Conformably with the intention of the parties in this transaction, by familiar legal consequence, this was a mortgage. It was an incident to the principal contract by way of pledge, to render the performance of it secure. The case is the same *346precisely, as if, instead of agreeing to support Lucy Gridley for life, Walker had engaged to pay her one hundred dollars annually, that she might maintain herself, and had executed a deed with condition to secure this engagement. No objection exists, as was contended in the argument of the case, to the want of “Certainty in the contract. Id certum, est, quod certnm reddi potest; and the duty assumed is precise and reducible to reasonable certainty. Besides, the observation has no place. The bond is a legal contract, and comprising an ascertainable sum in case of non-performance. And the collateral security to the bond is free from every exception. Stoughton v. Pasco, 5 Conn. Rep. 442.

It appears from the preceding description, that the heirs of Green, are tenants in fee-simple of the premises, with an equitable lien upon them, to the amount of the note of 52 dollars, 74 cents, and the support of Lucy Gridley after the insolvency of Walker.

I now turn to the title of the plaintiff; and I think he has clearly shown, that he is a mortgagee of the premises, subject to the prior mortgages vested in the administrator of Green.

Walker, having an equity of redemption, unincumbered by the prior mortgages already discussed, conveyed the same to Holley & Coffing, as collateral security to a promissory note ; which note and mortgage, by assignment, have became the property of the plaintiff. The note has never been paid, but has gone into judgment, a part of which yet remains due.

This, then, is the equitable result. The plaintiff being the third mortgagee, is bound to pay the prior incumbrances to the administrator of Green, before he can render the pledge available to him; or what is virtually the same, to deduct their amount from his demand against Walker. This being done, he is entitled, on the common principles, to a decree of foreclosure against the defendants.

The other Judges were of the same opinion, except Brainard, J. who was absent.

Decree to be passed accordingly.

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