
    Mary E. Craft, Appellant, v. I. Wheeler Brandow, Late Sheriff of Greene County, Respondent.
    
      A pa/rty may not impeach his own witness — levy on mortgaged chattels under an execution against the mortgagor, after default and possession taken by the mortgagee — effect of a wrong name being inserted as that of the mortgagee.
    
    A party calling a witness thereby asserts his credibility, and is not in a situation to impeach his testimony by showing that such testimony differed from that given by him in a previous proceeding.
    Where personal property covered by a chattel mortgage has passed, upon the mortgagor’s default after the mortgage was past due, into the mortgagee’s possession, the only interest remaining in the mortgagor is an equity of redemption which can be reached by the mortgagor’s creditors only by a proceeding in equity and not by a levy and sale.
    The insertion in the body of a chattel mortgage, through the mistake of the scrivener, of the name of one James Stead, as mortgagee, instead of Sylvester B. Sage, as was intended by the parties, does not affect the validity of the mortgage as between the mortgagor and Sage.
    It is not necessary that the mortgage should be reformed in order to constitute a defense to the sheriff for a refusal to levy upon the mortgaged property under an execution against the mortgagor.
    Appeal by the plaintiff, Mary E. Craft, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 4th day of December, 1899, upon a nonsuit granted by the court after a trial at the Greene Trial Term.
    
      
      A. O. Griswold, for the appellant.
    
      Egbert Palmer, for the respondent.
   Per Curiam :

On -January 8, 189J, the plaintiff placed in the hands of the defendant, as sheriff of Greene county, an execution against the property of Jacob Craft and Lucinda Craft for $29.0.93. The defendant thereupon levied the same upon property of the value of’ about $800. On January eleventh, one Sylvester B. Sage, by letter -of that date,' notified the defendant that he claimed such property by virtue of a chattel mortgage.upon the sanie, and again, on February twenty-fom'th, he forbade the sale thereof and demanded from the sheriff that he discharge. the levy. The sheriff thereupon, released such property from the levy and returned the executions unsatisfied. This action is brought to recover from the sheriff the amount of such execution^ on the claim that the plaintiff’s debt, should have been collected from the levy so made.

If such mortgage, under which Sage. claimed the property in question,. gave to him a right prior to that of the levy, then the sheriff cannot be held liable for having returned this execution unsatisfied, because it is not claimed that there was any other property from which he could have collected it. If, however, such, mortgage, as against the plaintiff, was subordinate to her execution,, then this action should have been maintained.

There seems, from the evidence, to have been no dispute but that the chattel mortgage in question was given as follows: Lucinda Graft,, one of the debtors in the execution, and the person who. then owned, the property, on June 24,1896, was then indebted to Sage, and in consideration of such indebtedness and some $40. or more then advanced, to her by Sage, executed and delivered to Sage the mortgage in. question, to secure the payment of the sum of $128.84 on November 1, 1896. It was expressed in such mortgage that in such sum of $128.84 was included a judgment in favor of said Sylvester B.. Sage against Jacob Craft and Lucinda- Craft heretofore recovered before W. W. Bennett, justice of the peace.” In. such mortgage,, however, the. name- of James Stead was written as party of the second part, and,.therefore, in terms the amount thereby secured was payable to him and the property in question was transferred ..to-him. The attorney who drew the mortgage was instructed to make it to said Sage, and the insertion of the name of Stead, instead of Sage, was evidently an error on his part. On the back, the mortgage was indorsed : Lucinda Craft to Sylvester B. Sage. Dated June 24, 1896; ” and it was promptly filed in the proper offices by said Sage. It does not appear that Stead knew anything of the transaction, and he makes no claim whatever to the property therein described. The fact that Stead’s name, instead of Sage’s, was in the mortgage as the party of the second part was not discovered until after the levy of the execution above referred to. These facts are proved by the evidence of the witnesses sworn on the part of the plaintiff; and although the facts were elicited on cross-examination and under the objection of the plaintiff, yet they are not contradicted, and on the evidence must be taken as true.

The mortgagor, Lucinda Craft, made default in the payment of such mortgage, and said Sage testified that, soon after November 1, 1896, he took possession under such mortgage.

The property seems to have been located in' a summer hotel, vacant during the winter time, and the possession was taken by Sage’s hiring Jacob Craft to look after and care for it and by paying for the feed of the live stock included in it. On March 24, 1897, he sold it at public sale.

Sage was called and sworn as a witness by the plaintiff, and upon his cross-examination he testified to taking such possession in the manner above stated. The plaintiff earnestly insisted on the right to show, by Sage, that he had previously testified on a hearing before the county judge in supplementary proceedings against Lucinda Craft, that he never took possession of the property under the mortgage; and the refusal of the trial court to allow that question is urged as a reversible error before us.

Such a declaration of the witness out of court could not be received as evidence of the fact. It could be pertinent only as an impeachment of the witness’ statement as given on the trial. But, having been introduced into the trial as plaintiff’s witness, he had thereby asserted his credibility and was not in a situation to impeach it. Clearly, there was no error there. (Becker v. Koch, 104 N. Y. 394, 401.)

If, then, this mortgage was operative at all as against this levy, it presents a case where personal property included in a mortgage has passed upon the mortgagor’s default, after the mortgage was past due, into the mortgagee’s possession, and, hence, the mortgagor, Lucinda Craft, had no leviable interest in it. All that remained to her was an “equity of redemption” that could be reached only by a proceeding in eqiiity, and not by a levy and sale. (Darrow v. Wendelstadt, 43 App. Div. 426 ; Kimball v. Farmers & Mechanics’ Nat. Bank, 138 N. Y. 500, 504.)

But the plaintiff claims that the contract in the mortgage, being by its terms to pay Stead and not Sage, it has never been properly filed as a debt to Sage; that until reformed and by judgment of court made to express what Sage claims to have been the real contract, viz., a mortgage to himself, it never gave Sage any rights whatever in the property superior to the lien of the execution;- and that inasmuch as Stead repudiated any claim to the property, the sheriff was in' fault for not proceeding with the salé.

But it is clear on the evidence before us that between Sage and Lucinda Craft, Sage could have enforced such mortgage against her at any time after her default. As between them, it was a valid mortgage to Sage, and in whatever proceedings were taken to enforce it, he could have proveti the foregoing facts and thus established his rights to the property under it.

The sheriff, claiming to take the property on an execution against Lucinda Craft, would have no better defense to the claim of Sage than she would have.

The statute requiring süch a mortgage to be filed as against judgment creditors, would not aid him, because the mortgage was duly filed by Sage, as a mortgage executed to him.

Therefore, the sheriff, by showing that Sage had possession of the property in question, and that as • against Lucinda Craft he could hold it under such mortgage, also showed that, as against the execution in his hands, it was not the ■ property of Lucinda Craft, upon which a levy could be made.

Any evidence which tended to establish that fact was within the real issue tendered by the complaint in this action, and, hence, was admissible under, the denials and averments contained in the defendant’s answer.

The defendant does not attempt in this action, to change or reform the mortgage in question. He merely shows that Sage was in possession of the property which it is claimed he should have sold, and was in a position to hold it as against the lien of his execution. If Sage was in a position to perpetually restrain the sheriff from selling, it would be a valid justification for his releasing the levy.

The plaintiff further complains that he was not allowed to show that Sage sold the property in question under a bill of sale given by the mortgagor on March 5, 1897.

If, as the undisputed evidence shows, Sage took possession of the property under the mortgage, and claimed to hold it thereunder—as he did claim in his letter to. the sheriff ■—■ under date of January eleventh, it is of no consequence how his sale was made nor that he, subsequently to the return of the execution, took such bill of sale. Hence such ruling furnishes no ground for reversal.

We conclude that from the'evidence, as it stood when the plaintiff rested her case, no cause of action had been shown against the defendant. It appeared that he was not justified in selling the property which it is claimed he should have sold. Therefore, the non-suit was properly granted, and the judgment must be affirmed.

Judgment unanimously affirmed, with costs. Edwards, J., not sitting.  