
    MORGAN v. STRINGER.
    No. 1416-5616.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    Walsh & Smith, of Wichita Falls, for appellant.
    Mathias & Caldwell, of Wichita Falls, for appellee.
   HARVEY, P. J.

The Court of Civil Appeals has submitted a certificate containing a certified question. The material portions of the certificate read as follows:

“W. A. Freeland executed two mortgage liens on a lot situated in the City of Wichita Falls; the first being in favor of H. L. Stringer, the second being in favor of Emory Morgan. The second mortgage was executed and duly recorded before the first mortgage was filed for record.
“This suit was ’ instituted by Stringer to foreclose his mortgage; Freeland the maker and also Morgan being made parties defendant. • Morgan filed an answer in which he alleged he was an innocent lien holder without notice of Stringer’s prior mortgage, and he prayed for a foreclosure of his lien against Freeland and also against Stringer as a preference lien. Freeland filed no answer, either to Stringer’s suit or to Morgan’s suit and judgment by default was rendered against him in favor of both of those lien holders.
“The issue of priority of Stringer’s and Morgan’s liens was tried before a jury who returned findings to the effect that Morgan had actual notice of Stringer’s lien at the time his lien was taken, and upon such findings the court rendered a judgment establishing Stringer’s lien as superior to that of Morgan’s and foreclosing both liens with directions that the proceeds of sale be applied first to Stringer’s lien before satisfaction of Morgan’s lien.
“Morgan has prosecuted an appeal to this court from that judgment.
“Upon the trial the plaintiff introduced the note and mortgage executed by Freeland in his favor. Plaintiff’s trustee then testified on cross-examination that Stringer’s - mortgage was not filed until after Morgan’s lien had been recorded. The plaintiff then rested.
“Morgan then introduced his note and mortgage and testified that he paid a valuable consideration therefor and took the same in good faith without any notice of Stringer’s mortgage; and further that before taking his lien he had the mortgage records of Wichita county duly examined and found no other prior lien against the property.
“Plaintiff then introduced Freeland to prove that Morgan did have actual notice of the first mortgage at the time the second was taken. As shown in a bill of exception appearing in the transcript, without any objection on the part of Morgan’s counsel to leading questions, Freeland on direct examination testified in varying and contradictory terms, stating repeatedly that he did not remember whether or not he told Morgan of Stringer’s lien at the time the second mortgage was executed, while many of his answers were inferentially of a contrary import. The plaintiff’s counsel then exhibited to the witness an affidavit made by the witness on the 28th day of September, 1928, some four months prior to the date of the trial, which contained the statement that at the time the witness gave to Morgan his lien he told Morgan that that lien was inferior and subject to Stringer’s lien which had heretofore been executed.
“The witness admitted his signature and verification of the affidavit. He was then questioned by plaintiff’s counsel at length, some of the questions being as follows:
“Q. Did you sign and swear to this before Mr. Ginnell on the 28th day of September, 1928? A. I signed it.
“Q. Is what is stated in there true? A. I would not swear whether it is true or not, I signed it, because they insisted on me signing it; but whether every word in there is true, I won’t swear.
“Q. But you swore to it before Ginnell and told him that was the truth. A. Well part of it is, I would not swear to it.
“Q. Which part is true, which part is not true that you swore to before this suit was filed? A. I cannot say which one of the Morgans I talked to.
“Q. What did you talk about? A. About this property.
“Q. About Stringer’s lien? A. Well we talked about all the properties and the liens against them.
“Q. Did you mention to any of the Morgans that Stringer had a lien on his property? A. I suppose everybody knowed it.
“Q. I- want to know if you told them that, did you? A. Well, I do not know just what I said about it.
“Q. Did you tell them that? ,A. I could not testify whether we talked about it or not.
“Q. Now after you signed this deed of trust to Emory Morgan, did you ever talk to Mr. Morgan about the Stringer lien? A. Yes, it seems like we talked about it.
“Q. What did you say about it? A. I don’t remember.
“Q. Did you mention the Stringer lien? A. No sir, I never mentioned it.
“The plaintiff then offered the affidavit referred to in the testimony, which reads as follows:
“ ‘September 26, 1928.
“ ‘Mr. I-I. L. Stringer,
“ ‘Wichita Falls, Texas.
“ ‘Dear Sir:
“ ‘On the 14th day of April 1927, I executed a deed of trust in your favor for $1000.00 giving as security a lien against the following property in the city of Wichita Falls, Texas. A portion of Block No. “A.” Kemp’s west end addition to Wichita Falls, Texas.'
“ T stated to you at the time that there was no lien against the above property.
“ ‘At a later date a deed of trust was given to Emory Morgan for Morgan Lumber Company in the sum of $2000.00 on the same property and at the time I gave such lien to said Morgan I stated to him that it was a second lien subject and inferior to said lien above mentioned, given to said H. L. Stringer, and therefore, they had notice that your lien existed at the time.
“ T here and now after being duly sworn state that the above statement is true and correct to the best of my knowledge and belief.
“ ‘W. S. Freeland.
“ ‘State of Texas, County of Wichita.
“ ‘Before me the undersigned authority, a Notary Public in and for Wichita County, Texas, on this day personally appeared W. A. Freeland known to me to be a credible witness and after being duly sworn by me stated that the above statement was true and correct.
“ ‘Given my hand and seal of office this the 28th day of September A. D. 1928.
“ ‘L. E. .Tunell,
“ ‘[Seal.]
“ ‘Notary Public Wichita Oounty, Texas.’
“To the introduction of the affidavit the defendant Morgan objected on. the following grounds:
“That it was an -ex-parte statement made by a party adverse to Emory Morga-n — -not made in his presence and made by a witness introduced on behalf of the plaintiffs and was hearsay as to defendant, Emory-Morgan and was an attempt by the plaintiff to impeach his own witness and that the witness had testified in person fully on both direct and cross-examination as to the facts therein contained.
“On a former day the majority of this court sustained appellant’s assignment of error to the introduction of Freeland’s affidavit-and reversed and remanded the cause for another trial. * * * The majority concluded that plaintiff could not introduce the affidavit even for impeachment purposes since the witness had given no testimony on the witness stand which disproved plaintiff’s case. His testimony, which was often repeated, to the effect that he did not remember whether or not he had told Morgan of the prior lien at the time the second mortgage was given was negative in its character, and did not tend to refute plaintiff’s allegation of actual notice to Morgan of the prior mortgage. The rest of Free-land’s testimony was favorable to the plaintiff. Although Freeland was a defendant in the case, yet in the opinion of the majority he was not a hostile witness to plaintiff’s suit and not interested in the issue between the two lien holders, since he had suffered default judgments in favor of both. Justice Buck dissented from that holding; it being his opinion that the assignment should be overruled and the judgment of the trial court affirmed. * *
“Stringer has filed a motion for rehearing which is pending in this court and has also made application for a certification of the case to the Supreme Court by reason of the different conclusions reached and noted above. The motion to certify has been granted, and we now here certify to your Honors, the question whether or hot the assignment of error to the introduction of the affidavit of Freeland should be sustained or overruled. ⅜ * ⅜ ”

The affidavit in question is, of course, incompetent to prove the truth of the statements contained therein; no contention to the contrary is urged. But counsel for Stringer insist that said statements are admissible in evidence, in Stringer’s behalf, for impeachment purposes. As a rule, where a party is surprised by the testimony of a witness called by him, he is entitled to impeach the witness by showing statements made by the latter at another time, which are contradictory of his testimony given in th.e pending trial. The rule, however, is not without limitation. The testimony thus sought to be discredited must be such as disproves, in some degree, the case of the party by whom the witness is called. It is not enough that the witness simply disappoints the expectations of such party, by failing to give testimony as beneficial as was expected. Champ v. Commonwealth, 2 Mete. (Ky.) 17, 74 Am. Dec. 388; Moore v. R. R. Co., 69 Miss. 243; Hull v. State, 93 Ind. 128; People v. Jacobs, 49 Cal. 386; Force v. Martin, 122 Mass. 6; Culpepper v. State, 4 Okl. Cr. 103, 111 P. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; 28 R. C. L. p. 646.

When the testimony of Freeland is subjected to the above test, no occasion for impeachment is discovered. Freeland was called by Stringer to testify to the fact that Morgan, at the time the second lien was given, knew of the first lien. Even though his testimony be taken as sufficient to raise this fact issue, and as to this we express no opinion, the most besides, that can be said of his testimony, is that it is not as definite, in respect to the fact sought to be proved, as Stringer expected it to be. The affidavit was incompetent to supply this deficiency.

The assignment of error to the introduction of the affidavit should have been sustained, and we recommend that the certified question be so answered.

CURETON, C. J.

The opinion of -the Commission of Appeals in answering the certified questions is adopted and ordered certified.  