Present — E. D. Smith, Dwight and Johnson, JJ.
By the Court
E. Darwin Smith, P. J.The plaintiff is a purchaser of the premises in question, by deed subsequent to the defendant’s mortgage, of which he had constructive notice by the registry, although he testifies that he had not actual notice in fact at the time he took his deed.
*124The defendant’s mortgage was dated June 1st, 1858, and was duly recorded ¡November 20th, 1858, and the plaintiff’s deed was given April 10th, 1861.
The plaintiff, not being a creditor to Shadbolt, was not entitled to give evidence tending to show that the defendant’s mortgage was made and given with intent to hinder and' defraud the creditors of Shadbolt. (Moseley v. Moseley, 15 N. Y., 334; Sanger v. Eastwood, 19 Wend., 514.) And, not being a purchaser for a valuable consideration, he can only impeach the defendant’s mortgage as a subsequent grantee of the premises, standing in the footsteps of his grantor, and upon the same precise ground which would have been available to such grantor if he had not conveyed, said premises.
The mortgage being a conveyance, under seal, which imports a consideration, Shadbolt, the plaintiff’s grantor, could not be allowed, at common law, to impeach it. (Parker v. Parmele, 20 John., 130; Calkins v. Long, 22 Barb., 99; Gilleland v. Failing, 5 Denio, 312.) According to these last two cases, neither Shadbolt nor the plaintiff, as his grantee, could set up the want of consideration for the mortgage as an affirmative ground of action under the provisions of the Revised Statutes. (2 R. S., 406, §§ 77, 78.) These cases hold that the right given in the statute to impeach a sealed instrument for want of consideration, is limited to a defense or offset, when the action is brought upon the instrument itself.
But, assuming that the plaintiff could sustain his action by proof that the bond and mortgage were wholly voluntary, and given and executed without any consideration, the proof offered by the plaintiff, by the witness, Mrs. Shadbolt, at the trial, was properly overruled. It was not directed to sustain any particular allegation of the complaint, but to contradict the defendant’s testimony in respect to the consideration of the mortgage.
A party who is surprised by what a witness, called by him, testifies to on the trial of a cause, may doubtless prove the *125affirmative' facts of his action or defense hy other witnesses, even though such proof, in effect, contradicts such former witnesses. (1 Greenl. Ev., 442, 443; Cowen & Hill, 533, 780.)
The plaintiff offered to prove that the two notes spoken of hy the defendant in her testimony, as constituting part of the consideration of the mortgages, were gratuitous; that no services were rendered by her to Shadbolt, and no relation of an employer and employee existed.
This was directed to contradict the defendant in respect to these notes, first introduced into the case by her testimony; and the offer was also to prove that such notes were given for immoral and illicit intercourse. The evidence simply tended to impeach the defendant.
The other offer, to show that the defendant was, at the time of the mortgage, indebted to Samuel Shadbolt, proved nothing tending to make out a defense. It would have been proper proof to impeach the mortgage, if the plaintiff was suing as a judgment creditor, and the object was to show that the bond and mortgage were máde to hinder and defraud the creditors or Shadbolt.
I think no error occurred on the trial, and that the judgment should be affirmed with costs.
Judgment affirmed.