Hyde

This action was brought to restrain the sale, under execution against the property of Peter Van Valer, of certain lands conveyed by Van Valer to plaintiff in October, 1884. The question is whether that deed was intended to secure an indebtedness, and was, there *524 fore, a mortgage. That it was given as security is affirmed by the judgment creditor and denied by the plaintiff.

Defendant recovered judgment, and this appeal was taken by plaintiff from the judgment and from a refusa] of a new trial.

The main contention here is that the evidence does not sustain the finding of the court upon the issue above stated. After a careful consideration of the evidence, as shown in the record, I do not think the conclusion reached upon that issue can be disturbed here. The evidence is voluminous, and discussion of it would not be useful.

I think, however, the court erred in permitting defendants to prove by the witness Mannheim statements made by Van Valer nine years after the execution of the deed, impeaching the title conveyed thereby to plaintiff, by showing that it was given as security for a loan.' Van Valer had been called by defendants, and as their witness had testified, in…