Ferrell v. . Hinton , 161 N.C. 348 ( 1913 )

CLARK, C. J., and HOKE, J., concurring. Action for possession of lands. These issues were submitted:

1. Did W. C. Ferrell make payment on the mortgage debt in question, as claimed by defendants? Answer: No.

2. Are plaintiffs the owners and entitled to the possession of (349) the lands in question? Answer: Yes.

3. What is the annual rental? Answer: $20.

From the judgment rendered, defendants appealed. This is an action to try the title to land. Plaintiffs and defendants claim under a common source. Defendants claim under a mortgage executed by W. C. Ferrell and wife 6 January, 1896, and due 1 January, 1897, to C. G. Etheridge. This mortgage was foreclosed under power of sale 6 June, 1910, and deed executed to defendants.

Plaintiffs content that the mortgage and debt secured in it were barred by the statute of limitations, Revisal, sec. 391, subdiv. 3, and that the power of sale was inoperative and the sale and deed made in pursuance of it void.

The defendants contend that there is no such plea set up in the complaint, and that therefore his Honor erred in submitting the first issue.

It is unnecessary to pass upon this point, as we do not think it is open now to defendants to raise it. The record discloses that after the conclusion of the evidence and after argument to the court, the defendants' counsel asked the court to open the case and permit them "to offer evidence tending to show that the mortgage had been kept in date by payments within ten years from the foreclosure." The court permitted this to be done at the instance of defendants, and evidence was offered by both parties. This request of defendants, in our opinion, rendered the submission of the first issue appropriate and necessary.

The evidence having been introduced upon request of defendants, it is not open to them to object to the submission of an issue made necessary by their conduct.

Again, the record does not show that defendants entered an exception to the submission of this issue, although it constitutes an assignment of error. The record shows that after the evidence was finally closed, (350) counsel argued that the first issue was not material and not raised by the pleadings and should not be submitted, but the record fails to show that an exception to the submission of the issue was taken and entered at the time.

The judgment of the Superior Court is

Affirmed.