#### FLOYD FERRELL v. C. L. HINTON et al.

(Filed 19 February, 1913.)

1. Pleadings — Issues—Waiver.

When a party to an action involving the title to lands in dispute contends that a certain mortgage, necessary in the paper title of the adverse party, is barred by the statute of limitations, Revisal, sec. 391, subdivision 3, relating to mortgagor’s ten-year possession, an objection that the same was not specially pleaded is waived when, after the conclusion of the evidence and argument, he obtains permission from the court to open the case and offer evidence tending to show that the mortgage had been kept in date by payment, thus rendering the issue appropriate and necessary.

2. Appeal and Error — Objections and Exceptions — Assignments of Error — Practice.

An objection to an issue submitted to the jury must be made at the time, in order to base an assignment of error thereon, or it will not be considered on appeal.

Clark, O. J., and I-Ioke, J., concurring.

Appeal from Lane, J., at September Term, 1912, of Camden-.

Civil action for the possession of lands. These' issues were submitted:

*3491. Did W. C. Ferrell make payment on tbe mortgage debt in question, as claimed by defendants? Answer: No.

2. Are plaintiffs tbe owners and entitled to tbe possession of tbe lands in question? Answer: Yes.

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

From tbe judgment rendered, defendants appealed.

F. F. Aydlett for plaintiff.

Ward •& Thompson for defendant.

Bbown, J.

Tbis is an action to try tbe 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. Tbis mortgage was foreclosed under power of sale 6 June, 1910,- and deed executed to defendants.

,, Plaintiffs contend tbat tbe mortgage and debt secured in it were barred by tbe statute of limitations, Revisal, sec. 391, sub-div. 3, and tbat tbe power of sale was inoperative and tbe sale and deed made in pursuance of it void.

Tbe defendants contend tbat there is no such plea set up in tbe complaint, and tbat therefore bis Honor erred in submitting tbe first issue.

It is unnecessary to pass upon tbis point, as we do not think it is open now to defendants to raise it. Tbe record discloses tbat after tbe conclusion of tbe evidence and after argument to tbe court, tbe defendants’ counsel asked tbe court to open tbe case and permit them “to offer evidence tending to show tbat tbe mortgage bad been kept in date by payments within ten years from tbe foreclosure.” Tbe court permitted tbis to be done at tbe instance of defendants, and evidence was offered by both parties. Tbis request of defendants, in our opinion, rendered tbe submission of tbe first issue appropriate and necessary.

Tbe 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, tbe record does not show tbat defendants entered an exception to tbe submission of tbis issue, although it constitutes *350an assignment of error. The record shows that after the evidence was finally closed, 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.

Clark, C. J.,

concurs in the opinion of the Court for the reason given, and for the further reason:

The complaint alleges that the plaintiff is the owner and entitled to the possession of the land in question, without setting out his chain of title. The defendant answered, denying the allegations of the complaint and without setting out any chain of title. It was therefore open to the defendant to attack the validity of any deed offered by the plaintiff without having pleaded its invalidity. For a stronger reason it was open to the plaintiff to'* attack the validity of any deed offered by the defendant, without having pleaded its invalidity. Indeed, he could not foresee what deeds the defendant would offer.

When the defendant offered the deed from the trustee in a power of sale, under a mortgage which fell due 1 January, 1897, and it appeared that the mortgage had been foreclosed under said power of sale 6 June, 1910, the plaintiff was entitled to rely upon that evidence to assert the invalidity of the deed executed by the trustee. Menzel v. Minton, 132 N. C., 660, was corrected by Revisal, 104.4, which makes such power of sale inoperative after the lapse of ten years.

If there had been payments which would have taken such deed out of the statute, the burden was upon the defendant to show such fact. The jdaintiff could not have pleaded the statute of limitations to a mortgage and power of sale which were not set out in the answer. Besides, a reply is not required except when the answer sets up a counterclaim. When the answer contains matter of defense merely, or by way of avoidance, the plaintiff is not required to reply unless so ordered by the court. Revisal, 485.

Hoke, J„ concurs in concurring opinion.