The refusal of the Court to submit the usual issue involving the title, instead of the more specificinquiry as to the date of delivering the deed to the defendant Parker, is mainly relied upon as ground for new trial, though the denial of the motion for judgment, upon the findings, was not abandoned on the argument here. In the absence of an allegation of fraud, the controversy before the jury was narrowed down to a single question. As both parties claimed under Wiley Edwards, if he delivered the deed to Joseph Parker on the 23d of January, 1879, when it bears date, then he had an older and better title than the plaintiff, who claimed under the mortgage to David Barnes, executed October 6th, 1880. But if the deed to Parker was delivered after the execution of that to Barnes, as alleged, it took effect from its actual delivery. In the exercise of a sound discretion, it was the province of the Judge below to determine whether he would submit the usual issue or another raised by the pleadings, since it was involved in the broader issue, in its stead. Doubtless his Honor thought that the jury would more readily comprehend the question of fact upon which they were passing if their attention should be directed to' it by the more specific inquiry. There is no restriction upon his power to settle the issues, except that they shall be such as arise out of the pleadings, such that upon the verdict the Court may proceed to judgment, *100and such as to afford to the parties an opportunity to present to the jury any material view of the law arising out of the testimony which counsel may request • the Court to embody in the instructions. McAdoo v. Railroad, 105 N. C., 140; Denmark v. Railroad, 107 N. C., 185; Boyer v. Teague, 106 N. C.. 576; Bonds v. Smith, 106 N. C., 553. It is familiar learning that a deed takes- effect from the time of its delivery, not from its date. The law presumes, nothing further appearing, that a deed was delivered when it bears date, though it is not essential to its validity that it should contain a date at all, but the presumption may be rebutted by evidence aliunde, in which casé it becomes operative from the actual day. of delivery. The whole controversy, therefore, depended upon the question whether the deed to Parker took effect before or after October 6th, 1880, when Edwards conveyed to Barnes, and the jury passed upon and settled that by finding the date of actual delivery to have been subsequent to that of the mortgage.
No other ground for the defendant’s motion for judgment upon the verdict was suggested but that it does not appear from the admissions in the pleadings ortho findings of the jury that the possession was demanded by the plaintiff and refused by the defendant. If the possession of Joseph Parker was adverse to plaintiff, no notice to quit was required. But if he wished .to take advantage of the fact set forth in his deposition that he entered upon the land in 1879 under a verbal agreement with Wiley Edwards, and to insist that as the parol contract between them was void, he stood in the shoes of Edwards, the mortgagor, and was entitled to notice, he ought, in his answer, to have admitted the right of the plaintiff and pleaded the want of lawful noticb. When a defendant, whether he might rightfully claim the relation to the plaintiff of lessee or tenant in common, “ waives his right and disregards his opportunity to admit *101by answer or disclaimer the true interest of the plaintiff,” lie cannot, after placing -himself in a hostile attitude by disputing the plaintiff’s title, fall back on a denial of the ouster, when every other defence has failed him. Foust v. Trice, 8 Jones, 490; Allen v. Salinger, 103 N. C., 14, and Ibid., 105 N. C., 333; Whissenhunt v. Jones, 78 N. C., 361; Gilchrist v. Middleton, 107 N. C., 663.
But while a defendant is not allowed to blow hot and cold by falling back upon his rights as a tenant, after he has failed to establish his claim of ownership, he cannot by his pleadings make his occupancy adverse ab initio so as to mature title against the plaintiff, when in fact he has held under the plaintiff or those through whom he claims.
The defendant in his answer simpty denies the allegations of the complain^. If he had any equitable right by virtue of his occupany under a parol agreement in 1879, which is not conceded, he has failed to set it up as a defence, and cannot now insist upon it.
The effect of discharging the mortgage debt to Parker with the surrender of the deed was unquestionably to make the second mortgage a first lien, and to vest the legal estate in the grantee therein named. The immediate execution of another deed could not operate to defeat the mortgage to Barnes. AVe did not understand (as his Honor below did not) that the defendant claimed under that mortgage, but it was introduced and appears as evidence in support of his contention for judgment. Upon a review of the exceptions we discover ' No Error.