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