(after stating the facts). The only exception presented for our consideration by the record, is to the judgment, because it did not declare the lien was invalid as against the defendant’s homestead. The exception cannot be sustained, for several reasons. First, because.there was no such allegation in the answer of the defendant as that stated in the “ease on appeal,” to-wit: “that the defendant in his auswe'r, alleged that the lien was invalid as against his homestead.”
The only reference in the answer of the defendant to the lien, is contained in the second paragraph of the answer, which, upon a fair and reasonable construction, has reference only to the validity of the lien, and has no reference whatever to his homestead. Even if it did, there was no issue submitted to the jury upon that point, and that there was not, is no ground of complaint by the defendant. It was his duty to eliminate and tender such issues as he considered essential to present the merits of the action, and when he failed to do so, he cannot complain in this Court that such issues were not found by the Court below, and submitted to the jury. Simmons v. Simmons, 92 N. C., 12; Curtis v. Cook, 84 N. C., 41.
*63And secondly, for the reason that the Court did offer to submit issues to the jury, touching the character of the lien with reference to its bearing upon his right of homestead, and he objected. The Judge would have had to travel out of the record, and transcend his duty, if upon the pleadings in this case he had rendered such a judgment as that insisted upon by the defendant, and in fact, we do not see how the question of a homestead is raised by the pleadings in the case. If the action was brought to enforce the lien, the plaintiff has more cause to complain of the judgment than the defendant; for the Court rendered the judgment simply for the debt alleged to be due the plaintiff without declaring that the laud described in the lien should be sold for the payment of the debt. But the plaintiff did not appeal, and we must therefore assume that he was satisfied with the judgment, as rendered.
Our conclusion is, there was no error, and the judgment of the Superior Court is affirmed.
No error. Affirmed.