on rehearing.
Per Curiam (Brace, O. J., and Barclay, Gantt, Macearlane, Sherwood and Robinson, JJ.).A rehearing was granted in order that further consideration might be given to the chief substantial point urged on the motion for rehearing, namely, that the result reached on the first hearing was not sustainable, under the pleadings.
Plaintiff’s contention on that point is that the answer pleads payment of the debt secured by the Rogers deed of trust (under which plaintiff claims); that such pled amounts to a concession of the original indebtedness; and that, hence, the question (treated in the first opinion in banc) as to what indebtedness was actually secured by the Rogers- mortgage is foreign to the merits of the present appeal.
That contention was not lost sight of on the first hearing; but it may perhaps be well to add some observations upon it.
The plaintiff’s petition in the action is a short, statutory form in ejectment.
The answer of defendant Toms admits possession, and then proceeds to set up several equitable defenses. It is very elaborate, covering more than ten pages' of the printed abstract in this court.
In giving a history of the controversy the answer states that: “Plaintiffs base their claim of title to said lands solely and upon no other grounds than by and through a certain deed of trust, dated January 1,1883” * * * “to secure to A. W. Frederick, J. T. *240House, and J. F. Harwood, one of the plaintiffs, jointly, the payment of a certain promissory note in said deed, described to be for the sum of $2,500, and payable to said payees jointly; and by and through a pretended sale of said premises,” etc., “on the twenty-second day of August, A. D. 1889.”
It is then charged “that prior to said pretended sale, to wit, about' January 1, 1884, the said note, in said deed of trust described, had been fully paid and satisfied and said deed of trust ought in good conscience to have been satisfied of record.”
Further along, the answer says that “said deed of trust was no longer a lien upon said premises, and that notice thereof was given to plaintiffs at said pretended sale, * * * by reason whereof defendant says that said deed of trust and pretended sale ought in good conscience to be set aside, canceled, and for naught held.”
In other parts of the answer it is said that the proceeds of the loan effected by the Wilson mortgages were used by Frederick (in accordance with his promise to that effect)' to satisfy all existing liens or claims against the property, and that the lenders were “led to believe, and did believe, that out of said money said Frederick paid and satisfied all liens then outstanding upon said premises, including such sum, if any, as was due upon the note and trust deed under which plaintiffs herein claim.”
Plaintiff filed a reply to the answer; and, at the trial, both parties assumed, by their course of conduct, that a finding upon the plea of payment of the Rogers mortgage involved an inquiry into the amount that was actually due upon that mortgage at the time the sale thereunder was made.
It.is familiar law in Missouri that parties are generally to be held bound on appeal by the positions *241they have taken in the trial court on controverted points.
Where, for example, there is any fair doubt as to the construction of a pleading, that construction which both parties have given to it at the trial will be taken to be a proper one, unless some rule of law forbids the acceptance of that construction.
The answer charges distinctly that the lien of the Rogers mortgage had been discharged when the sale thereunder occurred. Plaintiff disputed that allegation.
To determine that issue, defendant proceeded, without objection, to show what, if anything, of that indebtedness was due at the time of that sale. The inquiry extended back to the inception of that mortgage. Plaintiff not only made no objection to that inquiry, but, on the contrary, recognized its correctness by giving his own evidence on that identical point. The first question he was asked on the trial in this cause (after stating that he was the plaintiff) was this: “I want you to tell the jury in your own way the origin and the whole history of this debt secured by this deed of trust?” In reply, the plaintiff gave at length his version of the origin of the Rogers mortgage, besides many statements touching matters which led up to that document.
He, as well as the other side, recognized that the issue of indebtedness, at the .time of the sale under that mortgage, embraced the subordinate question as to the-amount of the original obligation. Plaintiff tried the-case on that theory, and we think he was not very wide of the mark in so interpreting the pleadings.
At all events he is in no position to complain now of the admission of the evidence on that question in the trial court or of its discussion in this- court.'
*2422. At the second hearing, plaintiff has started the objection that the bill of exceptions is not properly here for review, because filed out of time.
The motion for new trial was disposed of, and the appeal taken, at the April term, 1892, of the De Kalb circuit court. At that term an order was entered of record giving defendant “leave to file bill of exceptions during the next regular term of this court.”
A record entry in the cause, November 23, 1892, declares that, at that time, defendant presented a bill of exceptions which was signed, sealed, and made part of the record.
The closing lines of the bill, after reciting the leave to file it at the November term, 1892, proceed thus: “And now the defendants, within the time allowed by the court, bring this their bill of exceptions,” etc., ending in the usual way, with the date, November 23, 1892, and the authentication by the judge.
The objection advanced is that the record does not clearly show that the bill was filed at the November term, 1892; “for aught that appears, the twenty-third day'of November may have been the continuation of an October term of the court,” as plaintiff’s brief asserts.
If there is any force in the remark just quoted, it goes to prove that the bill was filed in advance of the time it was'due. If on the twenty-third of November the October term was still in progress, the November term must not yet have begun; the bill was, hence, in time.
But the November term of that court in 1892 was, by public law (of which we take judicial notice), .appointed to begin on the second Monday of that month (R. S. 1889, sec. 3390); and the formal entry on the ■court record of the twenty-third of that month indicates *243that the bill was allowed at that term. There is nothing in this objection to the bill of exceptions.
3. On the merits of the appeal we confirm the views expressed at the former hearing, and direct judgment to be entered as then ordered.
All the members of the court concur, except Judge Burgess.