PARTITION-OWNER OF LIFE ESTATE, WHETHER MAY SUE FOR. - A tenant for life cannot ask for partition, where he is in lawful possession and has the pernancy of the rents and profits of the entire estate: Johnson v. Johnson, 7 Allen, 196; 83 Am. Dec. 676; Seiders v. Giles, 141 Pa. St. 93. But see note to Nichols v. Nichols, 67 Am. Dec. 709, for a discussion of this subject, and in which it is contended that a tenant for life may compel par tition.

NORWOOD V. NORWOOD.

[86 SOUTH CAROLINA, 381.]

EQUITABLE DEFENSE NOT LOST BY FAILURE TO SET IT UP IN ANSWER WHEN. A defendant does not lose his right to set up the defense of

purchaser for a valuable consideration without notice, as against his codefendant, by failing to plead it specially in his answer.

PLEADING BY PARTY SUSTAINING DUAL CHARACTER PROPER MODE OF. — Where a party to an action appears in two characters, —for example, as an individual and as a partner, he ought to appear only as a plaintiff

or as a defendant, setting forth his several rights in the subject-matter of the action. It is defective pleading for one and the same person to appear as both plaintiff and defendant in the same action.

LIEN OF SECRET OR UNRECORDED MORTGAGE DISPLACED BY THAT OF SUBSEQUENT RECORDED MORTGAGE. The lien of a secret or unrecorded

mortgage is displaced by that of a mortgage subsequently delivered and duly recorded, even though such recorded mortgage is given to secure an antecedent indebtedness. Where, therefore, after a recorded mortgage to secure future advances for the current year has been satisfied in fact, an agreement, not recorded, is made to continue such mortgage for advances of the next year, and after some advances are made thereunder the mortgagor makes another mortgage to a third person, who has no knowledge of the prior mortgage, to secure an antecedent debt, which latter mortgage is duly recorded, this recorded mortgage will have pri ority over the secret lien of the unrecorded agreement. In such case, the record of the later mortgage was notice to the prior mortgagee from its date, and the advances made by him after that date were at his peril. And the mortgagor, by executing the second mortgage, deprived him self, by his own act, of the right to demand further advances under the agreement.

ACTION to foreclose a mortgage. The facts are stated in the opinion.

H. H. Newton, for the appellant.

R. T. Caston, contra.

POPE, J. The issues in the action originally begun on the 17th of January, 1890, in the court of common pleas for Marlboro County have been reduced to a contention between the two defendants, George A. Norwood & Co. on the one side, and E. H. Frost & Co. on the other side, as to the priority of

mortgages held by them respectively. Judge Hudson, who heard the cause on the circuit, decided that E. H. Frost & Co. had prior lien, and decreed accordingly. From that decree the defendants George A. Norwood & Co. appeal to this court on fourteen grounds of appeal, as follows:

1. Because his honor the presiding judge erred in holding that the mortgage of defendants E. H. Frost & Co. is entitled, out of the proceeds of sale of the mortgaged premises, to priority in payment to the mortgage of G. A. Norwood & Co.

2. Because his honor erred in holding that the mortgage of G. A. Norwood & Co. was in fact paid on the thirteenth day of January, 1885, the date of the first renewal of the same by C. N. Rogers and N. S. Rogers.

3. Because his honor erred in holding that the renewal of the bond and mortgage by C. N. Rogers and N. S. Rogers to G. A. Norwood & Co. was a secret agreement, and could not affect the rights of the defendants E. H. Frost & Co., who were junior mortgagees.

4. Because his honor erred in not holding that the mortgage of the defendants G. A. Norwood & Co., being prior in date and unpaid, should be preferred, in its payment, to the bond and mortgage of E. H. Frost & Co.

5. Because his honor erred in not holding that the renewal of the bond and mortgage to G. A. Norwood & Co. was valid and binding upon the junior mortgagees, E. H. Frost & Co., as the said renewed mortgage was of record and uncanceled.

6. Because his honor erred in not holding that it was incumbent on said junior mortgagees, E. H. Frost & Co., to give actual notice to the senior mortgagees, G. A. Norwood & Co., of the existence of said junior mortgage after its execution, in order to give the latter priority over the former.

7. Because his honor erred in not holding that the senior mortgage of G. A. Norwood & Co. was not such a mortgage as could be affected by actual notice of a subsequent mortgage, as G. A. Norwood & Co. were compelled to make the advances specified in the said renewed bond.

8. Because his honor erred in not holding that the renewal of said bond and mortgage of G. A. Norwood & Co. was a revivor of the same, and was valid as against the subsequent mortgage of defendants E. H. Frost & Co.

9. Because his honor erred in not holding that the account of G. A. Norwood & Co. against C. N. Rogers was a running account, and had not been closed, and that the bond and mort

gage given to secure the same was to secure an eventual balance which had not been paid at the date of the mortgage to E. H. Frost & Co., nor at any time afterwards.

10. That his honor should have held that the question involved was one of the application of payments by G. A. Norwood & Co. to their account against C. N. Rogers; that there had been no direction of such application by C. N. Rogers, and that the same had been applied to the open account, which was in excess of the security given, thus leaving the balance on account secured by the bond given by C. N. Rogers, and the mortgage given to secure the same.

11. Because his honor erred in not holding that G. A. Norwood & Co. were, at least, entitled to priority under their mortgage over E. H. Frost & Co., to the extent of all amounts due them on account of C. N. Rogers on the twenty-third day of February, 1885, the day the mortgage of E. H. Frost & Co. was executed.

12. That his honor erred in not decreeing the sum of $669.96, with interest from the date of the advancement of the items composing that amount, on the account of C. N. Rogers, due to G. A. Norwood & Co., at ten per cent per annum, till the date of the decree herein.

13. Because his honor erred in holding that a recital by C. N. and N. S. Rogers in the mortgage to E. H. Frost & Co., to the effect that there was no other encumbrance on the mortgaged premises than the Munnerlyn mortgage, could affect the rights of G. A. Norwood & Co., the senior mortgagees, who knew nothing of such recital.

14. Because his honor erred in holding that there was a settlement between C. N. Rogers and G. A. Norwood & Co., on the 13th of January, 1885, on which day there was a balance due said C. N. Rogers of three hundred or four hundred dollars.

The facts in this case are undisputed, and are about as follows: C. N. Rogers, in February, 1884, agreed with G. A. Norwood & Co. to borrow $1,000, to be paid on or before January 1, 1885, and that he would ship said firm seventy-five bales of cotton, to be sold by them as factors during the year 1884; and in order to secure such factors, he, with his father, N. S. Rogers, executed their bond to them in the penalty of $2,000, conditioned for the payment of $1,000 and interest, etc.; and that on the 1st of January, 1885, G. A. Norwood & Co. held claims against C. N. Rogers for $2,360.34, and held

to C. N. Rogers's credit $2,442.58 in money, and six bales of cotton, worth $277.69. On the 13th of January, 1885, Norwood & Co. owed C. N. Rogers $2,720.27, and he owed them $2,376.59, a difference in Rogers's favor of $359.93. These two results, to wit, the state of their accounts on the 1st of January, 1885, and also on the 13th of January, 1885, included the bond secured by mortgage. On the 13th of January, 1885, C. N. Rogers made an agreement with G. A. Norwood & Co., which was entered on the bond executed the 23d of February, 1884, by which it was agreed between them that the arrangement for 1884 should be continued for the year 1885. This agreement was not entered on the record of the mortgage, or made known. In other words, while entirely fair and business-like between the parties to the same, it was not made public.

On March 1, 1884, Elizabeth Munnerlyn obtained a mortgage upon the lands in controversy here for two thousand dollars and interest. This is admitted on all hands as the first and preferred lien. On the 23rd of February, 1885, Charles N. Rogers executed a mortgage on these lands to secure an antecedent indebtedness of three thousand dollars to E. H. Frost & Co., representing in the body thereof that there was no lien thereon except that by mortgage to Elizabeth Munnerlyn. It is admitted that E. H. Frost & Co. had no actual notice of the mortgage of George A. Norwood & Co., or of any continuance thereof.

At the hearing, Charles N. Rogers, who was the witness of George A. Norwood & Co., testified that all indebtedness between him and said firm of George A. Norwood & Co. was paid on the 13th of January, 1885, and no testimony or admissions of parties appears to negative such testimony.

Judge Hudson decreed that the lands should be sold, and the proceeds applied, -1. To the payment of the mortgage of Elizabeth Munnerlyn; 2. To the payment of the mortgage of E. H. Frost & Co.; 3. To the payment of the mortgage of George A. Norwood & Co.

From the view we take of this case, it will only be necessary for us to consider the first exception; it includes all the rest.

Before proceeding regularly to respond to the inquiry made of us by the appellants, it is proper that we should notice so much of the appellants' argument as suggests that inasmuch as the defendants E. H. Frost & Co. did not in their answer

set up their defense of purchasers for valuable consideration without notice, they are not entitled to such equitable defense. It may be well to state just here that this exception is not urged by the plaintiff as such, but by the defendants George A. Norwood & Co. The cause of action set up by the plaintiff was the Munnerlyn mortgage. The defendants, E. H. Frost & Co. and George A. Norwood & Co., were only proper parties to his action for the foreclosure of his mortgage, because they held junior encumbrances on the same property. When the defendants Frost & Co. answered the complaint, denying its allegations touching the relative rank of Frost & Co.'s mortgage, and that of Norwood & Co., that was all that was necessary, so far as the plaintiff was concerned. We must not be understood as denying the right of co-defendants to have these equities as between themselves tried in this action. That right has been repeatedly recognized by this court: Quattlebaum v. Black, 24 S. C. 55; Motte v. Schult, 1 Hill Eq. 146; 26 Am. Dec. 194.

The plaintiff in the case at bar sued as assignee and mortgagee, and did not include his membership of the firm of Norwood & Co. in his character as plaintiff; his name in that latter relation appears here as a defendant. It is defective pleading for one and the same person to appear as both plaintiff and defendant in the same action. Correct pleading requires that a plaintiff or defendant, as the case may be, should unite in himself as such plaintiff or defendant, as the case may be, all the characters he may bear to the subject-matter. Thus if an individual has rights as an individual, and also rights as a trustee (in one of its many forms), or as partner in a firm in one subject-matter, he should be so described. We make these observations here because this is the second instance during the present term of this court in which we have noticed this departure from the rules for pleading, and all the more readily in this case because of the admirable manner in which, in every other respect, the papers have been prepared.

After a careful consideration of the appeal, the writer of this opinion has reached the conclusion that the decree below must be modified, for he was satisfied that Norwood & Co. were entitled to a priority, in so far as the amount advanced to C. N. Rogers, beginning on the thirteenth day of January and ending on the 23d of February, 1885, being the sum of $686.21, is concerned. This result arises from