For reversal of this case intervener relies upon the single proposition that the trial court erred in rendering judgment in favor of the plaintiff and in refusing to render judgment in favor of the intervener.
In support of this contention it is urged by intervener in its brief that when plaintiff and defendant entered into the new rental contract in May, 1923, it amounted to an abandonment by plaintiff of her rights under the original rental contract entered into in November, 1922, and that the mortgage of intervener, being of record when the new contract was entered into in May, 1923, was notice to plaintiff of intervener's rights in the crop of defendant then growing upon the premises, and that her lien as landlord is postponed in favor of the prior lien of intervener under its mortgage. Intervener's argument upon this theory is very plausible, but not convincing, and no authorities are cited supporting the conclusion which intervener seeks to impress upon this court as being *Page 54 the correct conclusion from the facts shown by the record.
In the view taken of the case here the contract between plaintiff and defendant of May 12, 1923, was nothing more nor less than a chattel mortgage. If plaintiff were to rely upon uthis chattel mortgage, there is no question but that the contention of intervener would be correct as to the priority of its lien. But the nature of the action instituted by plaintiff shows conclusively that she is not relying upon her chattel mortgage, but upon the relation of landlord and tenant existing between herself and John Wilkey, and upon the statutory lien given in favor of the landlord where such relation is shown to exist. No question is raised as to the ownership of the premises by the plaintiff nor as to the occupancy of those premises and their cultivation by John Wilkey during the year 1923. Under such circumstances it was not essential to the existence of the relation of landlord and tenant that a written contract be entered into between the parties. In the case of Dorsett et al. v. Watkins, 59 Okla. 198, 158 P. 608, this court had under consideration a case very similar in its general outline to the one here presented, and in determining the rights of the landlord under our statute this court said:
"The lien did not arise by virtue of the contract between the landlord and the tenant, but by virtue of the statute and the relationship, and no written contract of lease was necessary to the existence of or to the enforcement of the landlord's lien. Therefore the fact that the contract was not recorded does not affect the lien." Turner v. Wilcox, 32 Okla. 56, 121 P. 658; Earl v. Tyler et al. 36 Okla. 179, 128 P. 269.
In the case last above cited, Earl v. Tyler et al., this court held in the first paragraph of the syllabus as follows:
"In an action brought by the owner of real estate, entitled to the possession thereof, against the occupant, to recover for the use and occupation of the lands occupied, it is not necessary to allege in the bill of particulars either that the relation of landlord and tenant existed between the parties, or that there was an express or implied agreement to pay rent."
So in this case, it being conceded that the premises in question were owned by the plaintiff and that they were occupied and cultivated during the year 1923 by the defendant with her knowledge and consent, such a situation created the relation of landlord and tenant between the parties and entitles plaintiff to the benefit of the statutory lien provided for by Comp. Stat. 1921, section 7363, as follows:
"Any rent due for farming land shall be a lien on the crop growing or made on the premises. Such lien may be enforced by action and attachment therein, as hereinafter provided."
It has been frequently held by this court, and is now settled law in this state, that the landlord's lien on crops is superior to a mortgage of such crops made by the tenant to a third party. Tootle-Wheeler Mercantile Co. v. Floyd,28 Okla. 308, 114 P. 259; Turner v. Wilcox, 32 Okla. 56, 121 P. 658; Crump et al. v. Sadler et al., 41 Okla. 26, 136 P. 1102.
It is conceded in this case that the note for $550 executed by the defendant to the plaintiff was intended by the parties to evidence the rental indebtedness. It is therefore immaterial whether said note was executed before or after the mortgage of the intervener, because the lien of plaintiff arose, not by reason of the execution of the note nor by reason of the execution of either of the two rental contracts, but by reason of the relation of landlord and tenant between the parties, and that relation was created when defendant entered upon plaintiff's premises with her knowledge and consent for the purpose of occupying and cultivating the same.
In the judgment of the trial court it was provided that all of the funds impounded and in the hands of the sheriff after the sale of the attached property, which were not required to pay off and discharge the judgment in favor of the plaintiff, should be turned over by him to the intervener to be applied upon defendant's indebtedness to it. This was all that intervener was entitled to under the statute and holdings of this court as applied to the facts presented by this record. It must be concluded, therefore, that the contention of intervener that its mortgage lien was superior to the landlord's lien of plaintiff upon the crops grown by defendant for the year 1923 is untenable.
The judgment of the trial court is in all things affirmed.
By the Court: It is so ordered. *Page 55