(dissenting to that portion only of the majority opinion reversing the trial court.)
I do not believe plaintiff herein was entitled to a lien on the property of Benson and Montin for labor performed after plaintiff had notice that they owned the property in question.
The majority opinion cites holdings that “liens for material and work are superior to liens or incwmbrgnces subsequent to furnishing first items of material on date of performing first labor.” (Emphasis supplied.) I agree with this statement of law, and it is supported by the cases cited.
But in the case at hand, Benson and Montin were not asserting “liens or incum-brances”. They were asserting absolute ownership. All of the cases cited in the majority opinion can be distinguished on the facts: in the Sherbondy case, the land sought to be subjected to the lien was sold by the debtor during the time the materials were being furnished; in the Graham case the same state of facts obtained; and in the Oklahoma Tool case, the property sought to be subjected to the lien was mortgaged before the labor was furnished,, but the mortgage was not recorded till during the time the labor was being furnished.
I agree that plaintiff is entitled to a lien for labor performed before he had notice that the property belonged to Benson and Montin, but I am unable to find any statute or authority for the proposition that a lienee is entitled to a lien on property which the debtor does not own and 'has never owned, as to materials or labor furnished after being advised of such fact.
See Boston Cleaners & Dyers, Inc., v. Featherstone, 167 Okl. 519, 30 P.2d 874, 875, wherein the court said:
“One cannot create a contractual lien upon the property of another without the owner’s assent, nor hypothecate it for his own indebtedness.”
See also 53 C.J.S., Liens, § 5a, which reads in part:
“Lien laws have been said to rest on the cardinal principles that the owner of the property on which the lien is claimed has received some benefit or advantage by reason of services rendered or materials or supplies furnished and that the owner has contracted with some one, who thereby becomes his agent, to render such service or furnish such material or supplies.” (Emphasis supplied.)
In the case at hand, it can hardly be said that Benson and Montin received any benefit by reason of plaintiff’s services, or that there was any contractual relationship between them and plaintiff.
The position of the parties here is analogous to the situation which existed in Kissinger v. G. E. Burgher Oil & Gas Co., 174 Okl. 49, 49 P.2d 1049, wherein the court said:
“A drilling contractor may take his drilling equipment upon a leasehold for the purpose of drilling a well thereon under a contract with the owner of the lease without thereby subjecting such drilling equipment and materials to the lien claims of the lease owner’s creditors under section 7464, C.O.S.1921.”
See also Garber & Pulse, Inc., v. Gloyd, 168 Okl. 88, 31 P.2d 947, 949, wherein the court said in the body of the opinion:
“ * * * It is the intention of the law to create a lien upon the property of the contracting lease owner, in favor of those having claims against the contracting lease; owner.” (Emphasis supplied.)
I do not think Benson and Montin in the case at hand should have their property subjected to the lien merely because they did not accompany their property to the lease, when, under the rules above cited, a drilling contractor who does so accompany his property is not liable.
I respectfully dissent.