ON MOTION FOR REHEARING.
PARKER, J.Motion for rehearing has been filed, as authorized by rule 18 of this court, based upon section 5424, Code 1915, which provides a general rule of construction of statutes, and which section, it is claimed, has been violated, in the opinion of the court.
We are entirely satisfied with the conclusion reached in the former opinion. We desire, however, to restate the position of the court. In the opinion we stated that the section of the statute (section 3335, Code 1915) means that the taking 'of collateral security for rent at the beginning of the tenancy precludes the landlord from claiming his statutory lien. The taking of collateral security after the lien has attached does not work a forfeiture of the lien, unless the party so intends. We desire to restate the position of the court as follows: The taking of collateral security, either before or after the rent becomes due, does not, under the terms of the statute, work a'forfeiture of the right to a lien, unless “the parties so intend. If the security should be taken at the beginning of the term, it would, under all ordinary circumstances, operate as a waiver of the lien, because at that time, under a lease from month to month, as in this ease, there could be but one month’s rent due, and the taking of security would, ordinarily, necessarily show an intent to rely upon the security, rather than the lien. But after the rent has accrued, as in this case, the taking of security may or may not show an intent to rely on the security, rather than the lien. In this case, as before seen, the intent to waive the lien was expressly disavowed. At the time of the taking of the mortgage there was due $240 for rent, and the tenant arranged for four months longer at $15 per month, which would make the total amount due at the end of the tenancy $300. The value of the tenant’s property is alleged in the replevin affidavit to be $250. The amount for which the mortgage was given was $298.25.
Under such circumstances we do not think the landlord can be said to have taken “collateral security for the payment of the sum due him.” The security was collateral security, but it was uot taken as full security, for the debt. The landlord expressly disavowed this. It yyas taken as supplemental to the security of the lien. All' that the statute means is that the landlord shall have either his lien or such security as he may accept as suf&cientfor the sum due. He may not have both.
The argument of counsel for appellee would lead to unreasonable consequences. For example, if the landlord has a claim for rent for $100, and the tenant has chattels in the house worth $50, and has other property with $50, he may not give security on the other property and the landlord may not take such security, or the landlord’s lien will be forfeited. This would convert the statute into a forfeiture statute, which, as we stated in the original opinion, is not allowed.
The motion for rehearing is denied, and the former conclusion is adhered to; and it is so ordered.
Hanna,'J., concurs. - Roberts, C. J., did, not participate in this or the original opinion.