#### WISE SUPPLY COMPANY v. JOHN R. DAVIS and WARREN DEVELOPMENT COMPANY, Intervener.

(Filed 5 October, 1927.)

Landlord and Tenant — Contracts — Options — Advancements — Liens— Statutes.

A contract expressed and purporting to be a lease of lands for agricultural purposes, does not change the relationship of landlord and tenant between the parties upon the ground that if the amount of stipulated rent should be paid at a certain time it should be regarded as a credit upon the purchase of the land at a stated price, it not appearing that the transaction of the contemplated purchase had been made under option given; and the landlord or one to whom the contract has been validly assigned may enforce statutory lien, C. S., 2355, in priority to the lien of one furnishing advancements for the cultivation of the crop. C. S., 2480.

Appeal by plaintiff from Grady, J., at January Term, 1927, of WaeREN.

Affirmed.

. Action to. recover possession of certain crops made by defendant, John R. Davis, during the year 1926, upon lands situate in Warren County.

Plaintiff contends that it is entitled to said crops by virtue of a lien for advancements made by it to defendant, pursuant to an agreement in writing, duly registered, as required by statute. C. S., 2480.

*329Intervener contends tbat it is entitled to said crops by virtue of a landlord’s lien arising out of a rental contract between tbe owner of tbe land and defendant, Jobn E. Davis. C. S., 2355. It is tbe bolder by assignment of a note executed by Davis and payable to tbe owner of tbe land for rent.

No answer was filed by defendant, Jobn E. Davis. Tbe controversy presented for decision arises solely out of tbe conflicting claims of plaintiff and intervener.

By agreement, trial by jury was waived. From judgment upon tbe facts as found by tbe judge, plaintiff appealed to tbe Supreme Court.

J. H. Bridgers and Williams & Banzet for plaintiff.

F. S. Gibbs and Polk & Polk for intervener.

CoNNOR, J.

Tbe controversy between tbe plaintiff and tbe intervener involves, primarily, tbe construction of tbe contract between L. J. King, tbe owner of tbe land upon wbicb tbe crops were grown, and tbe defendant, Jobn E. Davis. If tbeir relationship witb respect to tbe said land, as established by tbe contract, was tbat of vendor and vendee, then tbe intervener, claiming under tbe owner of tbe land, has no ben upon tbe crops, and is not entitled to tbeir possession. On tbe other band, if Davis cultivated tbe land, under tbe contract, as a tenant of L. J. King, owner of tbe land, tbe intervener, as assignee of tbe rent note executed by tbe tenant and payable to the landlord, has a lien upon tbe crops, superior to tbat of plaintiff for advancements. 0. S., 2355.

On 10 February, 1926, Jobn E. Davis executed bis note for $500, payable on or before 15 November, 1926, to the order of L. J. King. This note contains a recital as follows: “This is for rent for tbe year 1926 of a part of tbe old Hawks Place of about thirty (30) acres (it being for tbat part of said place on wbicb bis former residence is located), situated in "Warren County, Hawtree Township.” Tbe note was transferred and assigned by L. J. King to tbe intervener. On 23 November, 1926, Jobn E. Davis paid to tbe intervener, to be credited on said note, tbe sum of $263.80. No other payment has been made on tbe note. Tbe crops in controversy were grown during tbe year 1926 by John E. Davis upon tbe land described in tbe note.

Contemporaneously witb tbe execution of tbe said note, L. J. King entered into an agreement witb Jobn E. Davis, wbicb was in writing and is as follows:

> ‘Warrenton, N. C., 10 February, 1926.

> “Having this day rented Jobn E. Davis about thirty acres of my land, known as tbe old Hawks Place, situated in Warren County, Hawtree. Township, N. C. (it being for tbat part of said place on wbicb tbe resi*330dence is located), I hereby agree to sell him said place at the price of eighty dollars ($80) per acre, on or before 15 November, 1926, provided he pays me the full sum of $500 for rent of said place- for the year 1926.

> “Time is the essence of this agreement. Should the $500 be paid.as outlined above, I will sell him said place at $80 per acre, deducting the $500 from this price, he giving me deed of trust and notes for the full amount of the balance of the purchase price of said land. All notes to bear 6 per cent interest, and payable annually, one note for one-fourth, pay 15 November, 1927, 1928, 1929 and 1930.

> “L. J. King.

> “Witness: B. L. Newell.”

Plaintiff’s contention that by virtue of this contract the relation of vendor and vendee was established between L. J. King and John R. Davis cannot be sustained. By the terms of the contract, John R. Davis had an option to purchase the land, provided he paid to L. J. King, his lessor, on or before 15 November, 1926, the sum of $500. It does not appear that he paid the said sum, or undertook to exercise his option, certainly at any time prior to the date of the lien given by him to plaintiff for advancements, or at any time prior to the making of said advancements by plaintiff. At the time the advancements were made, no change in the relationship established by the contract, had been made.

In Burwell v. Warehouse Company, 172 N. C., 79, construing a contract similar in all essential features to that involved in this action, this Court held that the relationship between the parties thereto was that of landlord and tenant, and not that of vendor and vendee. It is there said: “The agreement in this case does not create the relation of vendor and vendee, as contract of sale does not appear upon the face of the paper to have been perfected. The effect of the instrument appears upon its face to give to Arrington an option on the place and a definite time within which to exercise his right. It is expressly provided that time shall be of the essence of the contract. Under such conditions, we see no reason why it was not competent for the parties to occupy the relation of landlord and tenant towards each other pending such period.”

It was there held that the owner of the land, by virtue of his statutory lien as landlord, was entitled to recover possession of the crops.

Burwell v. Warehouse Company is cited with approval in Jerome v. Setzer, 175 N. C., 391, and is authoritative upon the question presented by this appeal.

*331Tbe only interest wbicb Jobn E. Davis bad in tbe land upon wbicb tbe crops involved in tbis action were grown, at tbe time plaintiff agreed to make advancements to bim, or at tbe time tbe advancements were made, was as tenant or lessee of tbe owner of tbe land. Plaintiff’s lien for advancements is subject to tbe lien of tbe landlord for rent by tbe express provisions of tbe statute. C. S., 2480. There was no error in tbe judgment tbat tbe intervener, as assignee of tbe landlord, recover possession of tbe crops for tbe purpose of enforcing its lien.

Tbe rent to be paid by tbe tenant to tbe landlord was fixed by contract between tbe parties prior to tbe making of advancements to tbe tenant by plaintiff. It is immaterial wbetber sucb rent was reasonable or not. Plaintiff made tbe advancements after tbe rental contract bad been made. Its lien for advancements is subject to all tbe terms of tbe rental contract, wbicb it could bave ascertained before making tbe advancements. Tbe contract between tbe landlord and bis tenant, as to tbe amount to be paid as rent cannot be altered, certainly in tbe absence of allegations and proof of fraud, in accordance with tbe contentions of plaintiff.

It should be noted tbat no controversy between tbe parties to tbe rental contract is involved in tbis action. Both tbe plaintiff and tbe intervener rely upon statutory liens in support of their claims to tbe crops made by defendant Davis upon land wbicb be rented from L. J. King. We find no error. Tbe judgment is

Affirmed.