Simrall, J.,
delivered the opinion of the court.
The question of law arises upon an agreed case. The substantive facts are these: During the year 1872, Warren resided upon and cultivated land owned by Ratliff, “ who had said Warren was employed to raise a crop for Ratliff, receiving one-third of the corn and one-fourth of the cotton raised thereon by Warren.” During the year Ratliff furnished Warren with plantation supplies to the amount of $175, who verbally agreed that Ratliff should have a lien on the crop.
Warren, on the 6th day of January, 1872, executed a deed of trust to Betts, covering the crop of cotton to be raised that year, to secure a promissory note of $125, payable to Cummings the first ofNovember thereafter.
Ratliff took possession of the cotton and applied it to his debt. This suit was brought by Betts, trustee for the use of Cummings, against Ratliff, for the conversion of the cotton.
The parties made no point on the testimony, but intended to raise the question whether Betts had a better right to the cotton, under the trust deed, than Ratliff, for his supplies, and the lien therefor claimed by him under the act of the 6th of April, 1872.
It will be noted that the deed in trust is about three months anterior to the passage of the law under which Ratliff asserts his lien. If by law it was competent to incumber by deed in trust [567]*567a crop before it was planted, so that it would be operative upon a crop to be thereafter planted, grown and matured, such security, to be available, must take priority as to subsequent purchasers and creditors, from the day of its execution and notice thereof.
Whether such security could be created at the common law or not, it is entirely within the power of the legislature to authorize it.
The first clause of the 7th section of the act of 1867, for the encouragement of agriculture is to the effect “that it shall be lawful to convey, by way of mortgage or deed of trust, any crop of cotton, corn or agricultural product, being produced or to be produced within fifteen months from the date of such mortgage.” We cannot doubt that the intention of the legislature is, that the mortgage or deed of trust shall have preference and priority, from its date, whether the crop be' then planted or not. The prospective crop, before the seed is sown, is such potential interest or expectancy in property that it may be thus conveyed. And when the crop grows, the subject has come into esse, and the mortgage or trust deed at once takes effect upon it. The meaning of the statute is, that the security attaches to the commodity in advance of the harvest, and the right to apply it to the uses of the mortgage or deed of trust, is as of the day of the date; so that the mortgagee or cestui que trust would have priority over any other creditor, incumbrancer or purchaser, subsequent to the date of such security.
Such was the legislative understanding, for the 13th section of the act of 1872, April 5th, p. 135, declares “ as the sense of the legislature, that all contracts heretofore entered into under the provisions of an act lor the encouragment of agriculture, approved 18th February, 1867, are valid.”
Manifestly, it would be ultra vires of the legislature to displace, defeat or impair a contract expressed in a mortgage or deed of trust, good under the act 1867, by subsequent legislation.
The act of the 5th of April, 1872, is not repugnant to, nor does it repeal the statute of 1867. The main design was, to introduce [568]*568liens to secure the wages of the laborer or employee (see 1st section), and in favor of the employer, for supplies furnished to the laborer (see 10th section); neither of which cases were embraced in the prior statute.
The person entitled to a lien under the first section is the laborer or employee for wages, and not the tenant or lessee.
There is some obscurity in the language of the 10th section, or rather there is difficulty in giving an application of the words used, so as to make the lien beneficial against all laborers employed in the production of a crop. The lien takes effect on all “agricultural products.” If the laborer is to receive moneyed Wages, in such case, there is no “product” belonging to him upon which the lien can take effect for the supplies. But if the laborer is to secure part of the crop for his “ wages,” then the lien would take effect upon that. The “ wages ” may as well be for a part of the product as for money.
Washburn (1 vol. Real Prop., p. 500), after examining the cases, states that it is difficult, if not impossible to fix any rule by which to determine whether carrying on a farm by one not the owner upon shares, constitutes him a tenant with separate right of property in the crop, or a tenant in common of the crops, or a mere hired laborer or cropper. It is easy to assign many,, perhaps the great majority of cases, to their appropriate class. A tenant or lessee has ah interest in the soil. Generally the products of the land are his separate property, subject to a right in the landlord to the privileges conferred bylaw for getting his rent, whether in kind or in money. A demise of a farm, or so-many acres, or a certain part thereof, for so much corn or cotton per acre, or for the entire premises, is a letting, and- creates a tenancy. So of a grist mill, “ for one-third of the toll which the mill grinds.” Fry v. Jones, 2 Rawle Rep., 11. If a laborer engages to work on the farm for so many bushels of corn, or pounds of cotton for the year or other definite time, this would be rendering service for wages, and would not be a tenancy.
[569]*569Parties made this agreement: F. put out from 25 to 30 acres of the farm in wheat, F. to have two-thirds of the crop and B. one-third, held not to make F. a tenant of R. Adams v. McKesson, Executrix, 53 Penn. St. Rep., 84. A tenancy exists, however, if the cultivator agrees to pay a certain number of bushels of wheat as rent of the premises. Tanner v. Hill, 44 Barb., 430; 15 Barb., 597.
The law is well settled that there may be a letting of land from year to year, or for one year, where the relation of landlord and tenant exists, though the rent be paid in a part of the product. It is equally well settled that one party may cultivate the land of another for the purpose of making a crop, of which the owner of the land is to have a part and the cultivator a part, where the parties would be tenants in common of the crop, and would not sustain the relation of landlord and tenant.
Whether the contract be of the one kind or the other, depends on the intention of the parties, to be gathered from all the attending circumstances. Alwood v. Ruckman, 21 Ill., 201.
The agreed facts are very meagre in defining the terms of the contract between Batliff and Warren. We are inclined to the opinion, and so hold, that Warren did not become the tenant of Batliff, but was a laborer or cultivator for a share of the crop, and that he and Batliff were tenants in common of the products.
Does the 10th section of the act of 1872 give a lien to the land owner who advances supplies to laborers who cultivate for a share of the crop? The laborer must have an interest in the “agricultural products,” for that is the subject upon which the lien attaches, otherwise there is no lien. If he work for wages in money, plainly there is no lien.
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Simrall, J.,
delivered the opinion of the court.
The question of law arises upon an agreed case. The substantive facts are these: During the year 1872, Warren resided upon and cultivated land owned by Ratliff, “ who had said Warren was employed to raise a crop for Ratliff, receiving one-third of the corn and one-fourth of the cotton raised thereon by Warren.” During the year Ratliff furnished Warren with plantation supplies to the amount of $175, who verbally agreed that Ratliff should have a lien on the crop.
Warren, on the 6th day of January, 1872, executed a deed of trust to Betts, covering the crop of cotton to be raised that year, to secure a promissory note of $125, payable to Cummings the first ofNovember thereafter.
Ratliff took possession of the cotton and applied it to his debt. This suit was brought by Betts, trustee for the use of Cummings, against Ratliff, for the conversion of the cotton.
The parties made no point on the testimony, but intended to raise the question whether Betts had a better right to the cotton, under the trust deed, than Ratliff, for his supplies, and the lien therefor claimed by him under the act of the 6th of April, 1872.
It will be noted that the deed in trust is about three months anterior to the passage of the law under which Ratliff asserts his lien. If by law it was competent to incumber by deed in trust [567]*567a crop before it was planted, so that it would be operative upon a crop to be thereafter planted, grown and matured, such security, to be available, must take priority as to subsequent purchasers and creditors, from the day of its execution and notice thereof.
Whether such security could be created at the common law or not, it is entirely within the power of the legislature to authorize it.
The first clause of the 7th section of the act of 1867, for the encouragement of agriculture is to the effect “that it shall be lawful to convey, by way of mortgage or deed of trust, any crop of cotton, corn or agricultural product, being produced or to be produced within fifteen months from the date of such mortgage.” We cannot doubt that the intention of the legislature is, that the mortgage or deed of trust shall have preference and priority, from its date, whether the crop be' then planted or not. The prospective crop, before the seed is sown, is such potential interest or expectancy in property that it may be thus conveyed. And when the crop grows, the subject has come into esse, and the mortgage or trust deed at once takes effect upon it. The meaning of the statute is, that the security attaches to the commodity in advance of the harvest, and the right to apply it to the uses of the mortgage or deed of trust, is as of the day of the date; so that the mortgagee or cestui que trust would have priority over any other creditor, incumbrancer or purchaser, subsequent to the date of such security.
Such was the legislative understanding, for the 13th section of the act of 1872, April 5th, p. 135, declares “ as the sense of the legislature, that all contracts heretofore entered into under the provisions of an act lor the encouragment of agriculture, approved 18th February, 1867, are valid.”
Manifestly, it would be ultra vires of the legislature to displace, defeat or impair a contract expressed in a mortgage or deed of trust, good under the act 1867, by subsequent legislation.
The act of the 5th of April, 1872, is not repugnant to, nor does it repeal the statute of 1867. The main design was, to introduce [568]*568liens to secure the wages of the laborer or employee (see 1st section), and in favor of the employer, for supplies furnished to the laborer (see 10th section); neither of which cases were embraced in the prior statute.
The person entitled to a lien under the first section is the laborer or employee for wages, and not the tenant or lessee.
There is some obscurity in the language of the 10th section, or rather there is difficulty in giving an application of the words used, so as to make the lien beneficial against all laborers employed in the production of a crop. The lien takes effect on all “agricultural products.” If the laborer is to receive moneyed Wages, in such case, there is no “product” belonging to him upon which the lien can take effect for the supplies. But if the laborer is to secure part of the crop for his “ wages,” then the lien would take effect upon that. The “ wages ” may as well be for a part of the product as for money.
Washburn (1 vol. Real Prop., p. 500), after examining the cases, states that it is difficult, if not impossible to fix any rule by which to determine whether carrying on a farm by one not the owner upon shares, constitutes him a tenant with separate right of property in the crop, or a tenant in common of the crops, or a mere hired laborer or cropper. It is easy to assign many,, perhaps the great majority of cases, to their appropriate class. A tenant or lessee has ah interest in the soil. Generally the products of the land are his separate property, subject to a right in the landlord to the privileges conferred bylaw for getting his rent, whether in kind or in money. A demise of a farm, or so-many acres, or a certain part thereof, for so much corn or cotton per acre, or for the entire premises, is a letting, and- creates a tenancy. So of a grist mill, “ for one-third of the toll which the mill grinds.” Fry v. Jones, 2 Rawle Rep., 11. If a laborer engages to work on the farm for so many bushels of corn, or pounds of cotton for the year or other definite time, this would be rendering service for wages, and would not be a tenancy.
[569]*569Parties made this agreement: F. put out from 25 to 30 acres of the farm in wheat, F. to have two-thirds of the crop and B. one-third, held not to make F. a tenant of R. Adams v. McKesson, Executrix, 53 Penn. St. Rep., 84. A tenancy exists, however, if the cultivator agrees to pay a certain number of bushels of wheat as rent of the premises. Tanner v. Hill, 44 Barb., 430; 15 Barb., 597.
The law is well settled that there may be a letting of land from year to year, or for one year, where the relation of landlord and tenant exists, though the rent be paid in a part of the product. It is equally well settled that one party may cultivate the land of another for the purpose of making a crop, of which the owner of the land is to have a part and the cultivator a part, where the parties would be tenants in common of the crop, and would not sustain the relation of landlord and tenant.
Whether the contract be of the one kind or the other, depends on the intention of the parties, to be gathered from all the attending circumstances. Alwood v. Ruckman, 21 Ill., 201.
The agreed facts are very meagre in defining the terms of the contract between Batliff and Warren. We are inclined to the opinion, and so hold, that Warren did not become the tenant of Batliff, but was a laborer or cultivator for a share of the crop, and that he and Batliff were tenants in common of the products.
Does the 10th section of the act of 1872 give a lien to the land owner who advances supplies to laborers who cultivate for a share of the crop? The laborer must have an interest in the “agricultural products,” for that is the subject upon which the lien attaches, otherwise there is no lien. If he work for wages in money, plainly there is no lien. Generally the laborer is to be paid in a specific portion of the product, is supplied with food, the chief item of expense, by the hirer.
We must give such construction of the words, if they will admit of it, as will carry out the intention of the law maker. A large part of the crops of this state are cultivated, in common [570]*570parlance, “on the shares.” The laborers apply their industry, skill and time in planting, cultivating and gathering, on the terms of division of the crops with the land proprietor, as may be agreed. The first section as we have seen, uses the words, “labor done” for “wages.” That implies a certain compensation in money or in kind. The 10th section carefully excludes the words for “wages,” “work done for wages,” or “laborer for wages.” The words are in form of every employer as against every laborer employed by him in the production of agricultural crops.
If the section “ be restricted to those who are hirelings for part of the crop, for wages,” it would practically have but a narrow •application, but if it be construed so as to “embrace all laborers engaged in making the crop, for a share thereof, then it would ■embrace that class who need, more than any others, provisions, clothing and necessary plantation supplies, and moneys advanced for their purchase.” The man who is hired for wages, generally eats the food and uses the implements of his employer, and has no need of provisions, plantation supplies, or money to buy them. But the man who works for a share of the crop, generally furnishes his own provisions, clothing, etc., and if he has not the ■ready means of doing so, they must be got upon a credit. This section offers such security to the employer, whose land he cultivates, that he would be safe in meeting his wants. We are of ■opinion, therefore, that this section was designed to embrace that large class of laborers who make crops for their “ employers,” on the shares, and with whom they are tenants in common of the products, and to whom the “ employer,” whether owner or lessee, furnishes “ provisions, clothing and necessary plantation supplies, or money” to procure the same. The law creates the lien to induce such land proprietor to give the credit, and thereby enable laborers to make crops on that plan. That construction would carry out the double purpose, first, of securing the laborer, and, secondly, the land owner. The act of April 17, 1873, is amendatory of and an enlargement of the operation of the act of April, [571]*5711872. The first section so extends the lien, as that it protects the interest of the laborer in the crop, until a just and equitable decision thereof; and also protects the share and interest of the landlord, against any debt or judgment against such tenant. The entire scope of the first section of this act, is to assure to the cultivator, on the shares, his equitable and just portion of the crop, and to the land proprietor his part, so that the interest of neither shall be affected by the debts or incumbrances of the other.
It only remains to consider, whether advances made by Ratliff, on the faith of the act of April, 1.872, is paramount to the right arising under the trust deed. Clearly the legislature could not create a statutory lien which would impair a prior lien expressly permitted by law. Indeed the thirteenth section declares as much, and makes valid, mortgages and deeds of trust theretofore made.
The case made by the agreement of the parties does not state when the supplies were furnished, with more definiteness than is implied in the words “ during the year.” Certainly Ratliff had no lien for such advances, before the 8th of April, the date of the passage of the law which conferred it. The deed of trust of date 2d of January, preceding, is prior to the law under which Ratliff’s claim arose, and took effect upon the crop so soon as it grew.
The question is not involved in this record, of the relative superiority of Liens, for advances begun to be made after this act passed, aDd running through the year, and a deed of trust made after the same date.
We are of opinion that the plaintiff ought to have recovered.
Judgment reversed and a new trial awarded.