Hill, J.
(After stating the foregoing facts.) The controlling question of law, under the facts of this case, is, what was the relationship between Underwood, the plaintiff, and Manley, the defendant? Was that relationship one of landlord and tenant, or of vendor and vendee ? If the evidence shows that at the time the fertilizers were furnished by Underwood to Manley, Underwood occupied the relationship of landlord to Manley, it follows, as a matter of statutory law, that Underwood had a landlord’s lien for rent and a lien for the supplies furnished to make the crop for the year when his distress warrant for the rent was issued and his lien for supplies was foreclosed, and that a verdict in his favor resulted. If at that time Underwood occupied the relationship of a vendor and the defendant of vendee, the ver[827]*827diet in this case is contrary to law and should be set aside. Incidental to the question as to the relationship between the plaintiff and the defendant another question arises, to wit: Were the supplies furnished by the plaintiff to the defendant while the plaintiff occupied the relationship of landlord .to Manley, or while they occupied the relationship of vendor and vendee? The learned trial judge submitted these two questions to the jury, presenting, in his instructions to the jury as to these two questions, a most illuminating statement of the law applicable to the evidence as the jury might find the facts to be. The jury found, in answer to the first question, that the bond for title held by J. M. Manley from F. ly.- Underwood was cancelled in March, 1920, by both parties. The evidence as to this fact was in direct conflict. The plaintiff swore positively that the bond for title was cancelled in -writing by the consent of Manley, the defendant, in March, 1920. The defendant, on the contrary, swore positively that the bond for title had never been cancelled and that the ex-ecutory contract of sale was still in force. The jury had the right to accejit the testimony of the plaintiff on this point.
The evidence shows that after this cancellation was made, as claimed by Underwood, Manley remained in possession of the property as Underwood’s tenant, and that while this relationship existed Underwood furnished to Manley, as tenant, fertilizers to make a crop for .that year on the land which he had previously agreed to sell but which was then occupied by Manley as a tenant. And the jury, in answer to the question submitted by the court, “ Did Underwood furnish fertilizers to Manley as landlord ? ” answered in the affirmative. The jury, therefore, having passed upon both these questions in favor of the contention of the plaintiff that he was a landlord when the supplies were furnished and the distress warrant for rent issued, and these answers being supported by evidence, it follows that the verdict in favor of Underwood, giving him priority in the distribution of the funds arising from the sale of the crops made on the land in question was right in. law and should be allowed to stand, unless there appears to have been some prejudicial error committed by the judge in the trial of the case, either in his rulings on testimony, or in his charge to the jury, or his refusal to charge.
Subsequently to the cancellation of the bond for title the re[828]*828lationship between Underwood and Manley of landlord and tenant continued until May 20, 1920, when, according to the testimony of Underwood, at the urgent request of Manley, he. gave Manley another chance to pay for the land, and a new contract was entered into between the two, which, in effect, extended the time of payment and provided that if the payment was not made in accordance with the agreement, the relationship of landlord and tenant should continue to exist. This contract was construed by the trial judge as continuing the relationship of landlord and tenant, with the right in the tenant, Manley, to purchase the land in question by paying the purchase-money notes as they became due; and, under this construction, as the undisputed evidence showed that Manley had failed to pay the first of these notes when it became due, the relationship of landlord and tenant continued. To this situation the judge, in his charge, applied the principle of law as announced in the case of Hodnett v. Mann, 10 Ga. App. 666 (73 S. E. 1082), as follows: “Where an owner of land contracts with another to sell it at a stipulated price, to be divided into installments becoming due at specified times, and further stipulates that in the event the installments are not paid when they mature, the owner shall be paid a specified sum as rental for the land, the legal effect of the contract is to create the relation of landlord and tenant between the parties, with an option to the tenant to purchase the land upon the terms and conditions set forth in the contract.” And “where, after the execution of such a contract, and before the first installment of the purchase-price becomes due, the parties mutually agree upon a rescission of so much of the contract as relates to a purchase of the land, the owner has a lien upon the crops grown upon the premises described in the contract, both for rent and for supplies furnished by him which were necessary to make the crop.” Under this decision, as applied to the facts of this case, the verdict in favor of Underwood, giving him a priority on the funds in the hands of the sheriff, realized from the sale of the crops made on the land in question, which Manley held as tenant under his agreement with Underwood, was a proper verdict.
What we have said thus far applies to the relative rights of Underwood and Manley, and is especially applicable to the general grounds of the motion for a new trial filed by Manley. In [829]*829his amendment to the motion for a new trial Manley assigns error on certain special grounds which will be considered seriatim.
First. Error is assigned as to the ruling of the court m admitting in evidence the testimony of Underwood as follows: " I furnished J. M. Manley guano in 1920, the guano he used on the F. K. Underwood lands and on the Mrs. Underwood and Strozier lands. This guano was furnished through the Zebulon Gin & Fertilizer Company of Zebulon, Ga., and amounted to the sum of $3,019.45, to be used, and was used, under crops growing on these lands.” It was objected that this evidence was inadmissible and immaterial and should not have been admitted; that Manley was, under the evidence, in possession of the land at the time the guano was furnished, as a purchaser holding bond fox title from Underwood, and Underwood was not landlord, and, not being landlord, could not furnish the same as landlord; and on the further ground that his evidence as to furnishing the same in such capacity was a conclusion of the witness. This evidence was admissible. It bears directly upon the question which is the fundamental question in the case, as to what was the relation between Underwood and Manley when the guano was furnished in 1920. It was claimed by Underwood that the executory contract of sale made with Manley had been cancelled by mutual consent between him and Manley, and it illustrated the question submitted by the court to the jury, as to what was that relationship between Underwood and Manley after the cancellation of the bond for title; which question was answered by the verdict finding that the relationship was one of landlord and tenant. The testimony was material to this issue, was not a conclusion of the witness, and enabled the jury to determine the very question involved, to wit, the relationship which existed between Underwood and Manley after the cancellation of the bond for title.
Second.
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Hill, J.
(After stating the foregoing facts.) The controlling question of law, under the facts of this case, is, what was the relationship between Underwood, the plaintiff, and Manley, the defendant? Was that relationship one of landlord and tenant, or of vendor and vendee ? If the evidence shows that at the time the fertilizers were furnished by Underwood to Manley, Underwood occupied the relationship of landlord to Manley, it follows, as a matter of statutory law, that Underwood had a landlord’s lien for rent and a lien for the supplies furnished to make the crop for the year when his distress warrant for the rent was issued and his lien for supplies was foreclosed, and that a verdict in his favor resulted. If at that time Underwood occupied the relationship of a vendor and the defendant of vendee, the ver[827]*827diet in this case is contrary to law and should be set aside. Incidental to the question as to the relationship between the plaintiff and the defendant another question arises, to wit: Were the supplies furnished by the plaintiff to the defendant while the plaintiff occupied the relationship of landlord .to Manley, or while they occupied the relationship of vendor and vendee? The learned trial judge submitted these two questions to the jury, presenting, in his instructions to the jury as to these two questions, a most illuminating statement of the law applicable to the evidence as the jury might find the facts to be. The jury found, in answer to the first question, that the bond for title held by J. M. Manley from F. ly.- Underwood was cancelled in March, 1920, by both parties. The evidence as to this fact was in direct conflict. The plaintiff swore positively that the bond for title was cancelled in -writing by the consent of Manley, the defendant, in March, 1920. The defendant, on the contrary, swore positively that the bond for title had never been cancelled and that the ex-ecutory contract of sale was still in force. The jury had the right to accejit the testimony of the plaintiff on this point.
The evidence shows that after this cancellation was made, as claimed by Underwood, Manley remained in possession of the property as Underwood’s tenant, and that while this relationship existed Underwood furnished to Manley, as tenant, fertilizers to make a crop for .that year on the land which he had previously agreed to sell but which was then occupied by Manley as a tenant. And the jury, in answer to the question submitted by the court, “ Did Underwood furnish fertilizers to Manley as landlord ? ” answered in the affirmative. The jury, therefore, having passed upon both these questions in favor of the contention of the plaintiff that he was a landlord when the supplies were furnished and the distress warrant for rent issued, and these answers being supported by evidence, it follows that the verdict in favor of Underwood, giving him priority in the distribution of the funds arising from the sale of the crops made on the land in question was right in. law and should be allowed to stand, unless there appears to have been some prejudicial error committed by the judge in the trial of the case, either in his rulings on testimony, or in his charge to the jury, or his refusal to charge.
Subsequently to the cancellation of the bond for title the re[828]*828lationship between Underwood and Manley of landlord and tenant continued until May 20, 1920, when, according to the testimony of Underwood, at the urgent request of Manley, he. gave Manley another chance to pay for the land, and a new contract was entered into between the two, which, in effect, extended the time of payment and provided that if the payment was not made in accordance with the agreement, the relationship of landlord and tenant should continue to exist. This contract was construed by the trial judge as continuing the relationship of landlord and tenant, with the right in the tenant, Manley, to purchase the land in question by paying the purchase-money notes as they became due; and, under this construction, as the undisputed evidence showed that Manley had failed to pay the first of these notes when it became due, the relationship of landlord and tenant continued. To this situation the judge, in his charge, applied the principle of law as announced in the case of Hodnett v. Mann, 10 Ga. App. 666 (73 S. E. 1082), as follows: “Where an owner of land contracts with another to sell it at a stipulated price, to be divided into installments becoming due at specified times, and further stipulates that in the event the installments are not paid when they mature, the owner shall be paid a specified sum as rental for the land, the legal effect of the contract is to create the relation of landlord and tenant between the parties, with an option to the tenant to purchase the land upon the terms and conditions set forth in the contract.” And “where, after the execution of such a contract, and before the first installment of the purchase-price becomes due, the parties mutually agree upon a rescission of so much of the contract as relates to a purchase of the land, the owner has a lien upon the crops grown upon the premises described in the contract, both for rent and for supplies furnished by him which were necessary to make the crop.” Under this decision, as applied to the facts of this case, the verdict in favor of Underwood, giving him a priority on the funds in the hands of the sheriff, realized from the sale of the crops made on the land in question, which Manley held as tenant under his agreement with Underwood, was a proper verdict.
What we have said thus far applies to the relative rights of Underwood and Manley, and is especially applicable to the general grounds of the motion for a new trial filed by Manley. In [829]*829his amendment to the motion for a new trial Manley assigns error on certain special grounds which will be considered seriatim.
First. Error is assigned as to the ruling of the court m admitting in evidence the testimony of Underwood as follows: " I furnished J. M. Manley guano in 1920, the guano he used on the F. K. Underwood lands and on the Mrs. Underwood and Strozier lands. This guano was furnished through the Zebulon Gin & Fertilizer Company of Zebulon, Ga., and amounted to the sum of $3,019.45, to be used, and was used, under crops growing on these lands.” It was objected that this evidence was inadmissible and immaterial and should not have been admitted; that Manley was, under the evidence, in possession of the land at the time the guano was furnished, as a purchaser holding bond fox title from Underwood, and Underwood was not landlord, and, not being landlord, could not furnish the same as landlord; and on the further ground that his evidence as to furnishing the same in such capacity was a conclusion of the witness. This evidence was admissible. It bears directly upon the question which is the fundamental question in the case, as to what was the relation between Underwood and Manley when the guano was furnished in 1920. It was claimed by Underwood that the executory contract of sale made with Manley had been cancelled by mutual consent between him and Manley, and it illustrated the question submitted by the court to the jury, as to what was that relationship between Underwood and Manley after the cancellation of the bond for title; which question was answered by the verdict finding that the relationship was one of landlord and tenant. The testimony was material to this issue, was not a conclusion of the witness, and enabled the jury to determine the very question involved, to wit, the relationship which existed between Underwood and Manley after the cancellation of the bond for title.
Second. It is insisted in this objection that the court erred in submitting to the jury the following question: "Was the bond for title held by J. M. Manley from F. K. Underwood can-celled in March, 1920, by the consent of both parties ? ” The jury answered this question in the affirmative. What we have said on the foregoing assignment of error applies to this assignment also. The controlling issue in the ease was whether the ex-[830]*830ecutory contract of sale entered into between Underwood and Manley in August, 1919, remained of force in 1920, or whether the parties thereto had by mutual agreement abrogated it. If this contract remained of force, Manley’s possession of the land was as a purchaser, and he would not have been liable for the rent for 1920, nor would Underwood have had a lien on the crops of that year for supplies furnished by him to Manley, but if the contract was abrogated by mutual consent, then Manley would be liable to Underwood as landlord, and Underwood would have a lien for the supplies. This was, as above stated, the controlling issue, and this issue was properly submitted for determination by the jury, and the verdict finding that the bond for title was abrogated in 1920 by the consent of both parties was fully supported by the evidence.
Third. It is insisted that the court erred in charging the jury as follows: “ If the bond for title was cancelled by the consent of both parties, that is, F. I£. Underwood and J. M. Manley, the legal effect of that cancellation would be, J. M. Manley would become a tenant at will or sufferance.' If the bond for title was not cancelled by the consent of both parties, then J. M. Manley remained in possession of the premises under his original bond for title as purchaser. So look to the evidence and see what is the truth of the matter, see if the bond for title was cancelled, see if the cancellation was written on the same; and, if so, was it by the consent of J. M. Manley ? Did J. M. Manley know that it was being cancelled, and did he consent to it being done ? And determine this question by answering yes or no.” As above stated, the jury’s answer to this question was “Yes.” It is insisted that this charge was error in that it gave an incorrect principle of law, the evidence being that even if the parties sought, by this writing across the bond for title, to avoid it (the movant denying that it was cancelled or voided), it vías not can-celled or voided by the attempt, because there had been no rescission of the contract by the attempt to rescind, because under the evidence the parties did not restore each other to the original status; that Manley held to his bond for title and Underwood kept the purchase-money notes for the land, and Manley gave to Underwood, and Underwood kept, the sum of $40 in cash that Manley paid Underwood on the land. In other words, there was [831]*831no legal rescission of tlie executory contract of purchase, because there was no restitution by Underwood. It i.s not material whether the tenancy of Manley was at will or sufferance, and the only complaint is that the attempted cancellation was not in law a real cancellation notwithstanding that both parties agreed that there was a cancellation. In other words, the right of the parties to make a contract and to mutually agree to abrogate it is denied. The doctrine of restitution, as applicable to rescission of contracts, applies only where one of the parties seeks to rescind the contract without the consent of the other. It has no application to the rescission of a contract by mutual agreement of the parties. Civil Code (1910), §§ 4304, 4306. And the issue submitted by the trial court to the jury was whether there had been a cancellation of the contract of sale by the consent of both parties. Therefore it was immaterial whether any restitution had been made; the onty material question being whether or not the executory contract of sale had been cancelled by the consent of both parties.
Fourth. Another assignment of error objected to the following charge: “I charge you, however, that Underwood would have the right to buy goods from some one else, or to furnish them out of his own store or house. If Underwood bought the goods from some other party, and that party delivered them to Manley, if Underwood was the purchaser in the first instance, that would amount to the same thing in law as if he furnished them, and he would have a lien.” One of the contentions was that the fertilizer, furnished to Manley to make the crop for 1920, was bought directly by Manley, and that Underwood had been simply his security for the payment. On this point the evidence was in conflict; Manley testified that he had bought the fertilizer from the fertilizer company and that he was the debtor, with Underwood as security on the notes given for the fertilizer. Underwood insisted that he had bought the fertilizers and had furnished them to Manley himself. The fertilizer company, through its agent, testified that the company had sold the fertilizer to Underwood and that the credit for them had been given to Underwood and not Manley. The charge on this question is in harmony with numerous decisions of the Supreme Court. In the case of Scott v. Pound, 61 Ga. 579, it was declared that a [832]*832landlord may furnish the fertilizers directly from his own store, or may order them from others on his credit, and have them delivered with or without passing through his hands. “ If he is the real purchaser for the tenant, the case is one for a lien, even though the joint and several note of landlord and tenant be given for the price. But if the tenant is the real purchaser in the first instance, not deriving title through the landlord, there is no lien. What the truth of the matter is, in its substance and reality, is a question for the jury.” This question was submitted to a decision of the jury and their verdict in favor of Underwood is amply supported by the evidence.'
There are several other assignments in the amended motion. We have considered each of them carefully in connection with the record in the case and we are satisfied that they contain no merit. The charge of the court, considered as a whole, in so far as it referred to the relationship, under the evidence, between Underwood and Manley, and to the respective rights of each, was a clear, accurate, and luminous submission of the law applicable to the facts. And the verdict, in so far as it determined the relationship between Underwood and Manley, and the resulting rights respectively of the two, is fully supported.
What we have said applies also to the issue between the R. F. Strickland Company and Underwood. This company foreclosed its mortgage on the crops of Manley for the year 1920 and placed its execution in the hands of the sheriff and claimed the proceeds of the sale of the crops for that year. Learned counsel for the Strickland Company contend that the company had a superior lien to that of Underwood because it furnished the supplies without notice of any change of relationship and on the faith that J. M. Manley was the purchaser of the Underwood land and was his own landlord, and that when the supplies were so furnished they believed they were furnishing them to the owner of the land as a purchaser, and that the vendor and the vendee changed that relationship without any notice to the Strickland Company, and that as the company was an innocent third party this change of relationship did not affect the rights of the company; and in support of this contention they quote from the ruling in Wilkins v. Fulcher, 9 Ga. App. 68 (70 S. E. 691), as follows: “The vendor and the vendee in an executory sale can not, by a new and [833]*833distinct contract of rescission, convert their relationship into that of landlord and tenant, so as to affect the intervening rights of third persons.” This excerpt is correct, but the remainder of the paragraph from which it is taken is applicable to the facts of this case, to wit: “But where, in the contract as originally made, the rescission is provided for, and it takes place in accordance with the original agreement, third persons can not complain that the effect of the rescission is to impair or diminish special rights which they would have had if the parties had carried out the contract as originally intended, instead of rescinding it, unless the rescinding person has done something which would make it unconscionable for him to exercise the right as against the particular third person whose rights are likely to be affected. In this case the complaining third person voluntarily became the creditor of the conditional vendee after he had full notice of the exact nature of the rights which the landowner had reserved in parting with the possession of his land; indeed, this third person himself had participated in forming the contract between the parties, and is in no position to complain because the landowner, in his capacity as landlord, by virtue of the rescission which ensued, is enforcing a landlord’s special lien against the crops raised on the land.” The evidence in the present case shows that when the Strickland Company sold the fertilizers to Manley the president of the company had notice that there had been a default as to payment of the first installment of the purchase-price of the land. He testified as follows: “I did read the bond for title, saying the same should be void for non-payment, when I agreed to furnish him, and Manley told me that he had defaulted in the first payment and tried to get me to let him have the first installment. I refused because I did not think the land was worth the price he had agreed to pay, and that I did not think Manley had any equity in the land.” It thus appears that the Strickland ■Company, before it furnished these fertilizers to Manley, was put ■on notice that the condition had happened which authorized the obligor to cancel the bond, and it also appears that Underwood •did not do anything to induce the Strickland Company to furnish Manley. In fact he did not know that the company was furnishing him the fertilizers. The case falls squarely within the rul[834]*834ing announced in Wilkins v. Fulcher, supra. If the Strickland Company, with full knowledge that Underwood had the right to cancel the bond for title for a failure of the obligee to comply with an express condition therein, and, with no inducement from Underwood, but without his knowledge or consent, took the risk of furnishing Manley on the faith of the bond, then it can blame no one but itself for this commercial venture and hazard.
Without extending this discussion further, it is sufficient to say that a careful examination of the record and of the special assignments of error convinces this court that no material error on the trial was committed, and that the verdict finding in favor of Underwood on his special lien as landlord for rent, and also his special lien as landlord for the supplies furnished for making the crops for the year 1920, during the existence of the relationship of landlord and tenant between Underwood and Manley, and that these liens were prior in dignity, under the statute, to the liens of the Strickland Company and A. R. Manley, was supported by the evidence and the law as given in charge by the learned trial judge. Civil Code (1910), §§ 3341, 3348 (6). The judgment refusing to grant a new trial to either of the movants should therefore be affirmed.
In view of this conclusion, the cross-bills of exceptions filed by Underwood, objecting to the rulings of the trial judge as to the admissibility of certain evidence in the case of Underwood against Manley, and the intervention of the Strickland Company, need not be considered, and the cross-bills will be dismissed.
Judgments on the main bills of exceptions affirmed; cross-bills dismissed.
Jenkins, P. J., and Stephens, J., concur.