Mr. Chief Justice Hichman
delivered the opinion of the Court.
This is a contest between the heirs of a landlord and an attaching creditor involving the question of priority of liens. The trial court rendered summary judgment in favor of the heirs, and the Court of Civil Appeals reversed that judgment and rendered summary judgment in favor of the creditor on its cross motion. 258 S.W. 2d 153.
Respondent, First National Bank of Angleton, instituted this suit against F. I. Warwick upon a promissory note and caused a writ of attachment to be issued and levied upon seven bales of [72]*72cotton grown by Warwick "as a tenant under a contract with George H. Bingham as landlord. The cotton was removed from the rented premises less than thirty days before the attachment was levied. No question is presented as to the regularity of the attachment proceeding. A plea of intervention was filed by the heirs of George H. Bingham, deceased, alleging that by written lease, dated October 19, 1946, Bingham leased to Warwick approximately three hundred acres of land for farming purposes for a term of five years, beginning January 1, 1947, at a rental of $2,500.00 for the first year and $3,000.00 payable annually in advance for each of the succeeding four years; that of the $3,000.00 rental to be paid in advance on January 1, 1950, for the ensuing calendar year only $1,500.00 had been paid, leaving an indebtedness owing by Warwick of $1,500.00 as rental for that year, “which sum was secured by a statutory landlord’s lien upon all crops grown upon the premises described in said lease.” It was alleged that Warwick planted approximately one hundred acres of the leased premises in cotton during that year, and that the seven bales of cotton covered by the attachment was all the cotton grown by him during that year.
It was further alleged that the plaintiff, the defendant, and the intervenors had agreed that the cotton should be sold free and clear of any lien and that the proceeds of such sale should be evidenced by a check payable jointly to the bank and the intervener J. H. Tigner, and that “if the lien of the intervenors, if any they had, should be determined to be then superior and prior to the attachment lien claimed by the plaintiff, Intervenors should be entitled to the proceeds of the sale of said cotton to the extent of the indebtedness due them by defendant, and, likewise, if the lien of the plaintiff, if any it had, be determined to be then superior and prior to that claimed by Intervenors, it should recover the proceeds of the sale of said cotton to the extent of the indebtedness of defendant to it.” Pursuant to the agreement the cotton was sold for $1,199.25, and the check is being held by the bank awaiting the outcome of the suit. The defendant, Warwick, filed no answer and made no appearance in the case. The intervenors filed a motion for summary judgment, and in support thereof filed an affidavit which, in substance, stated as facts the allegations in their plea of intervention. The bank filed a cross motion for a summary judgment. As noted above, the trial court granted intervenors’ motion and denied the cross motion of the bank, while the Court of Civil Appeals granted the bank’s cross motion and denied the motion of intervenors.
Intervenors have neither a common law lien nor a contract [73]*73lien. They rely solely upon their claim of a statutory lien under Article 5222 of the Revised Statutes as amended in 1931 (Vernon’s Annotated Civil Statutes, Art. 5222). We are, therefore, called upon to construe that staute, the provisions of which material to this case being as follows:
“All persons leasing or renting lands or tenements at will or for a term of years shall have a preference lien upon the property of the tenant, as hereinafter indicated, * * * whether the same is to be paid in money, agricultural products or other property; and this lien shall apply * * * to the crop raised on such premises. * * *
“This article shall not apply in any way or in any case where any person leases or rents lands or tenements at will or for a term of years for agricultural purposes where the same is cultivated by the tenant who furnishes everything except the land, and where the landlord charges a rental of more than one-third of the value of the grain and more than one-fourth of the value of the cotton raised on said land; * * * and any contract for the leasing or renting of land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for shall not carry any statutory lien nor shall such lien attach in favor of the landlord, his estate or assigns, upon any of the property named, nor for the purpose mentioned in this article.”
This article was amended in 1915, but the amendment was declared unconstitutional in Culberson v. Ashford, 118 Texas 491, 18 S.W. 2d 585. The provision of that amendment which condemned it was “any contract for the leasing or renting of land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for, shall be null and void, and shall not be enforceable in any court in this State by an action either at law or in equity, and no lien of any kind, either contractural or statutory, shall attach in favor of the landlord, his estate or assigns, upon any of the property named, nor for the purpose mentioned in this article.”
The amendment of 1931, which is embodied in the second paragraph of the present article, does not deal at all with the validity of rental contracts, but only with statutory liens in cases like the instant one where no lien is fixed by contract. It does not undertake to limit the right of parties to contract. In construing the statute our sole concern, therefore, is to find under what condit-'ons the statute creates a lien in favor of a landlord who did [74]*74not create one by contract. The validity of the rental contract in this case is not questioned by us.
The question of who carries the burden of proof is not in the case as it comes to us. That would arise only upon a trial of the case upon its merits. The failure of one party in a hearing upon a motion for summary judgment to discharge the burden which would rest on him at a trial on the merits is no ground for a summary judgment in favor of the other party. In order to be entitled to a summary judgment, the burden rests upon the landlord to prove that he is entitled thereto as a matter of law. (Rule 166-A, Texas Rules of Civil Procedure.) When both parties move for a summary judgment, the burden is upon each to prove clearly his right thereto, and neither party can prevail because of the failure of the other to discharge his burden. Steinberg v. Adams et al, 90 Fed. Supp. 604; Walling v. Richmond Screw Anchor Co., 2 Civ. 154 Fed. 2d 780; Federal Practice and Procedure, Barron and Holtzoff, § § 1235 and 1239; Moore’s Federal Practice, Vol. 6, § 56.13.
We cannot adopt the theory that, since it cannot be determined until after crops are harvested whether the rental charge exceeded the value of one-third the grain plus one-fourth the cotton, the Legislature intended that the amendment should not apply when the contract is for money rent. That theory was rejected by the Waco Court of Civil Appeals in a well-reasoned opinion in Citizens State Bank of Alvarado v. Schmauder, 139 S.W. 2d 619, and by clear implication was rejected by this court in Culberson v. Ashford, 118 Texas 491, 18 S.W. 2d 585.
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Mr. Chief Justice Hichman
delivered the opinion of the Court.
This is a contest between the heirs of a landlord and an attaching creditor involving the question of priority of liens. The trial court rendered summary judgment in favor of the heirs, and the Court of Civil Appeals reversed that judgment and rendered summary judgment in favor of the creditor on its cross motion. 258 S.W. 2d 153.
Respondent, First National Bank of Angleton, instituted this suit against F. I. Warwick upon a promissory note and caused a writ of attachment to be issued and levied upon seven bales of [72]*72cotton grown by Warwick "as a tenant under a contract with George H. Bingham as landlord. The cotton was removed from the rented premises less than thirty days before the attachment was levied. No question is presented as to the regularity of the attachment proceeding. A plea of intervention was filed by the heirs of George H. Bingham, deceased, alleging that by written lease, dated October 19, 1946, Bingham leased to Warwick approximately three hundred acres of land for farming purposes for a term of five years, beginning January 1, 1947, at a rental of $2,500.00 for the first year and $3,000.00 payable annually in advance for each of the succeeding four years; that of the $3,000.00 rental to be paid in advance on January 1, 1950, for the ensuing calendar year only $1,500.00 had been paid, leaving an indebtedness owing by Warwick of $1,500.00 as rental for that year, “which sum was secured by a statutory landlord’s lien upon all crops grown upon the premises described in said lease.” It was alleged that Warwick planted approximately one hundred acres of the leased premises in cotton during that year, and that the seven bales of cotton covered by the attachment was all the cotton grown by him during that year.
It was further alleged that the plaintiff, the defendant, and the intervenors had agreed that the cotton should be sold free and clear of any lien and that the proceeds of such sale should be evidenced by a check payable jointly to the bank and the intervener J. H. Tigner, and that “if the lien of the intervenors, if any they had, should be determined to be then superior and prior to the attachment lien claimed by the plaintiff, Intervenors should be entitled to the proceeds of the sale of said cotton to the extent of the indebtedness due them by defendant, and, likewise, if the lien of the plaintiff, if any it had, be determined to be then superior and prior to that claimed by Intervenors, it should recover the proceeds of the sale of said cotton to the extent of the indebtedness of defendant to it.” Pursuant to the agreement the cotton was sold for $1,199.25, and the check is being held by the bank awaiting the outcome of the suit. The defendant, Warwick, filed no answer and made no appearance in the case. The intervenors filed a motion for summary judgment, and in support thereof filed an affidavit which, in substance, stated as facts the allegations in their plea of intervention. The bank filed a cross motion for a summary judgment. As noted above, the trial court granted intervenors’ motion and denied the cross motion of the bank, while the Court of Civil Appeals granted the bank’s cross motion and denied the motion of intervenors.
Intervenors have neither a common law lien nor a contract [73]*73lien. They rely solely upon their claim of a statutory lien under Article 5222 of the Revised Statutes as amended in 1931 (Vernon’s Annotated Civil Statutes, Art. 5222). We are, therefore, called upon to construe that staute, the provisions of which material to this case being as follows:
“All persons leasing or renting lands or tenements at will or for a term of years shall have a preference lien upon the property of the tenant, as hereinafter indicated, * * * whether the same is to be paid in money, agricultural products or other property; and this lien shall apply * * * to the crop raised on such premises. * * *
“This article shall not apply in any way or in any case where any person leases or rents lands or tenements at will or for a term of years for agricultural purposes where the same is cultivated by the tenant who furnishes everything except the land, and where the landlord charges a rental of more than one-third of the value of the grain and more than one-fourth of the value of the cotton raised on said land; * * * and any contract for the leasing or renting of land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for shall not carry any statutory lien nor shall such lien attach in favor of the landlord, his estate or assigns, upon any of the property named, nor for the purpose mentioned in this article.”
This article was amended in 1915, but the amendment was declared unconstitutional in Culberson v. Ashford, 118 Texas 491, 18 S.W. 2d 585. The provision of that amendment which condemned it was “any contract for the leasing or renting of land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for, shall be null and void, and shall not be enforceable in any court in this State by an action either at law or in equity, and no lien of any kind, either contractural or statutory, shall attach in favor of the landlord, his estate or assigns, upon any of the property named, nor for the purpose mentioned in this article.”
The amendment of 1931, which is embodied in the second paragraph of the present article, does not deal at all with the validity of rental contracts, but only with statutory liens in cases like the instant one where no lien is fixed by contract. It does not undertake to limit the right of parties to contract. In construing the statute our sole concern, therefore, is to find under what condit-'ons the statute creates a lien in favor of a landlord who did [74]*74not create one by contract. The validity of the rental contract in this case is not questioned by us.
The question of who carries the burden of proof is not in the case as it comes to us. That would arise only upon a trial of the case upon its merits. The failure of one party in a hearing upon a motion for summary judgment to discharge the burden which would rest on him at a trial on the merits is no ground for a summary judgment in favor of the other party. In order to be entitled to a summary judgment, the burden rests upon the landlord to prove that he is entitled thereto as a matter of law. (Rule 166-A, Texas Rules of Civil Procedure.) When both parties move for a summary judgment, the burden is upon each to prove clearly his right thereto, and neither party can prevail because of the failure of the other to discharge his burden. Steinberg v. Adams et al, 90 Fed. Supp. 604; Walling v. Richmond Screw Anchor Co., 2 Civ. 154 Fed. 2d 780; Federal Practice and Procedure, Barron and Holtzoff, § § 1235 and 1239; Moore’s Federal Practice, Vol. 6, § 56.13.
We cannot adopt the theory that, since it cannot be determined until after crops are harvested whether the rental charge exceeded the value of one-third the grain plus one-fourth the cotton, the Legislature intended that the amendment should not apply when the contract is for money rent. That theory was rejected by the Waco Court of Civil Appeals in a well-reasoned opinion in Citizens State Bank of Alvarado v. Schmauder, 139 S.W. 2d 619, and by clear implication was rejected by this court in Culberson v. Ashford, 118 Texas 491, 18 S.W. 2d 585. We have examined the record in the last mentioned case, and it discloses that the very reasoning upon which that theory is based was rejected therein. The tenant brought suit in the justice court against his landlord for double the amount of money rent paid by him. The rental contract was for $5.00 per acre rent on ten acres of land planted in cotton. The value of the cotton harvested on the land that year was $100.00. The tenant, having paid $50.00 as rent, sued under the amendment of 1915 for double that amount. There was an additional issue in the case concerning a $22.00 payment, but that is immaterial here. Upon a trial of the case the landlord, over the objection of the tenant, was permitted to testify that the land on an average year would have yielded cotton of the value of at least $200.00. The question at issue, and the only question, was whether the provisions of the amendment of 1915 were applicable to that contract for money rent. The trial court held that the amendment was not applicable, and the tenant appealed. The landlord filed no brief in the Court of [75]*75Civil Appeals nor in this court, and no question as to the validity of the amendment was raised in the Court of Civil Appeals. The position of the tenant before that court was that after the crop was harvested it was disclosed that the rental charge was one-half the value of the cotton, and that, therefore, he was entitled to recover, and that the trial court erred in admitting the testimony of the landlord about what crops the land would have made on an average year. The Court of Civil Appeals certified the question of the constitutionality of the statute to this court. In the certificate the Court of Civil Appeals stated that in its opinion the appellant (tenant) was entitled to have the case reversed if the statute referred to was constitutional. In other words, it held that the statute was applicable. In answer to that question this court held that the amendment was unconstitutional. Had this court been of the opinion that the statute was inapplicable, it would not have answered the question and passed on the constitutionality of the statute. This court will not answer an abstract question of law submitted in a certificate from the Court of Civil Appeals. Owens v. Tedford, 114 Texas 390, 269 S.W. 418; County Democratic Executive Committee v. Booker, 122 Texas 89, 52 S.W. 2d 908; Uvalde Rock Asphalt Co. v. Hightower, 135 Texas 410, 144 S.W. 2d 533. That rule' has very special application when the question certified is the constitutionality of a statute, for, as stated in 11 American Jurisprudence, Constitutional Law, § 93:
“One of the most firmly established doctrines in the field of constitutional law is to the effect that a court will pass upon the constitutionality of a law only when necessary to the determination upon the merits of the cause under consideration. The constitutionality of a statute will not be considered and determined by the courts as a hypothetical question, because constitutional questions are not to be dealth with abstractly or in the manner of an academic discussion.”
In deciding Culberson v. Ashford this court had before it not only the certificate from the Court of Civil Appeals stating its views on the construction of the statute, but the brief of the tenant which presented only the question of the applicability of the amendment to the money rent contract. It appears certain that this court agreed with the Court of Civil Appeals that the amendment was applicable, as otherwise it would have declined to consider the certified question. While that ruling was based upon the amendment of 1915, and not the amendment of 1931, that fact is immaterial because the language of the first part of the 1915 amendment which defines its scope and applicability is [76]*76identical with the language of the first part of the 1931 amendment.
But independent of authority we think that the staute clearly provides that the exception in paragraph two is applicable to contracts for money rent the same as in contracts for rent in kind. The first paragraph provides for a landlord’s lien on the crops grown by the tenant under a rental contract, “whether the same is to be paid in money, agricultural products or other property.” The three types of contract are grouped and placed in the same category. The next paragraph begins with this emphatic language: “This Article shall not apply in any way * * * where the landlord charges a rental of more than one-third of the value of the grain and more than one-fourth of the value of the cotton.” (Emphasis ours.) That language in our view cannot be construed to mean that this Article shall apply when rent is payable in kind, but shall not apply when it is payable in money. It must apply to all three types of contracts or to none. The use of the word “value” indicates that the Legislature more specifically referred to contracts for money rent than to contracts for rents payable in kind. This for the reason that the value cannot be ascertained until after the crops are harvested. The word “value” has no place in measuring rent payable in kind.
While we are dealing with the question of a statutory lien, in reality the question is exactly the same as if we were dealing With a contract lien, for the reason that, since the landlord did not see fit to reserve a lien in his contract, the statute is read into it, with the result that the parties contracted as follows: The landlord shall have a lien upon the cotton and grain grown upon the premises, provided the value of one-fourth the cotton and one-third the grain produced equals $3,000.00 or more, but if less than that amount, he shall have no lien. That language does not mean the same as if it provided that the landlord shall have a lien regardless of the value of the crops produced.
It is fully realized that this amendment has to do only with cotton and grain, but, if the summary judgment is to be affirmed, we must assume that only cotton and grain were cultivated on this land, for, if the amendment is not applicable, it is immaterial what was planted.
The amendment is difficult of application in many situations. It would appear that the statute would not invalidate a statutory landlord’s lien on crops other than cotton and grain, regardless of the amount of rental agreed upon, but it does not follow that [77]*77because the statute may give the landlord a lien on those crops, regardless of the amount of money rent charged, it therefore gives him a lien when the only crops produced are cotton and grain. Statutory liens are not created in that way. They must find bases in express language. If and when a case comes to this court in which a portion of the rented premises was planted in crops other than grain and cotton, we will be called upon to decide whether or not the landlord’s lien covers the whole or any part of the crops. That question can certainly not be decided in this summary proceeding.
Until the facts are developed disclosing what crops were raised on this land, and the value thereof, it is impossible to determine whether the landlord has any lien at all, and for that reason the judgments of both lower courts are reversed and the case is remanded. One half the costs of appeal are assessed against petitioners and one half against respondent.
Opinion delivered January 27, 1954.