Moreover, it is clear that the evidence would support a finding under the laws of both Texas and Oklahoma that the transactions constituted mortgages. See especially Carter v. Sapulpa I. Ry. Co., 49 Okla. 471, 153 P. 853 (1915); 46 Okla.Stat.Ann. § 1; 42 Okla.Stat.Ann. § 6; Kennard v. Mabry, 78 Tex. 151, 14 S.W. 272 (1890); Long v. Fields, 31 Tex. Civ. App. 241, 71 S.W. 774 (1903); Hamilton v. Green, 101 S.W. 280 (Civ.App. Tex. 1907). Leaving aside the troublesome problem of labeling the interest of an oil and gas lessee under Oklahoma law, it is settled that a mortgage of such an interest must be recorded in Oklahoma as a real estate mortgage and that if it is not so recorded, it has the status only of an unrecorded mortgage.
The Oklahoma Supreme Court, in an elaborate opinion, has followed this general rule. Carter v. Sapulpa I.R. Co., 49 Okla. 471, 153 P. 853, 855. The errors assigned are without merit.
This he is entitled to do, and he has followed the proper procedure. Carter v. Sapulpa I. Ry. Co., 49 Okla. 471, 153 P. 853. The rule is there stated as follows:
This rule has been adopted in this state. Mullens v. Geo. C. Wright Lbr. Co., 182 Okla. 355, 77 P.2d 700; Kelsay v. Kelsay Land Co., 64 Okla. 291, 166 P. 173; Carter v. Sapulpa I. Ry. Co., 49 Okla. 471, 153 P. 853. See, also, Ketchum v. St. Louis, 101 U.S. 306; Walker v. Brown, 165 U.S. 654, 17 S.Ct. 453; Valley State Bank v. Dean, 97 Colo. 151, 47 P.2d 924; Farmers' State Bank of Cunningham v. St. Aubyn, 120 Kan. 66, 242 P. 466. We think the evidence of defendant was sufficient to invoke the application of this rule by the trial court, and to justify a finding that her aunt had created a lien for her security on the land in question.
No amendments, however, appear to have been made to the original petition. In the record in case No. 6436, S.E. Carter, Plaintiff in Error, v. Sapulpa Interurban Railway Co. et al., post, 153 P. 853, in this court, there is an instrument that purports to be a deed of trust by the railway company to the Fidelity Trust Company, dated December 1, 1908, and which includes not only all of the property owned by said railway company on said date, but all that which might thereafter be constructed or acquired by it. There is no proof that this instrument was ever delivered, and it does not appear ever to have been filed or recorded. In the same record is found a supplemental deed of trust, which purports to have been given by said railway company to said trust company, and is dated December 28, 1911, and which instrument further purports to have been recorded in the office of register of deeds of Creek county on February 1, 1912. Notwithstanding no amendment appears to have been made to plaintiff's petition, although permitted to be done, the defendants General Electric Company and State of Oklahoma, on October 31, 1913, filed their answer to the amendment to the petition, and on the sa