e lien as security for only a valid contractual claim. Phillips on Mechanics' Liens, (3d Ed.) 57, § 38; McCarty v. Carter, 49 Ill. 53 (95 Am. Dec. 572); Alvey v. Reed, Guardian, 115 Ind. 148 ( 17 N.E. 265, 7 Am. St. Rep. 418); Bloomer v. Nolan, 36 Neb. 51 ( 53 N.W. 1039, 38 Am. St. Rep. 690); Hall v. Acken, 47 N.J. Law (18 Vroom) 340; Richardson v. O'Connell, 88 Mo. App. 12; San Francisco Paving Co. v. Fairfield, 134 Cal. 220 ( 66 P. 255); Waldermeyer v. Loebig, 183 Mo. 363 ( 81 S.W. 904); DeRanko v. Lee, (Mo.App.) 200 S.W. 79; Lepage v. Laux, (Mo.App.) 211 S.W. 898; Lee v. Tonsor, 62 Okla. 14 ( 161 P. 804); Granquist v. Western Tube Co., 240 Ill. 132 ( 88 N.E. 468); Rittenhouse Embree Co. v. Warren Const. Co., 264 Ill. 619 ( 106 N.E. 466); Meade Plumbing, Heating Lighting Co. v. Irwin, 77 Neb. 385 ( 109 N.W. 391); Eccles Lumber Co. v. Martin, 31 Utah 241 ( 87 P. 713); Virginia Supply Co. v. Calfee, 71 W. Va. 300 ( 76 S.E. 669); J.W. White Co. v. Griffith, 127 Me. 516 ( 145 A. 134); T.J. Stewart Lumber Co. v. Derry, 122 Okla. 208 ( 253 P. 485); Littler v. Friend, 167 Ind. 36 ( 78 N.E. 238); Wager v. Briscoe, 38 Mich. 587; Dressel v. French, 7 How. Pr. 350; Muldoon v. Pitt, 54 N.Y. 269; Nicholson v. Nichols, 115 N.C. 200 ( 20 S.E. 294); Sellwood Lumber Co. v. Monnell, 26 Or. 267 ( 38 P. 66). In the absence of emancipation, plaintiff was without contractual capacity with respect to his services during infancy.
Where a materialman seeks to assert a lien for material furnished to a lessee under an oral contract with such lessee, and it fails to appear that the lessee was constituted by the landowner as his agent to purchase the material, the lien of the materialman can extend no further than the improvements constructed out of the material furnished." T. J. Stewart Lbr. Co. v. Derry, 122 Okla. 208, 253 P. 485. Commissioners, Opinion, Division No. 2.
We follow the opinion in that case covering the questions here involved. To the same effect are the following cases: Antrim Lumber Co. v. Mendlik, 110 Okla. 76, 226 P. 422; Aldridge v. Johnson, 132 Okla. 257, 270 P. 322; Cahill-Swift Mfg. Co. v. Sayer, 72 Okla. 88, 178 P. 671; Stewart Lumber Co. v. Derry, 122 Okla. 208, 253 P. 485. The above disposes of the contention of agency.
42 O.S. 1941 § 94[ 42-94]. T.J. Stewart Lbr. Co. v. Derry, 122 Okla. 208, 253 P. 485. An equitable lien is entirely different and not dependent upon either right granted (ad rem) or statute granting the right (in re) or possession of it. Re Interborough Consol. Corp., 288 F. 334, 32 A.L.R. 932, writ denied 262 U.S. 752, 67 L.Ed. 1215; Jones v. Carpenter, 90 Fla. 407 106 So. 127, 43 A.L.R. 1409.
Red's allegation and proof that his original or first contract with Lewis was oral is legally sufficient. T. J. Stewart Lumber Co. v. Derry, 122 Okla. 208, 253 P. 485. 42 O. S. 1941 § 141 expressly authorized oral contracts as well as written as the basis for such liens.
" It has been the uniform holding of this court that by virtue of section 11011, O. S. 1931, a laborer's lien takes precedence over all other liens, whether created prior or subsequent to the laborer's lien. T. J. Stewart Lumber Co. v. Derry, 122 Okla. 208, 253 P. 485; McGuyre v. Duncan, 100 Okla. 217, 229 P. 199; Morley v. McCaskey, 134 Okla. 50, 270 P. 1107. By the express provisions of section 11016, supra, the assignee of a laborer's lien claim acquires all the rights of the person who performed the labor.
aining a provision that the lessee "is to take the premises above described and is to make all necessary repairs and alternations as is necessary to meet his convenience, and is to build the house on lot 5 back until it is the same length as the one on lot 6, and it is further understood and agreed that the party of the second part is to leave all this repair and work at the time of the termination of his tenancy," a materialman furnishing material to the lessee to be used by him in making such improvements is not entitled to a lien on the premises of the owner under and by virtue of section 3864, Rev. Laws 1910, where the lessee fails to pay a balance due the materialman for such material, the owner not being indebted at any time to the lessee for the making of such improvements.' "To the same effect are the following cases: Antrim Lumber Co. v. Mendlik, 110 Okla. 76, 236 P. 422; Aldridge v. Johnson, 132 Okla. 257, 270 P. 322; Cahill-Swift Mfg. Co. v. Sayer, 72 Okla. 88, 178 P. 671; Stewart Lbr. Co. v. Derry, 122 Okla. 208, 253 P. 485. In all of these cases it is held that a lease contract authorizing the tenant to make improvements for his use, benefit, and convenience does not create an agency between landlord and tenant so as to render the interest of the owner liable to materialmen's liens where the contract for purchasing material was made with the tenant even though the contract provides that the improvements shall revert to the owner upon termination of the lease.
" To the same effect are the following cases: Antrim Lbr. Co. v. Mendlik. 110 Okla. 76, 226 P. 422; Aldridge v. Johnson. 132 Okla. 257, 270 P. 322: Cahill-Swift Mfg. Co. v. Sayer, 72 Okla. 88, 178 P. 671; Stewart Lbr. Co. v. Derry, 122 Okla. 208, 253 P. 485. In all of these cases it is held that a lease contract authorizing the tenant to make improvements for his use, benefit, and convenience does not create an agency between landlord and tenant so as to render the interest of the owner liable to materialman's liens where the contract for purchasing material was made with the tenant even though the contract provides that the improvements shall revert to the owner upon termination of the lease.
The trial court, however, erred in decreeing said laborers' liens, to be prior to said mortgage lien as to the real estate. Section 7468, supra; Basham et al. v. Goodholm Sparrow Investment Co., 52 Okla. 536, 152 P. 416; Stewart Lumber Co. v. Derry, 122 Okla. 208, 253 P. 485. Counsel next urge that the trial court erred in decreeing the liens of defendants in error for material to be on a parity with that portion of the indebtedness due plaintiff in error representing the $500 and interest thereon, advanced by the plaintiff in error for payment of labor on said premises.
This seems to be the unanimous holding of our court as well as many other courts. Lee v. Tonsor, 62 Okla. 14, 161 P. 804; Gentry-Bowers Lbr. Co. v. Hamill, 75 Okla. 210, 182 P. 687; Mobley v. Leeper Bros. Lbr. Co., 89 Okla. 95, 214 P. 174; Stewart Lbr. Co. v. Derry, 122 Okla. 208, 253 P. 485; Preuit v. Lail, 116 Okla. 184, 243 P. 927. Although the material and labor may have been furnished with the knowledge of the owner, it is not sufficient to establish a lien upon the owner's interest, although made with one in possession under a contract of sale. Gentry-Bowers Lbr. Co. v. Hamill, supra; Antrim Lbr. Co. v. Mendlik, 110 Okla. 76; 236 P. 422; Hoggson Bros. v. Dickason-Goodman Lbr. Co., 81 Okla. 31, 196 P. 686.