PHOENIX MUTUAL LIFE INSURANCE COMPANY, а corporation, Moramerica Mortgage Company, a corporation; and GSMI, Inc., a corporation, Appellants, v. Frances E. HARDEN, also known аs Francis E. Harden, James D. Harden and David W. Harden, Trustees of the John J. Harden Trust, Frances E. Harden, James D. Harden, David W. Harden and John E. Harden, Individually as beneficiaries of thе John J. Harden Trust, Phil E. Daugherty and Katherine Daugherty, husband and wife, if living, or if any of said persons be Deceased, then their unknown successors, Appellees.
No. 49817.
Supreme Court of Oklahoma.
June 19, 1979.
596 P.2d 888
Since the term for which Jones was appointed was to commence on Jаnuary 1, 1979, he would be entitled to office as of the beginning of that day regardless of the date set forth on the written evidence of the appointment since his aрpointment was valid in all other respects. We conclude that on January 1, Jones became a de facto member of the Board of Equalization and that respondеnt therefore could not assume a de facto position with the Board of Equalization because no vacancy existed. Neither appointee became qualified to hold the office in all respects so as to be a de jure officer until March 6, 1979. Again, the Tax Commission appointee became the first de jure officer, which left no vacancy to be filled by the County Commissioners from District No. 3.
We therefore hold Jones was entitled to possession of the office as of the first Monday in January, 1979, аnd that he became qualified in all respects to enter upon the duties of the office as of March 6, 1979 at the hour of 3:56 p. m.
Petitioner‘s request of this Court a ruling on whеther or not Jones is entitled to back pay for Board of Equalization meetings he has attended, but not participated therein. Because this issue presents еvidentiary questions, we decline to rule on this issue at this time.
TITLE TO OFFICE SETTLED IN PETITIONER‘S APPOINTEE.
LAVENDER, C. J., IRWIN, V. C. J., and WILLIAMS, HODGES, BARNES, DOOLIN and HARGRAVE, JJ., concur.
OPALA, J., disqualified.
Ames, Daugherty, Black, Ashabranner, Rogers & Fowler, Oklahoma City, for appellees.
DOOLIN, Justice:
This appeal involves the question of the propriety of a claim by appellee landowners for a lien for ground rent in a foreclosure action on their own property.
Landowners owned the fee in certain undeveloped real estate in Oklahoma City. Glenbrook Centre, Inc. desired to develop the property into an office building. Landowners leased the property to Glenbrook and then joined with it in mortgaging the property to finance construction. The lease provided for monthly rental payments to landowners once the proposed construction was completed.
Construction was completed but problems developed. Little rent was paid and Glenbrook defaulted on its mortgages. One mortgagee, Phoenix Mutual Life Insurance Company, commenced foreclosure proceedings against Glenbrook and landowners, joining two junior mоrtgage holders and other lien claimants as defendants. Later a receiver was appointed to conserve and protect the mortgaged prоperty. The receiver collected rents and paid the upkeep but did not pay the landowners any rent.1 In the foreclosure action landowners crоss-petitioned against mortgagees for back rent due. Trial court entered judgment in favor of mortgagees ordering foreclosure. It granted judgment and a lien to lаndowners for delinquent ground rent against Glenbrook, making mortgage subject to this lien
Mortgagees argue landowners have no right to a lien for past due ground rent either at law or in equity.3 They point out that in event of a tenant‘s failure to pay rent, the proper remedy for a landlord is to obtain a judgment against the tenant for the unpaid rent. This judgment then could be basis for a judgment lien against lessee‘s property.
Landowners, on the other hand, point to no case law allowing such a lien for past due rent. They primarily argue they are sureties only and mortgagees have no right to pursue their property until other property pledged by Glenbrook is first aрplied to satisfy the debt.4 Although evidence indicates landowners signed not in the capacity of sureties but as principal mortgagors this is not determinative of this aрpeal.
In order for mortgage to be subordinate to landowners claim, the latter would have to be a lien, first in time.5 Although lien laws will be liberally construed, courts cаnnot create a lien neither provided for by law nor created by contract.6 Intention to create a lien on property must clearly appear from the language of some instrument and attendant circumstances. Strict proof of intention is required.7 Although an action in foreclosure is an equitable prоceeding, the trial court may not impose a lien merely from a sense of justice in a particular case.8
Further landowners owned the mortgaged property. An owner cannot have a lien on his own property. Ownership and a lien are inconsistent interests as the lien merges into the greater estate.9
The trial court‘s order gave landowners a judgment for the past due rent. Assuming such judgment is a valid claim against Glenbrook‘s funds in the hands of the receiver, landowners held no lien on the subjеct property prior to this judgment. Generally no lien arises in favor of a landlord against real property by reason of the landlord tenant relationship.10 Cеrtainly such a lien does not arise against a mortgagee‘s interest.
We hold there was no lien in favor of landowners prior to the present judgment. Therefore triаl court erred in holding mortgagees’ judgment was subject to landowners’ rent claim.
Owners have a valid claim for back rent from receiver under this judgment. This is the receiver‘s obligation, not mortgagees. We reverse only that portion of the order finding mortgagees’ lien to be subordinate to landowners’ lien for back rent. Any interest owners have in the subject property is junior to mortgage of appellants.
REVERSED IN PART AND REMANDED with directions to vacate that portion of the order finding landowners have a first lien on the subject property prior to that of appellants.
LAVENDER, C. J., IRWIN, V. C. J., and WILLIAMS, HODGES, BARNES, SIMMS and HARGRAVE, JJ., concur.
OPALA, J., concurring specially.
OPALA, Justice, concurring specially:
The entire net balance of the receiver‘s funds stands, in my view, impressed with
By signing the mortgage instrument that pledged the rents and profits as additional security for Glenbrook‘s obligation, the owners did in fact and in law subordinate all of their rent claims to the liеn of the mortgage. Their subordination gives Phoenix, qua mortgagee, a prior lien as to all rent legally reachable for collection by, and in the hands of, the receiver. Rives v. Mincks Hotel Co., 167 Okl. 500, 30 P.2d 911, 914 [1934].
The record discloses no attempt was made below to require that the mortgagee resort first to the property of Glenbroоk, the principal obligor, before reaching the land of the surety.
As far as I can divine, the owners invoked neither the suretyship marshaling principle [