majority">Riddick, J.,

(after stating the facts.) This action was brought by a constable, who had attached cotton, against a mercantile firm to whom, by consent of the parties, he had delivered it for sale, to recover the proceeds of the cotton. The plaintiff in the attachment suit was a laborer who claimed a lien on the cotton. While the action is brought in the name of the constable, it is for the use and benefit of the laborer, and the action is, in effect, a contest between a laborer who claims-a lien on cotton for the price of his labor in producing it and a firm of merchants who claim a lien thereon by virtue of a mortgage for supplies furnished the owner of the crop.

In the first place, we are of the opinion that the act of March 11, 1895, did not change the law, so far as such a laborer’is concerned. The prior act of July 23, 1868, gave laborers a lien on the production of their labor. The act of 1895 extended this law so as to give laborers who perform work on any object or thing a lien thereon for the price of their labor, whether their labor produced the thing upon which the labor is expended or not. When the work of the laborer does not produce the thing upon which he labors, he takes a lien, but it is subject to prior liens. But when the labor fo.r which a lien is claimed produces the thing upon which a lien is claimed, then no lien can, under the statute', be prior to that. No lien upon a crop can be prior to that which the statute gives the laborer who prepares the ground, plants and produces the crop, for his lien attaches as soon as the crop comes into existence, which is as soon as any lien can attach. The lien of a mortgagee does not attach to a crop until it is produced, and therefore cannot be prior to the lien which the statute gives the laborer who produces it. The lien of the landlord for his rent is by the statute made superior to that of the laborer. But, in order to make this mortgage a superior lien to that of the laborer who produced the crop, it would, under any view of the statute, be necessary to show that it was a prior lien, which, as we have shown, cannot be done. The court, we think, properly held that the-lien of this laborer was superior to that of the mortgagee who furnished the supplies to raise the-crop.

Again, the facts here do not show that the defendant was a bona fide purchaser without notice. One who takes a mortgage on a crop to be thereafter produced must know that it requires labor to produce it, and, under the statute, laborers have liens for their work. He, therefore, takes his mortgage with notice of such liens, and subject thereto, especially when, as in this case, the contract made by the owner of the crop with the laborer, and the commencement of his labor, were prior to the execution of the mortgage.

Of course, if appellant had subsequently bought and paid for this cotton without notice of such lien, it would be protected; but it paid nothing out on the purchase of the cotton. Only two loads were delivered to it before the attachment was levied, and it admits that it credited the price of that on a past due account. This was not sufficient to make defendant a bona fide purchaser of the two loads. The laborer then had a lien for his wages on all the cotton delivered to defendant, subject to the lien of the landlord foi rents, and we think the evidence justified the jury in finding that, under the agreement .with the plaintiff, defendant had the right to retain only that portion of the proceeds of the cotton required to pay the balance due on the rent note, and for picking, after applying the proceeds of the two loads of cotton which defendant received before the attachment. That question was submitted to the jury, and was found against defendant, and we find no error in the instructions that would justify a reversal. While these instructions are not quite so clear as they might have been, we think that those asked by defendant were, under the facts proved, erroneous and misleading, and were properly refused. On the whole case, we think the judgment should be affirmed, and is so ordered.

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