considered as bailiffs and servants, who were to receive and account for the profits at a settled price, rather than as having any property of their own, "and therefore they were not allowed to have a freehold estate, but their interest vested after their deaths in their executors, who were to make up the accounts of their testator with the lord and other creditors. 2 Bl. Com. 149. This was the original reason for assigning to land held for years a place among chattels. It suited the convenience of the lords-the landholders-who made the laws that the estate should vest in the executors, as a chattel, and thus be subject to the debts of the testator, and not in the heir, as realty, and thus escape that charge. This also discloses the characteristic difference between chattels and lands. The former went to the executor, and the latter to the heir. See Northern Bank v. Roosa, 13 Ohio, 335.

It therefore appears that at common law a leasehold estate or estate for years was considered as an interest in real estate, but on the death of the lessee was not treated as such for the reasons above set forth. These reasons have long since ceased to exist, and, as a matter of fact, have never existed in the United States. Although oil and gas leases were unknown at common law, yet they are so analogous to leasehold estates and estates for years that the same rule, in my opinion, would be applicable, and the learned judge, in writing Duff v. Keaton, was in error when he held that a chattel real is personal property. In this event, said judgment would be a lien on the oil and gas lease involved herein.

In my opinion, however, we are not limited to the foregoing construction of the common-law rules in order to reach the conclusion that a judgment is a lien on an oil and gas lease, but our statutes and the decisions of this court are also sufficient to support this conclusion.

Section 690, Okla. Comp. Stat.

The term "real property" includes every estate, interest, and right in lands, tenements, and hereditaments. Section 2323, Okla. Comp. Stat. 1921. I do not contend, of course, that the words "land" or "real estate" or "premises" are synonymous with tenements, hereditaments, or appurtenances, but the foregoing statutes, in my opinion, clearly provide that the words "real estate" when used therein shall be equivalent to using the words "every estate, interest and right in lands, tenements and hereditaments."

By substituting this definition for the words "real estate" in § 690, supra, it would read as follows: "Judgments of courts of record of this state, except county courts, and of courts of the United States rendered within this state, shall be liens on every estate, interest, and right in lands, tenements and hereditaments of the debtor within the county in which the judgment is rendered from and after which time the judgment is entered on the judgment docket."

Is an oil and gas lease, for a term of years or as long as oil or gas

ls produced in paying quantities, such an estate, interest, and right in land, tenements, and hereditaments as to be subject to a judgment lien as provided for in § 690, supra? An examination of the statutory provisions relative to executions may throw some light on what was the intention of the lawmakers.

Section 696, Compiled Oklahoma Statutes 1921, provides: "The writ of execution against the property of the judgment debtor, . . . shall command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor.

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It is therefore apparent that our statutes relative to judgments and executions have divided all property into but two kinds or classifications, viz.: First, goods and chattels; second, lands and tenements. It will be observed that no mention is made of chattels real. Under which classification, then, would chattels real most naturally fall in the light of other statutory provisions?

Many definitions of the words "goods and chattels" are to be found, some of which include chattels real, but, as used in the foregoing statutes, we think it was intended to mean goods and chattels personal, or such property and such goods and chattels as are visible, tangible, or movable, and therefore was not intended to include an oil and gas lease estate for a term of years.

"Chattel real" is a distinct and different term from anything listed under the definition of "goods."

In 2 Words & Phrases, 1st Series, p. 1095, we find the following, which is applicable here: "In construing the term 'chattels,' in a statute relative to the recording of mortgages of negroes, goods, or chattels, as not including chattels real, the court Isaid that the word 'chattels' is 'so extensive that it may often mean chattels real or leasehold estates. But it is a sound rule of interpretation that when an author makes use, first, of terms, each evidently confined and limited to a particular class of a known species of things, and then, after such specific enumeration, subjoins a term of very extensive signification, this term, however general and comprehensive in its possible import, yet, when thus used, embraces only things ejusdem generis, that is, of the same kind or species with those comprehended by the preceding limited and confined terms. In a word, the last is restricted to the subject-matter of the preceding terms. Now the terms "negroes" and "goods" are each confined to a known class of strictly personal estate; and the term "chattels,' following them immediately, means "chattels ejusdem generis;" that is, personal chattels,"" Ex parte Leland, 10 S. C. L. 1 Nott & M'C. 460, 462.

As we have heretofore seen, an oil and gas lease is a chattel real. Blackstone defines chattels real, according to Sir Edward Coke, 1 Inst. 118, to be such as concern or savor of the realty, as terms, for years of land, and says they are called real chattels, as being interests issuing out of, or annexed to, real estate of which they have one quality, viz. immobility, which denominates them real, but want the other, viz. a sufficient legal indeterminate duration, which want it is that constitutes them chattels. 2 Bl. Com. 386. Chancellor Kent says (2 Com. 342): "Chattels real' are interests annexed to or concerning the realty, as a lease for years of land,

and the duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee in some other person."

In my opinion, an oil and gas lease or a chattel real is more nearly analogous to the second rather than the first classification of property as provided for in our statutes relative to judgments and executions as above set forth.

Numerous decisions of this court support the contention that an oil and gas lease is an interest in real estate. In Woodworth v. Franklin, 85 Okla. 27, 27 A.L.R. 590, 204 Pac. 452, in an opinion by former Chief Justice Nicholson, this court held as follows: "A contract for the sale of an oil and gas lease entered into by an alleged agent of the owner of such lease and a third person is invalid, under the statute of frauds, unless the authority of such agent to sell said lease be in writing, subscribed by such owner, and such authority must be specific and certain as to the authority conferred, the terms, description, and parties, so that such authority is disclosed by the writing itself, and recourse to parol evidence to show the intention of the parties is unnecessary."

An examination of the case discloses that there is no justification for the decision in that case, except as holding that an oil and gas lease is an interest in real estate.

In Bentley v. Zelma Oil Co. 76 Okla. 116, 184 Pac. 131, in an opinion written by Mr. Justice Harrison, this court held that the conveyance of an interest in an oil and gas lease on land is a conveyance affecting real estate within the provisions of our statutes.

The case of Rich v. Doneghey, 71 Okla. 204, 3 A.L.R. 352, 177 Pac. 86, appears to hold in effect, at least, that an oil and gas lease is a vested interest in the land.

In Nicholson Corp. v. Ferguson, 114 Okla. 16, 243 Pac. 195, this court, in an opinion by Branson, V. Ch. J., held that, although the lessee

does not own any of the oil and gas in place, he may and does, nevertheless, own an estate in the land for the purpose of entering, prospecting for, and removing the oil and gas.

In Pluto Oil & Gas Co. v. Miller, 95 Okla. 222, 219 Pac. 303, this court, speaking through Mr. Justice McNeill, held: "An oil and gas mining lease, executed by a full blood heir of a deceased Creek Indian allottee upon his inherited lands, is such a 'conveyance' of an interest in said lands as that, to be valid, the same must be approved, as required by § 9 of the Act of Congress of May 27, 1908."

To the same effect are Hoyt v. Fixico, 71 Okla. 103, 175 Pac. 517; Rich v. Doneghey, 71 Okla. 204, 3 A.L.R. 352, 177 Pac. 86; Garfield Oil Co. v. Champlin, 78 Okla. 91, 189 Pac. 514; Brunson v. Carter Oil Co. (D. C.) 259 Fed. 656.

The Supreme Court of the United States, in the case of United States v. Noble, 237 U. S. 74, 59 L. ed. 844, 35 Sup. Ct. Rep. 532, held that an assignment of rents and royalties accruing under an oil and gas lease was a conveyance of an interest in the land.

This court, in Carter Oil Co. v. Popp, 70 Okla. 232, 174 Pac. 747, held, in substance, that an oil and gas lease is such a grant of the use and occupancy of the homestead as requires the joint consent of both husband and wife.

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In First Nat. Bank v. Bennett, 40 Iowa, 537, the Supreme Court of that state had a similar question before it, and in the syllabus announced the following rule: judgment is a lien on a leasehold interest in real estate; and such lien takes precedence of subsequent conveyances or transfers of the lease by the judgment defendants."

This case is cited in the majority opinion and an attempt is made to distinguish it from the case at bar by reason of the statutory provisions of Iowa, but, in my opinion, said provisions, in effect at least,

are the same as those of this state which I have heretofore set out. The following is quoted in the body of that opinion, which discloses the statutory provisions of that state: "It will be observed that the plaintiff's judgment against C. B. Bennett was obtained in May, 1871, and that the conveyance by him to Sarah Bennett was not made until February, 1872. Under our statute then in force, Rev. 1860, §§ 41054109, as now, Code § 2882, judgments were liens upon the real estate owned by the defendant in the county where rendered or filed; and, by Rev. § 29, subd. 8, and Code, 45, subd. 8, the 'phrase "real estate" includes lands, tenements, hereditaments, and all rights thereto and interest therein, equitable as well as legal.'

The leasehold interest of C. B. Bennett in the lot whereon the improvements are situated, was such a right to it as brought the same subject to the judgment lien under our statute, as above shown. This has been, in effect, so held several times by this court heretofore. See Cook v. Dillon, 9 Iowa, 407, 74 Am. Dec. 354; Pelan v. De Bevard, 13 Iowa, 53; Baldwin v. Thompson, 15 Iowa, 504."

In Bradford v. Morrison, 10 Ariz. 214, 86 Pac. 6, the supreme court of Arizona announced the following rule: "In the absence of statute, as well as under Rev. Stat. 1887, T 2932, declaring that real property shall be coextensive with lands, tenements, and and hereditaments, an unpatented mining claim is real property, within Acts 1891, p. 70,

No. 50, § 4, declaring that a judgment, when properly docketed, shall be a lien on the real property of the debtor situate in the county."

This case appears to have been appealed to the Supreme Court of the United States. See Bradford v. Morrison, 212 U. S. 389, 53 L. ed. 564, 29 Sup. Ct. Rep. 349, wherein the rule is announced: "Unpatented lode mining claims are 'real property,' and as such are subject to the lien of a judgment recovered against their owner when docketed pursuant to Laws Ariz. 1891, Act No. 50, § 4, making a docketed judgment a lien upon the judgment debtor's real property, the term being defined by a territorial statute in force when the judgment in question was rendered and docketed as coextensive with lands, tenements, and hereditaments."

Taking the foregoing decisions. and considering the general nature and meaning of the statutory provisions heretofore quoted, I am forced to the conclusion that, although an oil and gas lease may not be a freehold estate, yet it is such an interest in real estate as defined by our statutes above set forth as to be included within the words "real property" as used in § 690, supra. In that event, the lien of the judgment involved in the instant case had attached and existed at the time said conveyance was made by E. Dunlap to the Turman Oil Company, and therefore, in my opinion, was subject to the judgment lien of the First National Bank of Healdton.

A mining right may be separated from the surface, which may be held by one person and the mining right by another. 18 R. C. L. 1174.

After an extensive examination of

the authorities, only three cases have been found, other than the reported case (FIRST NAT. BANK v. DUNLAP, ante, 126) dealing with the subject under annotation as to whether the

separate interest is subject to the lien of a judgment as real estate.

In the reported case (FIRST NAT. BANK V. DUNLAP) it is held that while an oil and gas lease which "grants, leases, and lets" certain land for oil and gas mining purposes creates and conveys to the lessee an interest or an estate in the realty described therein, yet such interest is not real estate, within the meaning of the state statute giving a judgment creditor a lien upon the "real estate" belonging to the judgment debtor.

And in Beren v. Marshall Oil & Gas Corp. (1926) 122 Kan. 134, 251 Pac. 192, it was held that a state statute making a judgment a lien on the real estate of the debtor within the county does not apply to an ordinary oil and gas lease, which is an incorporeal hereditament and that therefore one having a personal judgment was not entitled to priority over subsequent intervening judgment creditors of the owner of the mineral interest.

But in Bradford v. Morrison (1909) 212 U. S. 389, 53 L. ed. 564, 29 Sup. Ct. Rep. 349, it was held that unpatented lode mining claims are "real property," and as such are subject to the lien of a judgment recovered against their owner when docketed pursuant to a territorial statute, making a docketed judgment a lien upon the judgment

debtor's real property, the term being defined by another territorial statute in force when the judgment in question was rendered and docketed, as coextensive with lands, tenements, and hereditaments.

And in Butte Hardware Co. V. Frank (1901) 25 Mont. 344, 65 Pac. 1, 21 Mor. Min. Rep. 368, it was held that, under a state statute providing that a judgment becomes a lien upon all the real property from the time of the docketing thereof, the lien of a judgment attaches to an unpatented mining claim. The court said: "Is an unpatented mining claim real property of the owner? This question must be answered in the affirmative. There is no need to argue this point, as it seems to be settled by authority that unpatented mining claims are real estate.