Minor v. Marshall

Seeds, J. This is a suit in equity brought to foreclose a number of liens filed against the ‘ ‘Humming Bird” mine, in the county of Sierra, as allowable under section 1532 of the Compiled Laws of 1884 of this territory. To the bill there was interposed a demurrer, which was sustained by the lower court and the bill dismissed. The plaintiffs assigned various grounds of error growing out of the sustaining the demurrer. It might be stated here that it would be a better practice for the trial judge, in passing upon a demurrer which is predicated upon various grounds, to specifically state and have it made a matter of record upon which grounds, if less than all, he bases his judgment; for it may be that his judgment was based solely upon one ground, while the record necessarily brings up all the grounds formally alleged in the pleading, and requires a decision upon points which may not be decisive of the case — being harmless error, and really in accordance with the judge’s holding; yet the announcement here, though in fact the same as in the court below, would seem to be against him. The material points to be considered, under the assignment of errors, are: First, were the notices of the claims for the liens, filed by the plaintiffs, insufficient because they alleged that the defendant “was the owner, or reputed owner,” of the mine against which the liens were sought to be established; and, second, •were the notices of the claims invalid because said claims were not properly verified? Mechanics* lien: sufficiency of notice* The appellants contend, in the first place, that, as the bill sets out the action properly, the demurrer admits the facts thus pleaded to be true, . , . and, thereiore, it was error to sustain the demurrer. But this contention must be based upon the supposition that the facts pleaded were well pleaded, and were not conclusions of law. Now, •one of the material facts in the ease is, were the legal notices of claim given in accordance with the statute? If they were not, the case must fail. If, too, that fact was so pleaded, as that the notices appear in the bill, and their illegality is seen upon the face of the pleading, then certainly that fact can be reached by demurrer. The notices of claims were all made parts of the bill as exhibits, and as parts of the allegations of the facts required. This being true, the demurrer was the proper pleading by which to raise the question of their sufficiency. As a predicate for the discussion of the errors raised by this record, it is insisted by the appellants, and denied by the appellee, that the mechanics’ lien law should be liberally construed. Each party contends vigorously that his exposition of that issue is supported by the adjudications of this court. It must be conceded that in some way two cases, delivered at the same term of this court, have in their opinions statements which are diametrically opposed to each other. In the case of Hobbs v. Spiegelberg, 3 N. M. 362, Judge Axtell says: “We fail to see how this statute is in derogation of the common law;” and, “Nor do we think that the doctrine of liens is either new, in derogation of the common law, or inequitable.” A careful consideration of this case will convince one that these remarks were wholly unnecessary to a determination of the case, and hence could not be enunciating a principle to bind the court unless reversed. The fact is that the doctrine of “in derogation of the common law” is invoked simply to uphold a strict construction in a given case when the facts call for a construction; but Judge Axtell in this very case, when making the statements above quoted, continuing said: “Nor is it possible for us to see any necessity for construction.” This case is, then, no authority upon the question as to how the mechanics’ lien law should be construed. In the case of Finane v. Las Vegas Hotel & Imp. Co., 3 N. M. 415, however, the court undertook specifically to place a construction upon a portion of the statute in regard to the verification of the claim, and in passing upon the principle to govern in the construction of the whole statute Judge Bell says: “The rights conferred by these statutes are purely statutory, and were utterly unknown to the common law or in chancery. They are in violent derogation of the rights of property at the common law, and must be strictly construed.” This enunciation of the principle governing in such cases does not conflict with the holding in the case of Hobbs v. Spiegelberg, but only with language not necessary to the case, and hence must be accepted by us, unless we are ready to overrule it. The statement that mechanics’ lien laws are in derogation of the common law can hardly be successfully controverted; for they place liens upon property which before and under the common law had been sacredly protected against any but those of a mortgage of a judgment. More, they render it possible to incumber an estate, even against the knowledge, and, in any ease, against the wish, of the owner. Phil. Mech. Liens, sec. 9. But by “strict construction” it is not meant an arbitrary, inequitable, or harsh construction — one which will give the property owner; or even third parties, the opportunity to take advantage of technicalities to deprive an honest laborer of his wages — but such a construction as will require a substantial compliance with the statute; sucha one as, while it protects the honest laborer, can not be made the means by a loose and uncertain construction of perpetrating fraud, or of holding out inducements thereto. Hooper v. Flood, 54 Cal. 218. A strict construction is fully met which simply requires the laborer to bring himself by his notice clearly within the provisions of the statute; and when this is done the construction is the one adopted by the supreme court of the United States. Davis v. Alvord, 94 U. S. 545. The terms “strict” and “liberal” are comparative simply, and in most of the eases are used without definition. They are only used in the light of the facts of each specific case. Such an interpretation as will demand a substantial compliance with all the requirements of the law will be sufficient. With this character of a construction we are satisfied that the rights of all parties will be protected. 1. Were, then, the notices of claim of liens insufficient, because they alleged that the defendant “was the owner or reputed owner” of the mine in question? The argument is that the law requires a distinct statement of who the owner or reputed owner is, and that the proof must meet that single specific allegation; that in this case the allegation is in the disjunctive, the allegation being one or the other, and therefore it is erroneous. Does this statement in any way mislead the persons for' whom the notices are intended? The object of the statute is to give the laborer a lien for his wages upon the property, as against the owner or reputed owner. It makes no difference which the party is; in either case the laborer is entitled to the lien providing he states, with other things, who the owner or reputed owner is, if he knows. He may be uncertain whether the party is the owner or reputed owner. If, then, in his notice, he says to the world that a certain person is the owner or reputed owner, no one is damaged; and if, upon foreclosure proceedings, he proves either allegation, he certainly substantiates his claim upon that point. In the case of Arata v. Tilluirium G. &. S. Mfg. Co., 65 Cal. 340, the court held the allegation of “owner and reputed owner” a substantial compliance with the law, for the party could have been both. So, in this ease, he can be either, and, if so, the requirement of the statute has been met. If, then, the learned judge passed upon this point adversely to the plaintiffs in the court below, as it must be presumed he did, from the form of the record, it was error. But, .in any view of the case as here presented, it was a harmless error. verification of noiice. 2. Were the notices of claim of liens properly verified? The verification was substantially the same as to each claim. The claims themselves set out fully what the statute requires, and in all but one case were signed by the party asking the lien. To the notices were attached affidavits, 'also signed by the parties, and sworn to before a notary. Those affidavits necessarily refer to the claims to which they are attached. Do they substantially verify the claim? The following'is one of the affidavits: “On this * • * * personally appeared * * * before me, and who, being by me first duly sworn, on his oath states that the abstract of indebtedness mentioned and described in the foregoing notice is true and correct,, and that there is still due and owing and unpaid to him from the said * * * mine and its owner the sum,” etc. Section 1524, Compiled Laws, 1884, states what the claim should be, and what should be verified. A part of the section is as follows: “A claim containing a statement of his demands, after deducting all just credit and offset, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given, and condition of his contract, and also a description of the property to be charged, which claim must be verified by the oath of himself, or of some other person.” It is very evident that the claim contains certain specific statements, — five in number,— any one of which being absent annihilates the claim of lien. Phil. Mech. Liens, sec. 342. It is also plain that the claim — not any one or more averments of the claim less than all, but the claim itself — must be verified; and, if such claim is not verified, it is- no notice, and binds no one; it raises no lien whatever. Finane v. Las Vegas Hotel & Imp. Co., 3 N. M. 415. This verification need not be in the exact language of the statute; for, if it substantially meets the requirements of the statute, it is all that is necessary. But substantial compliance is not met when the verification does not cover all the essential elements of the claim; or when, under the guise of substantial compliance, the court must add something to the affidavit or oath by intendment in order that the statute may be complied with. It is not necessary in this territory that there should be an affidavit- to the claim. It is sufficient if the claim is signed by the party, and that the notary or other proper officer, under his signature and seal, says that it is sworn to by the person signing it. But the want of a verification, or of a sufficient verification, is a defect which goes to the whole claim, and can not be amended. Phil. Mech. Liens, sec. 366. It is fatal, though the party actually swear to the claim, if the notary has neglected to sign the verification or attach his seal. Finane v. Las Vegas Hotel & Imp. Co., supra. While it was not necessary for the claimant to make an affidavit, he has done so, and in it he has specifically stated what he has sworn to, and by that he is bound. He swears “that the abstract of indebtedness mentioned and described in the foregoing notice is true and correct.” Can this, in substance, mean the whole claim above set out? It is contended that the words “abstract of indebtedness” are intended to mean the whole claim, and that we should so interpret it. But in the claims themselves there is a specific statement of a moneyed indebtedness, placed in a brief form, as the law requires. To that brief statement of indebtedness the affidavit naturally relates. Are we justified, in order to sustain the lien, to suppose that it ■ means more than it says? We do not hold that the verification should be the language of the statute, or that it should necessarily use the term “claim.” Any set of words unmistakably pointing to the whole claim will be sufficient. If the affidavit had said the “above abstract,” as it might fully cover the claim without great violence to the language, it might have been sufficient. The claimant was not satisfied with that, but limited its application by the use of the qualifying words, “of indebtedness.” The word “abstract,” standing alone, would have a general or indefinite meaning, but in this ease it is immediately limited when the words “of indebtedness” are added to the single thought of owing money. The statute says he must give a statement “of his demands after deducting all just credit and offset.” That is a statement of the indebtedness; but there are four other essentials of the claim, all of which must be verified, or the lien is not perfected. In this case the indebtedness is all that is verified. The only apparent answer to this line of argument is to contend that there is no indebtedness unless all the five essentials of the notice are present; that indebtedness is only a fact when it grows out of the presence of the five requirements, of the statute constituting a good notice. But this is palpably fallacious, for this reason; the indebtedness is a personal claim independent of the lien. Can it be said that this defendant could not have been indebted to these plaintiffs unless he had been the owner or reputed owner of the mine? Certainly not. He might have been a contractor, as in the Las Yegas Hotel case, in which he would have been indebted to the plaintiffs for working for him in the mine, yet it would not have been necessary to have alleged that he was the owner or reputed owner to sustain the indebtedness. The plaintiffs could have sworn that “the above abstract of indebtedness was just and true,” and have had no reference to the ownership or to the terms of the contract, and yet his verification be absolutely truthful. Will it be contended that there could not have been an indebtedness in this case if the claimant had neglected to have described the property or have given the terms of the contract? Certainly not. Yet would not the affidavit have referred in that case specifically to the “abstract of indebtedness,” etc.? If it would, how can it be said in this case to cover more than in the case supposed? It should be remembered that the rule of construction, whether strict or liberal, has reference, to the language of the statute, not to that used in compliance with the statute. The question here is, not what construction shall be given to the words “abstract of indebtedness,” but to the word “verification,” as used in the statute. We said that the word “verification” in the statute does not require an affidavit; it does not require the signature of the party to the affidavit; it does not require the word “claim” to be used; but it does require that the officer who certifies to the oath should sign the same, and attach his seal thereto; it does require the use of such plain and unmistakable language that there can be no reasonable doubt but that hé is swearing to the whole claim. There can be no injustice to any one in thus holding, while any other holding would' be fruitful of unnecessary litigation. If any use of language might meet the requirements of a verification, then there is no possible rule by which to determine what that language should be, except the opinion of the judge in any given case. And no one would ever be certain that the verification was proper unless the case was' taken to the court of last resort. Language should be used in every case which, without labored argument or intendment, will cover the whóle requirement of a verification; and such language as will the more readily and naturally apply to a part only of the requirements of the verification ought not to be made by intendment to cover more than in sound logic it is able to do. The verifications to these claims being imperfect, the judgment of the lower court was correct, and will accordingly be affirmed. O’Beien, O. J., and Lee, J., concur. McFie, J., did not sit in this case.