199 Kan. 366 (1967) | Cited 20 times | Supreme Court of Kansas | July 12, 1967

The opinion of the court was delivered by

At issue is the validity of a subcontractor's mechanic's lienstatement for materials supplied in the erection of a certainbuilding, and whether the statement may be amended pursuant toK.S.A. 60-1105 (b) to supply a verification.

The defendants, Norman J. Karlin and Lucille Karlin, are theowners of the real property on which the building was erected.Joe Hish, the defendant-contractor, entered into a contract withthe Karlins to erect the building. The plaintiff, D.J. FairLumber Co., was the subcontractor which furnished the materialsin the erection of the building.

On February 26, 1965, the plaintiff filed a statementpurporting to be a mechanic's lien with the clerk of the districtcourt, which was signed and acknowledged as follows: "WITNESS THE HAND of said, The D.J. Fair Lumber Company, the subcontractor and claimant, this 25th day of February, 1965. "THE D.J. FAIR LUMBER COMPANY "By D.J. Fair President "ATTEST: "M.P. Fair "Secretary "STATE OF KANSAS, COUNTY OF RENO, ss:

"BE IT REMEMBERED, That on this 26th day of February, 1965, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came D.J. Fair, President of the D.J. Fair Lumber Company, a corporation duly organized, incorporated and existing under and by virtue of the laws of Kansas, and M.P. Fair, secretary of said corporation who are personally known to me to be such officers, and who are personally known to me to be the same persons who executed, as such officers, the within instrument of writing on behalf of said corporation, and such persons duly acknowledged the execution of the same to be the act and deed of said corporation.

[199 Kan. 368]

"IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Notarial Seal, the day and year last above written. R.C. Wyatt Notary Public "My Commission Expires: August 25, 1968 "R.C. WYATT — NOTARY PUBLIC."

The parties concede the lien statement was filed in therequisite statutory time; that the plaintiff mailed a copy of thelien statement to the defendants Karlin by certified mail, returnreceipt requested; that the description of the real property uponwhich the lien was claimed was properly described in the lienstatement and in the petition seeking foreclosure; that theaccount was properly attached, and that the plaintiff did under asubcontract with Joe Hish furnish materials which were deliveredupon the premises and actually used thereon in the constructionof the building.

On February 25, 1966, the plaintiff filed its petition toforeclose the mechanic's lien. In preparing its petition theplaintiff apparently noted Reeves v. Kansas Coop. Wheat Mk'tAss'n, 136 Kan. 306, 15 P.2d 446, where it was held that a lienstatement which was "acknowledged" instead of "verified" wasinvalid, and Ekstrom United Supply Co. v. Ash Grove Lime &Portland Cement Co., 194 Kan. 634, 400 P.2d 707, which held thatthe failure of a subcontractor to verify its lien statementpursuant to G.S. 1961 Supp. 60-1403, was fatal to recovery, sinceparagraph 7 of the petition states: "That in the event the court finds that the materialmen's lien attached hereto was not properly verified, the Plaintiff requests authority to amend said lien in accordance with K.S.A. 60-1105 (b) so that the materialmen's lien will conform to the requirements of K.S.A. 60-1102 and K.S.A. 60-1103."

On March 3, 1966, the defendants Karlin filed their motion todismiss the plaintiff's action for the reason the petition andexhibits showed affirmatively upon their face the lien statementin question contained no verification whatsoever but was"acknowledged" in lieu thereof, which rendered the statementfatally defective and not subject to amendment.

In a memorandum opinion the district court concluded that,lacking verification, the lien statement was vitally defective,and not being corrected within the statutory period for obtaininga lien, the defect went to the whole of the claim and thestatement could not be amended pursuant to K.S.A. 60-1105 (b).It sustained

[199 Kan. 369]

     the Karlins' motion to dismiss, being of the opinion thesubcontractor was not entitled to a personal judgment against theproperty owners.

The plaintiff concedes the lien statement was not "verified"but instead was only "acknowledged," and limits its argument towhether the district court erred in refusing to permit theplaintiff to amend the lien statement pursuant to K.S.A. 60-1105(b) by properly verifying it to conform with K.S.A. 60-1102 and60-1103.

Was the lien statement subject to amendment by permitting theplaintiff to verify it one day less than one year after it wasfiled? We think not. K.S.A. 60-1102 expressly requires that amechanic's lien statement shall be verified by the claimant whenit is filed. Here the lien statement was not verified at all; itwas only acknowledged. It is obvious that an acknowledgment doesnot constitute a verification nor even an attempted one. Anacknowledgment shows, merely prima facie, that an instrumentwas duly executed, whereas a verification is an affidavitattached to a statement as to the truth of the matters thereinset forth. On this subject, Mr. Justice Fontron, in hisdissenting opinion in Ekstrom United Supply Co. v. Ash GroveLime & Portland Cement Co., supra, stated the following, whichthe court adopts: ". . . The distinction between a verification and an acknowledgment is too well recognized and understood to require extensive comment. It is enough to say that the two are not equivalents; an acknowledgment serves a quite different purpose than does a verification." (l.c. 639.)

In the Ekstrom case it was held that the failure of thesubcontractor to verify its lien statement in accordance with themandatory provisions of the statute was fatal to recovery, and inthe opinion it was said:

"It is a settled rule in this state that equitable considerations do not ordinarily give rise to a mechanic's lien. Being created by statute, a mechanic's lien can only arise under the circumstances and in the manner prescribed by the statute. A lien claimant must secure a lien under the statute or not at all. (Don Conroy Contractor, Inc. v. Jensen, 192 Kan. 300, 304, 387 P.2d 187.) The validity of a lien created solely by statute depends upon the terms of the statute, and parties may not by estoppel enact or enlarge a statute. (Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P.2d 280.) There is no privity of contract between the subcontractor and the owner, and the former can only obtain a lien by compliance with the statutory provisions. It is not enough that he has furnished the material and filed a lien. The verification prescribed in the statute is one of the necessary steps. Without such verification the lien claimant obtains nothing. The right to claim and enforce his

[199 Kan. 370]

      lien being statutory, compliance with the statute is a prerequisite. (Jones v. Lustig, 185 Kan. 208, 210, 341 P.2d 1018." (l.c. 635, 636.) (Emphasis supplied.)

In Reeves v. Kansas Coop. Wheat Mk't Ass'n, 136 Kan. 306,15 P.2d 446, the action was to enforce a thresher's lien authorizedby R.S. 58-204, now K.S.A. 58-204, and it was said: ". . . It will be observed that the statement contains no verification, but only an ordinary acknowledgment of the execution of the instrument and a certification that Reeves, who signed the statement, was personally known to the notary to be the person who did sign it and that the signer acknowledged the same to have been his own free will and act . . . The thresher's lien is a creation of statute and is to be perfected by taking the steps which the statute prescribes shall be taken. The right to acquire a thresher's lien is definitely given if the prescribed steps are taken by the thresher, but an enforceable lien can only be obtained by a substantial compliance with the statutory requirements. As has been seen, a number of requirements are prescribed, and one of the important ones is that a verified statement of the things essential to a lien shall be filed for record . . . "The verification prescribed in the statute means that the statement filed shall be sworn to by the claimant before an officer having authority by law to administer and certify oaths and affirmations. It was evidently intended to require truth and accuracy in the statement, but, whatever the purpose may have been, it is an essential element of a valid lien . . . The statute is mandatory, and the lack of a verification in the statement filed . . . necessarily defeats the lien. In claims for mechanic's liens there are some similar statutory requirements, and authorities on those cases have some application. It has been held that references and evidence outside of the lien statement are not sufficient to support a lien . . ." (l.c. 308, 309.) (Emphasis supplied.)

In Phillips, Mechanics' Liens (3d ed.), p. 637, § 366, it wassaid:

"Where a statute declares that the notice to create a lien `shall be verified' before filing, it is essential to the creation of the lien that it should be sworn to in the manner prescribed. The want of verification, or of a sufficient verification, is a defect which goes to the whole claim, and cannot be amended . . ." (Emphasis supplied.)

In Logan-Moore Lumber Co. v. Foley, 181 Kan. 984, 317 P.2d 467,reference was made to G.S. 1949, 60-1405, providing insubstance that in case an action was brought, any lien statementmay be amended by leave of court in the furtherance of justice aspleadings may be in any matter, except as to the amount claimed,and it was said:

". . . The provision for amendment of the lien statement in a proceeding brought for its enforcement is not intended to authorize the court to create a lien where none was created by the statement which was filed. In one sense

[199 Kan. 371]

      of the word, there really was nothing for plaintiff to amend, and even if there were, the requested amendment most certainly sought to change substantially the claim. . . ." (l.c. 990.)

In Safford & Son Lumber Co. v. Kerley, 184 Kan. 59, 334 P.2d 334,it was said that to permit "amendment" or "reformation"after the statutory period for filing a mechanic's lien wouldplace the court in the position of creating a lien, where nonewas in effect, and it was held: "The right to reform or amend a lien statement under the provisions of G.S. 1949, 60-1405 is dependent upon a present, existing and unreleased lien statement being on file." (Syl.)

The plaintiff contends that the cases of Logan-Moore LumberCo. v. Foley, supra, and Logan-Moore Lumber Co. v. Black,185 Kan. 644, 347 P.2d 438, which held there can be no amendment tocreate a lien where none was created by the statement when it wasfiled, were decided pursuant to G.S. 1949, 60-1405 which hassince been repealed and replaced by K.S.A. 60-1105 (b)liberalizing the district court's discretion to amend, bydeleting from the old statute which permitted amendments only "aspleadings may be in any matter." K.S.A. 60-1105 is a part of thenew code of civil procedure, and provides, in part:

"(b) Amendment. Where action is brought to enforce a lien the lien statement may be amended by leave of the judge in furtherance of justice, except to increase the amount claimed."

Commenting upon this section, Judge Gard, in Kansas Code ofCivil Procedure, Annotated, p. 661, states:

"This provision is the same as the last part of G.S. 1949, 60-1405, relating to amendment of the lien statement. The attitude toward amendment in Kansas has been liberal, both as expressed by the legislative intent and by the court decisions. This subsection does not make it less so . . ."However, Judge Gard continues: "In order to justify an amendment the lien statement must have been sufficient when filed to perpetuate the lien. S.J. Safford & Son Lumber Co. v. Kerley, 184 Kan. 59, 334 P.2d 334. Thus any amendment may be permitted to perfect a lien statement not vitally defective . . ." (p. 661.)

This court has always liberally construed our mechanic's lienstatutes, once a lien has attached, but it has consistently heldthat a mechanic's lien can only be acquired in the manner andupon the conditions prescribed in the statute; that theverification prescribed by the statute is an essential andfundamental step; that

[199 Kan. 372]

     without such verification the lien claimant obtains nothing, andthat the right to claim and enforce such a lien, being statutory,compliance with the statute is a prerequisite. That being thecase, this court is of the opinion the language used in K.S.A.60-1105 (b) is not sufficiently different from that used in theprior statute (G.S. 1949, 60-1405) to permit amendment of avitally defective lien statement after the statutory period inwhich to file such lien has expired.

The plaintiff's lien statement, lacking verification, createdno lien. The acknowledgment added nothing to its validity.Paragraph 7 of the plaintiff's petition requested the court toamend and perfect a lien which was imperfect on its face. Theexercise of the power of amendment conferred by 60-1105 (b) islimited by the possibility of injustice to either the defendantor to third persons, and the burden is upon the claimant to showthe proposed amendment would not work an injustice. The power isfurther limited where the proposed amendment would evade ordefeat the operation of statutes — here, 60-1102 and 60-1103 —since no court has power to nullify statutes valid on their face.(Atkinson v. Woodmansee, 68 Kan. 71, 74 P. 640.) In short,the plaintiff's proposed amendment would not have been "in thefurtherance of justice" since the amendment sought would have hadthe effect of creating a lien where none previously existed, andthis, as we have seen, would evade or defeat the operation of60-1102 and 60-1103.

In view of the foregoing, we hold that the acknowledgment ofplaintiff's mechanic's lien statement was not a verification oran attempted verification as required by K.S.A. 60-1102 and60-1103, and since the same was not corrected within thestatutory period for obtaining a valid lien, the lien statementwas vitally defective when filed, and it cannot now be amended topermit its verification. The district court did not err indismissing the plaintiff's action.

The judgment is affirmed.

[199 Kan. 373]

Back to top