194 Kan. 634 (1965) | Cited 15 times | Supreme Court of Kansas | April 10, 1965

The opinion of the court was delivered by

This was an action in which a subcontractor sought to foreclosea mechanic's lien for material supplied in the alteration andrepair of a business building. The facts are not in dispute.

Defendant (appellee) Ash Grove Lime & Portland Cement Company,a Corporation, was the owner of the property on which theimprovements were made. Jack Durham and John Jordan weredefendant contractors. Plaintiff (appellant) Ekstrom UnitedSupply Co., a Corporation, was the subcontractor which furnishedmaterials.

The plaintiff alleged it furnished material in a specifiedamount for the construction and alterations and repair of a men'sshower room in the defendant's plant building located on thedescribed property and that it filed its mechanic's lienstatement with the clerk of the district court within thestatutory time.

It was admitted that the lien statement was filed within thestatutory time; the description of the property upon which thelien was claimed was properly set out in the lien statement; theaccount was properly attached; and the articles purchased weredelivered upon the premises of the defendant and used in theimprovement of the building.

[194 Kan. 635]

Plaintiff's mechanic's lien statement filed with the clerk wassigned: "Ekstrom United Supply Company "By s/ W.L. Johnston "Claimant" The verification attached to the lien statement read as follows: "STATE OF KANSAS, ALLEN COUNTY, ss: "I do solemnly swear that I am the claimant above named and that the foregoing statement is true in every particular. " s/ W.L. Johnston "Subscribed and sworn to before me this 31st day of July, 1962. " s/ Berenice Dobie "Notary Public "Com. Exp: 5-3-65"

The case was submitted to the trial court upon stipulated factsfrom which it found that the lien statement had not been verifiedby claimant Ekstrom United Supply Co. in accordance with thestatute and entered judgment for the defendant, from whichplaintiff appeals.

The sole question for determination on this appeal is whetheror not the mechanic's lien statement was properly verified.

Our mechanic's lien statute, G.S. 1961 Supp., 60-1403, providesin pertinent part that any person who shall furnish any materialunder a subcontract with the contractor may obtain a lien uponthe land for the amount due him for such material by filing withthe clerk of the district court of the county in which the landis situated, within sixty days after the date upon which materialwas last furnished under such subcontract, a statement verifiedby affidavits setting forth the amount due from the contractor tothe claimant, and the items thereof as nearly as practicable, thename of the owner, the name of the contractor, the name of theclaimant, a description of the property upon which the lien isclaimed, and by serving notice as provided therein.

It is a settled rule in this state that equitableconsiderations do not ordinarily give rise to a mechanic's lien.Being created by statute, a mechanic's lien can only arise underthe circumstances and in the manner prescribed by the statute. Alien 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 statutedepends upon the terms of the statute, and parties may not byestoppel enact or enlarge a statute. (Clark Lumber Co. v.Passig, 184 Kan. 667, 673, 339 P.2d 280.)

[194 Kan. 636]

     There is no privity of contract between thesubcontractor and the owner, and the former can only obtain alien by compliance with the statutory provisions. It is notenough that he has furnished the material and filed a lien. Theverification prescribed in the statute is one of the necessarysteps. Without such verification the lien claimant obtainsnothing. The right to claim and enforce his lien being statutory,compliance with the statute is a prerequisite. (Jones v.Lustig, 185 Kan. 208, 210, 341 P.2d 1018.)

In Reeves v. Kansas Coop. Wheat Mk't. Ass'n., 136 Kan. 306,309, 15 P.2d 446, this court said: "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. Plaintiff offered to show and did testify that when the acknowledgment was made he was sworn to the statement, but the statement filed to constitute a lien must be complete in itself and must show on its face all the matters which the statute requires to be shown to create and fix the lien. The statute is mandatory, and the lack of a verification in the statement filed, and which is to serve as a notice to the public, 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. . . ." [Emphasis supplied.]

In the instant case the lien statement was executed and signedby plaintiff Ekstrom United Supply Co. as claimant by W.L.Johnston. So much would appear to be regular and unimpeachable.The verifying affidavit, however, signed by W.L. Johnston inwhich he swears he is the claimant, says nothing about his beingan agent and making it in behalf of the plaintiff or anyone else.The lien statement filed and signed by the plaintiff allegingthat it furnished the material to the defendant was not verifiedby plaintiff or W.L. Johnston as its agent. Failure of theplaintiff to verify its lien statement in accordance with themandatory provisions of the statute is fatal to its right torecover in the instant action, and the judgment of the trialcourt must be affirmed.

Back to top