This appeal arises from an action broughtby the plaintiff, Red Rooster Construction Company(Red Rooster), to foreclose a mechanic's lien on theproperty of the defendant River Associates, Inc. Theplaintiff appeals1 from the judgment of the trial courtrendered in favor of the defendants River Associates,Inc. (River Associates), Connecticut Savings Bank(bank), and Connecticut Attorney's Title InsuranceCompany (title company). The trial court concluded thatthe plaintiff's mechanic's lien was invalid.
Red Rooster claims that the trial court improperlyconcluded that: (1) the bank, as a mortgagee of theproperty, was an owner of the property pursuant toGeneral Statutes 49-342 and was thereby entitled tonotice of the filing of the lien; (2) there was no evidencethat Red Rooster had recorded a notice of lis pendens
[224 Conn. 566]
within the one year requirement of General Statutes49-39;3 and (3) the mechanic's lien certificate had notbeen sworn to within the meaning of 49-34. We agreewith Red Rooster regarding its first and second claimsbut disagree with its third claim. Consequently, weaffirm the judgment of the trial court.
The relevant facts are as follows. River Associateswas the record owner of real property located in NewHaven. River Associates entered into a contract withRed Rooster in which Red Rooster agreed, for the contractprice of $3,376,985.14, to construct condominiumunits and commercial space on that property. Constructioncommenced on September 30, 1987.
On August 23, 1989, River Associates ordered RedRooster to stop working because River Associates didnot have sufficient capital to pay for the completionof the project. As of that date, River Associates owedRed Rooster $258,402.36 for work already completed.On September 25, 1989, Red Rooster filed a certificateof mechanic's lien on the land records to secure itsclaim. Red Rooster served a copy of the certificate onRiver Associates but did not serve a copy on the bank,an encumbrancer of the property by virtue of a mortgage
[224 Conn. 567]
given to the bank by River Associates andrecorded on the land records on February 4, 1988.
On October 16, 1989, Red Rooster filed this complaintseeking to foreclose its mechanic's lien. The complaintnamed River Associates and the bank as defendants.4On the same date, Red Rooster recorded a notice oflis pendens on the land records and served River Associatesand the bank with a copy of the complaint, the certificateof mechanic's lien, and the notice of lis pendens.Pursuant to General Statutes 49-37 (a),5 the lien wasreleased upon substitution of a bond with the bank asprincipal and the title company as surety. The complaint
[224 Conn. 568]
was then amended to reflect the substitution of thebond and the addition of the title company as a defendantto the action.6 The liability of the bank and the titlecompany, however, continued to depend on the validityof the mechanic's lien. See Six Carpenters, Inc. v.Beach Carpenters Corporation, 172 Conn. 1, 7,372 A.2d 123 (1976).
After a court trial, the trial court requested the partiesto file posttrial memoranda. Thereafter, havingagreed with the claims asserted by the defendants intheir posttrial briefs, the trial court concluded that RedRooster's mechanic's lien was invalid because: (1) thebank, as a mortgagee of the property, was an "owner"of the property within the meaning of 49-34, and wasthereby entitled to notice of the filing of the lien; (2) therewas no evidence that Red Rooster had recorded a noticeof lis pendens within the one year requirement of49-39; and (3) the mechanic's lien was not sworn toby Red Rooster within the meaning of 49-34. Thisappeal followed.
I
Red Rooster first claims that the trial court improperlyconcluded that the bank, as a mortgagee of theproperty, was an owner of the property within themeaning of 49-34 and was thereby entitled to noticeof the filing of the lien. We agree.
Section 49-34 provides that a mechanic's lien is notvalid unless the person performing the services or furnishingthe materials serves a true and attested copyof the certificate of lien on the owner of the propertywithin thirty days after filing the lien. See footnote 2.The issue in this case, therefore, is whether a mortgageeis an owner for the purposes of the statute and isthereby entitled to notice of the filing of the lien.
[224 Conn. 569]
Connecticut adheres to the title theory of mortgages."It is undisputed that a mortgagee in Connecticut, bothby common-law rule and by statute, is deemed to havetaken legal title upon the execution of a mortgage onreal property. General Statutes 47-36h; State v.Stonybrook, Inc., 149 Conn. 492, 496, 181 A.2d 601,appeal dismissed, cert. denied, 371 U.S. 185, 83 S.Ct.265, 9 L.Ed.2d 227 (1962); Leonard v. Bailwitz,148 Conn. 8, 12, 166 A.2d 451 (1960); City Lumber Co. ofBridgeport, Inc. v. Murphy, 120 Conn. 16, 19,179 A. 339 (1935); Hartford Realization Co. v. Travelers Ins.Co., 117 Conn. 218, 224, 167 A. 728 (1933); Desideriov. Iadonisi, 115 Conn. 652, 654, 163 A. 254 (1932);McKelvey v. Creevey, 72 Conn. 464, 467, 45 A. 4 (1900);Chamberlain v. Thompson, 10 Conn. 243, 251 (1834)."Conference Center Ltd. v. TRC, 189 Conn. 212, 218,455 A.2d 857 (1983). At the same time, however, we haverecognized that the law of mortgages is built primarilyon a series of legal fictions "as a convenient meansof defining the various estates to which conveyancesmay give rise." Ensign v. Batterson, 68 Conn. 298, 309,36 A. 51 (1896).
Despite our title theory of mortgages, "[i]n substanceand effect . . . and except for a very limited purpose,the mortgage is regarded as mere security . . . andthe mortgagor is for most purposes regarded as thesole owner of the land. . . ." McKelvey v. Creevey,supra, 466-67. The mortgagee "has title and ownershipenough to make his security available, but for substantiallyall other purposes he is not regarded asowner, but the mortgagor is so regarded, always subjectof course to the mortgage." Id., 468.
In light of our long use of the term owner to meanthe mortgagor; see, e.g., State v. Stonybrook, Inc.,supra; Leonard v. Bailwitz, supra; Waterbury SavingsBank v. Lawler, 46 Conn. 243, 245 (1878) ("the lawis well settled that, except as between the immediate
[224 Conn. 570]
parties, the mortgagor before foreclosure is the ownerof the property . . . while the interest of the mortgageeis mere personal estate."); Mills v. Shepard,30 Conn. 98, 101 (1861); Savage v. Dooley, 28 Conn. 411,413 (1859); Porter v. Seeley, 13 Conn. 564, 571 (1840);we are not persuaded that the legislature intended theterm "owner" in 49-34 to mean the mortgagee.7 Along-standing rule of statutory construction is that ifa statute "makes use of words [that] have an acceptedmeaning at the common law they ought, in the absenceof other controlling reasons, to be expounded andreceived with that meaning." Faulkner v. Solazzi,79 Conn. 541, 546, 65 A. 947 (1907); see also, e.g., Seamanv. Climate Control Corporation, 181 Conn. 592,603, 436 A.2d 271 (1980).
Moreover, to deviate from a construction of the statutethat accords the term "owner" its commonlyapproved usage would create an unnecessary conflictwithin the statutory scheme. A court should interpreta statutory scheme as a whole with a view towardreconciling its separate parts in order to render a reasonableoverall interpretation. See, e.g., Ganim v.Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). GeneralStatutes 49-33 (a) provides that a person isentitled to a mechanic's lien on a property only if theclaim to payment arises by virtue of an agreement with,or consent by, the owner of the land. A mortgagee,however, ordinarily does not have the power to subject
[224 Conn. 571]
the property to claims that may give rise to amechanic's lien, at least before the mortgagee takespossession of the property upon a default of the underlyingobligation. The use of the term "owner" in49-33 (a) indicates, therefore, that a mortgagee is notan owner of the property. As a result, we decline toread the legislature's use of "owner" in 49-34 differentlyfrom its meaning in related sections. See, e.g.,Mashantucket Pequot Tribe v. Connecticut, 737 F. Sup. 169,173 (D. Conn.), aff'd, 913 F.2d 1024 (2d Cir. 1990),cert. denied, ___ U.S. ___, 111 S.Ct. 1620, 113 L.Ed.2d717 (1991).
The defendants rely on the canon of statutory constructionthat a court should avoid a statutory interpretationthat places a statute in constitutionaljeopardy. See, e.g., In re Valerie D., 223 Conn. 492,514, 613 A.2d 748 (1992). Specifically, the defendantsargue that, because the mortgagee has an interest inthe property, the mortgagee is constitutionally entitledto notice of the filing of the lien particularly if, as inthis case, the mechanic's lien would take priority overthe mortgagee's interest.8 Consequently, the defendantsargue, this canon compels the conclusion that thelegislature intended the term "owner" to include themortgagee. We are not persuaded.
The defendants have not cited a single appellate decisionfrom any state, nor do we know of any, that hasheld a mechanic's lien statute unconstitutional for failingto provide a mortgagee with notice of the filing of
[224 Conn. 572]
the lien.9 Although we generally seek to avoid a constructionof a statute that places it in constitutionaljeopardy, a party seeking to invoke this rule must raise,at the least, a plausible constitutional claim. The defendants'argument does not raise such a claim.
The constitutional defect alleged by the defendantssweeps so broadly that it would necessarily compel aconclusion that those entitled to notice would includenot only a mortgagee but also every other encumbrancerwhose interest might be affected by the filingof the lien.10 Absent more authority and analysis thanthe defendants have provided, we are not inclined toimpose such a constitutional requirement, nor have thedefendants advanced any argument why a mortgagee'sinterest is somehow constitutionally superior to thatof other lien creditors, such as judicial lienors.
[224 Conn. 573]
Furthermore, the United States Supreme Court hassummarily affirmed a federal district court's conclusionthat a mechanic's lien statute that did not providefor notice to the owner was constitutional. Spielman-Fond,Inc. v. Hanson's, Inc., 379 F. Sup. 997, 999 (D.Ariz. 1973), aff'd, 417 U.S. 901, 94 S.Ct. 2596, 41L.Ed.2d 208 (1974). Although not necessarily entitledto full precedential value; see Connecticut v. Doehr, 500U.S. ___, 111 S.Ct. 2105, 2113 n. 4, 115 L.Ed.2d 1(1991); the court in Connecticut v. Doehr, supra,recognized its summary affirmance in Spielman-Fond,Inc., and stated that mechanic's lien statutesserve to protect creditors' preexisting interests in theproperty at issue. In a concurring opinion, Chief JusticeRehnquist expanded upon the court's discussionof the purpose of mechanic's lien statutes: "Materialman'sand mechanic's lien statutes award an interestin real property to workers who have contributedtheir labor, and to suppliers who have furnished material,for the improvement of real property. Since neitherthe labor nor the material can be reclaimed onceit has become a part of the realty, this is the onlymethod by which workmen or small businessmen whohave contributed to the improvement of property maybe given a remedy against a property owner who hasdefaulted on his promise to pay for the labor and thematerials. To require any sort of a contested court hearing . . .would largely defeat the purpose of thesestatutes." Id., 2121-22.
A rule requiring notice to all subsequent encumbrancerswould defeat the important purpose ofmechanic's lien statutes to provide an inexpensive andsimple method for material suppliers and contractorsto secure the value of the services or materials that theyhave added to the property. If notice to all encumbrancerswere required, a mechanic's lienor would berequired to incur the expense of hiring a lawyer to
[224 Conn. 574]
search the land records and to provide legal notice toall those claiming an interest in the property. We candivine no constitutional command compelling such anonerous rule, nor do we choose to adopt an interpretationof 49-34 that would undermine the very purposeof the mechanic's lien statute.
II
Red Rooster next claims that the trial court improperlyconcluded that there was no evidence that it hadrecorded a notice of lis pendens within the one yearrequirement of 49-39, and that the lien was thereforeinvalid. We conclude that the trial court abused its discretionby refusing to open the judgment to considerwhether Red Rooster had timely recorded the lispendens.
After the close of evidence, the trial court directedthe parties to file posttrial memoranda. In their memorandum,the defendants claimed for the first time thatthe lien was invalid because Red Rooster had notpleaded or offered any evidence at trial that it had fileda notice of lis pendens on the land records within oneyear of the filing of the mechanic's lien. In a writtenresponse to this claim, Red Rooster submitted a copyof the sheriff's return of the lis pendens that demonstratedthat a notice of the lis pendens had beenrecorded and served on all of the defendants. The recordalso contained a copy of the lis pendens and sheriff'sreturn. Red Rooster also argued, in response to thedefendants' claim, that it had no obligation to plead andprove compliance with the filing requirement of 49-39.The defendants did not assert in the trial court, norhave they asserted on appeal, that the sheriff's returnis inaccurate or that a lis pendens had not been filedon the land records.
The trial court found that there was no evidence thatRed Rooster had filed a lis pendens on the land records
[224 Conn. 575]
within the one year period. The trial court statedthat Red Rooster's "submission . . . does not constituteevidence of the filing" and that the plaintiff wasobligated to establish compliance with 49-39. Consequently,the trial court concluded that the lien wasinvalid and should be discharged. After the trial courthad rendered judgment for the defendants, RedRooster moved to open the judgment. In a hearing onthat motion, Red Rooster again directed the trial courtto the lis pendens and the sheriff's return in the record.The trial court, however, refused to open thejudgment.
"`A motion to open and vacate a judgment . . . isaddressed to the [trial] court's discretion, and the actionof the trial court will not be disturbed on appeal unlessit acted unreasonably and in clear abuse of its discretion.See Manchester State Bank v. Reale, 172 Conn. 520,523-24, 375 A.2d 1009 (1979); State v. Fahey,147 Conn. 13, 15, 156 A.2d 463 (1959). In determiningwhether the trial court abused its discretion, this courtmust make every reasonable presumption in favor ofits action. State v. Bitting, 162 Conn. 1, 11,291 A.2d 240 (1971); E. M. Loew's Enterprises, Inc. v. Surabian,146 Conn. 608, 612, 153 A.2d 463 (1959). CelaneseFiber, Division of Celanese of Canada, Ltd. v. PicYarns, Inc., [184 Conn. 461, 466-67, 440 A.2d 159(1981)]. Acheson v. White, 195 Conn. 211, 214-15,487 A.2d 197 (1985). Yanow v. Teal Industries, Inc.,196 Conn. 579, 583, 494 A.2d 573 (1985). . . . (Internalquotation marks omitted.)" Walton v. New Hartford,223 Conn. 155, 169-70, 612 A.2d 1153 (1992). "Suchdiscretion, however, imports something more than leewayin decision making and should be exercised in conformitywith the spirit of the law and should not impedeor defeat the ends of substantial justice." Ducci ElectricalContractors, Inc. v. Department of Transportation,28 Conn. App. 175, 182, 611 A.2d 891 (1992).
[224 Conn. 576]
Even if we were to agree with the trial court thatRed Rooster had the obligation to plead and prove compliancewith 49-39; but see Swerdloff v. AEGDesign/Build, Inc., 209 Conn. 185, 187-89,550 A.2d 306 (1988); Northeast Electrical Contractors v. Udolf,1 Conn. App. 169, 171-72, 469 A.2d 419 (1984); we concludethat the trial court abused its discretion in refusingto open the judgment. Prior to the trial court'sdecision, but after the close of evidence, Red Roostersubmitted a copy of the lis pendens and its sheriff'sreturn that demonstrated that the lis pendens had beenrecorded on the land records. The defendants did notargue that the lis pendens was inaccurately or untimelyrecorded. In considering the defendants' claim thatthere was no evidence that a lis pendens had beenrecorded in accordance with 49-39, the trial courtcould have compared Red Rooster's submission to thesame documents contained in the trial court file.
Following the court's judgment for the defendants,Red Rooster, in its motion to open, again directed thetrial court's attention to the court's file. Accordingly,the trial court could simply have referred to the filein order to determine the validity of the plaintiff's assertion.If the trial court were concerned with the accuracyof the documents in the file, then it could have askedthe defendants whether they disputed the accuracy ofthe sheriff's return. Under these circumstances, thetrial court did not exercise its discretion in conformitywith the spirit of the law or the notion of substantialjustice. We conclude, therefore, that the trial courtabused its discretion in refusing to open the judgmentto consider the plaintiff's evidence that the lis pendenshad been filed in conformity with 49-39. We furtherconclude, absent any claim to the contrary by thedefendants, that Red Rooster complied with 49-39 inthat regard.
[224 Conn. 577]
III
Red Rooster finally claims that the trial court improperlyconcluded that the mechanic's lien had not beensworn to by Red Rooster within the meaning of 49-34.We disagree.
The following facts are relevant to this claim. RedRooster's president, Jeremy Berkowitz, presented thecertificate of mechanic's lien to a notary public to benotarized. He signed the certificate in the notary's presenceand she then notarized the document. The notarydid not administer an oral oath, nor did Berkowitz signan oath. The notary's signature on the certificateappears under the following passage: "On this . . .day . . . before me, Jeremy Berkowitz, president ofRed Rooster Construction Company, Inc., personallyappeared, and made solemn oath that the facts statedherein are true. . . IN WITNESS WHEREOF, Ihereto set my hand and seal this . . . day. . . ."Berkowitz' signature does not follow any passage statingthat it was his solemn oath that the facts statedin the certificate were true. His signature merelyappears at the end of the body of the certificate statingthe facts allegedly entitling him to a mechanic's lien.
Section 49-34 provides that a mechanic's lien isinvalid unless the certificate of the lien filed on the landrecords is "subscribed and sworn to by the claimant.""`[A] requirement that a document be "sworn to" contemplatesthe execution of an affidavit that the factscontained in it are true.'" J. C. Penney Properties, Inc.v. Peter M. Santella Co., 210 Conn. 511, 513-14,555 A.2d 990 (1989). "An oath . . . signifies the undertakingof an obligation `to speak the truth at a time[that] may deeply affect the rights and the characterof individuals.'" State v. Grant, 176 Conn. 17, 24,404 A.2d 873 (1978). Consequently, we have held that the
[224 Conn. 578]
mechanic's lien statute requires the performance orexecution of an oath swearing that the facts containedin the document are true. J. C. Penney Properties, Inc.v. Peter M. Santella Co., supra.
General Statutes 1-22 entitled "Ceremony," provides:"The ceremony to be used, by persons to whoman oath is administered, shall be the holding up of theright hand; but when any person, by reason of scruplesof conscience, objects to such ceremony or whenthe court or authority by whom the oath is to be administeredhas reason to believe that any other ceremonywill be more binding upon the conscience of the witness,such court or authority may permit or requireany other ceremony to be used." (Emphasis added.) Wepreviously have noted the statutory requirement of aceremony to effectuate a valid oath: "An oath . . .is a solemn and formal declaration that the contentsof a declaration, written or oral, are true, and it mustbe administered in accordance with the ceremony andprocedures set forth in [1-22]." (Emphasis added.)State v. Assuntino, 180 Conn. 345, 354, 429 A.2d 900(1980). Section 1-22 requires, therefore, that someceremony be conducted if an oath is obligated by statuteor other law.
Although the term "ceremony" is not defined by statute,it is clear that some formality is essential. "[T]omake a valid oath, there must be, in some form, an unequivocaland present act by which the affiant consciouslytakes upon him or herself the obligation of anoath. . . . Stated otherwise, in order to have a validstatement under oath, the attention of the person tobe sworn must be called to the fact that his or her statementis not a mere asseveration, but must be swornto, and he or she must do some corporal act in recognitionof this." 58 Am.Jur.2d 1056, Oath and Affirmation18 (1989), and cases cited therein.
[224 Conn. 579]
Red Rooster argues that merely signing the certificateof lien that contained a statement signed by thenotary that the claimant appeared and made solemnoath that the facts stated in the certificate were truewas sufficient to comply with the oath requirement. Weare unpersuaded.
We first note that we need not decide in this casewhether the signing of a written statement by theactual claimant swearing that the facts in the documentare true, without more, constitutes a sufficient ceremonyfor an oath. In the present case, Red Rooster'spresident did not sign an oath that the facts containedin the certificate were true. Indeed, the notary was theonly individual to sign a statement that even containedlanguage approximating an oath. Moreover, her signedstatement asserted only that Berkowitz had sworn thatthe facts contained in the certificate were true, anassertion that she later testified at trial was untrue.
To validate a mechanic's lien certificate without anyevidence that the claimant performed some act or formof ceremony indicating that the claimant consciouslyundertook the obligation of an oath "would invite confusion,delay and uncertainty into an area where certaintyand complete compliance with the statutoryrequirements are of paramount importance to interestedparties and the general public." J. C. PenneyProperties, Inc. v. Peter M. Santella Co., supra, 518.In light of the fact that (1) an oral oath was not administered,(2) Red Rooster's president did not sign a statementswearing to the truth of the facts contained inthe certificate, and (3) 1-22 requires that someceremony be performed in making an oath, the trialcourt properly concluded that the certificate was not"sworn to."11 The lien is therefore invalid.
[224 Conn. 580]
The judgment is affirmed.
In this opinion the other justices concurred.
1. The plaintiff appealed from the judgment of the trialcourt to the Appellate Court, and we transferred the appeal to thiscourt pursuant to Practice Book 4023 and General Statutes 51-199 (c).
2. General Statutes 49-34 provides: "CERTIFICATE OF LIEN TOBE RECORDED AND NOTICE GIVEN TO OWNER. A mechanic's lien is not valid,unless the person performing the services or furnishing thematerials, (1) within ninety days after he has ceased to do so, lodgeswith the town clerk of the town in which the building, lot or plot ofland is situated a certificate in writing, which shall be recorded bythe town clerk with deeds of land, (A) describing the premises, theamount claimed as a lien thereon, the name or names of the personagainst whom the lien is being filed and the date of the commencementof the performance of services or furnishing of materials, (B) statingthat the amount claimed is justly due, as nearly as the same can beascertained, and (C) subscribed and sworn to by the claimant, and (2)within the same time, or prior to the lodging of the certificate butnot later than thirty days after lodging the certificate, serves a trueand attested copy of the certificate upon the owner of the building,lot or plot of land in the same manner as is provided for the serviceof the notice in section 49-35."
3. General Statutes 49-39 provides: "TIME LIMITATION OFMECHANIC'S LIEN. ACTION TO FORECLOSE PRIVILEGED. A mechanic's lienshall not continue in force for a longer period than one year afterthe lien has been perfected, unless the party claiming the liencommences an action to foreclose it, by complaint, cross-complaint orcounterclaim, and records a notice of lis pendens in evidence thereofon the land records of the town in which the lien is recorded withinone year from the date the lien was recorded or within sixty days ofany final disposition of an appeal taken in accordance with section49-35c, whichever is later. Each such lien, after the expiration ofthe one-year period or sixty-day period, as the case may be, withoutaction commenced and notice thereof filed as aforesaid, shall beinvalid and discharged as a matter of law. An action to foreclose amechanic's lien shall be privileged in respect to assignment for trial.With respect to any such lien which was validated in accordance withthe provisions of section 49-37a, the one-year period or sixty-dayperiod, as the case may be, shall toll from the date of the validation."
4. The complaint also named Kenneth Kraus, the president ofRiver Associates, as a defendant. River Associates and Red Roosterlater stipulated that, after a subsequent payment of $50,000 to RedRooster, River Associates owed $208,402.36 on the contract. Pursuantto that stipulation, Red Rooster withdrew its action as to Kenneth Kraus.
5. General Statutes 49-37 (a) provides in relevant part:"DISSOLUTION OF MECHANIC'S LIEN BY SUBSTITUTION OF BOND. JOINDER OFACTIONS ON CLAIM AND BOND. (a) Whenever any mechanic's lien has beenplaced upon any real estate pursuant to sections 49-33, 49-34 and49-35, the owner of that real estate, or any person interested in it,may make an application to any judge of the superior court that thelien be dissolved upon the substitution of a bond with surety, and thejudge shall order reasonable notice to be given to the lienor of theapplication. . . . If the judge is satisfied that the applicant in goodfaith intends to contest the lien, he shall, if the applicant offersa bond, with sufficient surety, conditioned to pay to the lienor orhis assigns such amount as a court of competent jurisdiction mayadjudge to have been secured by the lien, with interest and costs, orderthe lien to be dissolved and such bond substituted for the lienand shall return the application, notice, order and bond to the clerkof the superior court for the judicial district wherein the lien isrecorded; and, if the applicant, within ten days from such return,causes a copy of the order, certified by the clerk, to be recorded inthe town clerk's office where the lien is recorded, the lien shallbe dissolved. Whenever a bond is substituted for any lien after anaction for the foreclosure of a lien has been commenced, the plaintiffin the foreclosure may amend his complaint, without costs, so as to makethe action one upon the bond with which the plaintiff may join an actionto recover upon his claim. . . . Whenever a bond has been substituted forany lien, pursuant to this section, unless an action is brought to recoverupon the bond within one year from the date of recording the certificateof lien, the bond shall be void."
6. River Associates ceased active participation in this caseafter the complaint had been amended and has not participated in thisappeal. Hereinafter, we will refer to the bank and the title companyas the defendants.
7. In concluding that an "owner" of a property under GeneralStatutes 49-34 includes the mortgagee of the property, the trial courtprincipally relied on our decision in Papa v. Greenwich Green, Inc.,177 Conn. 295, 416 A.2d 1196 (1979). Papa does not support the trialcourt's decision. In Papa, we merely held that the term "owner" includedindividuals who had purchased condominium units after the lienor hadbegun to furnish the material or services to the vendor of theproperty. Papa v. Greenwich Green, Inc., supra, 303. Nowhere in ourdecision in Papa did we suggest that a mortgagee of the condominiumunits was an "owner" pursuant to the statute.
8. Red Rooster began to provide material and services toRiver Associates on September 30, 1987. The bank received its interestpursuant to a mortgage deed recorded on February 4, 1988. GeneralStatutes 49-33 provides that a mechanic's lien takes priority overany subsequent encumbrance if the material or services on which thelien is based were provided before the subsequent encumbrance originatedeven if the lien is recorded after that encumbrance. Consequently, inthe present case, Red Rooster's lien, if valid, would take priorityover the mortgage given to the bank.
9. The defendants have directed our attention to a decision ofthe Superior Court, Satter, J., in which the mechanic's lien was heldto be unconstitutional because it does not give notice of the filingof the lien to the mortgagee. PDS Engineering & Construction, Inc. v.Double RS, Superior Court, judicial district of Hartford-New Britainat Hartford, Docket No. CV 90 03786845 (January 6, 1992) (5 Conn. L.Rptr. 306). That decision does not advance the appellees' claimbecause: (1) the trial court later reversed itself and held thatthe mechanic's lien statute is constitutional; and (2) we find thereasoning in the original opinion unpersuasive. We simply note that, inthe original decision, the Superior Court's extension of our previousdecisions in Roundhouse Construction Corporation v. Telesco MasonsSupplies Co., 168 Conn. 371, 362 A.2d 778, vacated on other grounds,423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975), on remand, 170 Conn. 155,365 A.2d 393, cert. denied, 429 U.S. 889, 97 S.Ct. 246, 50 L.Ed.2d172 (1976), and General Electric Supply Co. v. Southern New EnglandTelephone Co., 185 Conn. 583, 441 A.2d 581 (1981), and the UnitedStates Supreme
10. The defendants' argument, if taken to its logicalconclusion, would also cast significant doubt on statutory schemesthat grant federal, state or municipal tax liens priority over otherencumbrances without notice of the filing of the tax liens to thesubsequent encumbrancer. On the basis of the present briefing, wefind unpersuasive an argument that casts such a wide shadow.
11. The plaintiff has cited cases from other jurisdictions thathe argues support upholding the lien in this case. See People v.Walker, 347 Cal.App.2d 554, 55 Cal.Rptr. 726, cert. denied,389 U.S. 824, 88 S.Ct. 60, 19 L.Ed.2d 77 (1967); HCI Corporation v.Voikos Construction Co., 581 A.2d 795 (Me. 1990); Blackburn v. MotorVehicles Division, 576 P.2d 1267 (Or. App. 1978); State v. Lewis,85 Wn.2d 769, 539 P.2d 677 (1975). These decisions, however, are bothfactually and legally inapposite to the present case. None of thecases cites an applicable statute that requires, as in our state, someform of ceremony to be performed to effectuate a valid oath. Furthermore,in each case the party signed the document below a written statementthat the document was under oath or that the party "swore to" the truthof the facts contained; see Blackburn v. Motor Vehicles Division,supra, 1270; State v. Lewis, supra, 771; an oral oath was actuallyadministered; HCI Corporation v. Voikos Construction Co., supra, 797-98;or there was direct evidence by both the party and the notary that theparty understood that he was under oath, and that the notary remindedthe party that he was regarded as being under oath. People v. Walker,supra, 557. In the present case, the record is devoid of such facts.