215 P. 663 | Mont. | 1923
prepared the opinion for the court.
Plaintiff instituted this action to foreclose certain mechanics’ liens and named the parties to this appeal as defendants. The appellant claimed a mechanic’s lien on the property involved, and the respondent held a real estate mortgage thereon. The cause was tried by the court without a jury. At the trial the respondent objected to the introduction of appellant’s lien in evidence upon the ground that the verification thereto was made on information and belief, and not positively. Thereafter the court held that the affidavit attached to the lien of appellant was made on information and belief, and was therefore void, and entered judgment and decree accordingly.
Did the trial court err in holding that the lien in question was verified on information and belief, and therefore void, or is the affidavit attached to the lien a sufficient compliance with the requirements of section 8340, Revised Codes of 1921? We believe that both these questions should be answered in the affirmative.
Section 8340, supra, provides, among other things, that the notice of lien shall contain—“a just and true account of the amount due him, after allowing all credits, and containing a correct description of the property to be charged with such lien, verified by affidavit, but any error or mistake in the account or description does not affect the validity of the lien, if the property can be identified by the description, which paper containing the account, description, and affidavit is deemed the lien.”
The verification to the lien of appellant reads as follows: “State of Montana, County of Yellowstone—ss.:
“C. D. Hagge, being first duly sworn, deposes and says: That he is the duly authorized agent of the Thompson Yards, Incorporated, a corporation, that he makes this affidavit for and on behalf of the said corporation; that he has read the foregoing claim of lien, with statement of account thereto
“C. D. Hagge.
“Subscribed and sworn to before me by the said O. D. Hagge this 28th day of July, A. D. 1920.
“[Seal] H. E. Sherman,
“Notary Public for the State of Montana, Eesiding at Billings, Montana.
“My commission expires May 31, 1921.”
Eespondent urges that the foregoing verification is substantially identical with the one that was under consideration in the case of Western Plumbing Co. v. Fried, 33 Mont. 7, 114 Am. St. Rep. 799, 81 Pac. 391. But the two are clearly distinguishable, in that in the’latter case the affidavit concludes with the statement “that the matters and things therein stated are true, to the best of his knowledge, information and belief.” The word “information,” as here used, implies that the belief of affiant is based upon hearsay and suggests a lack of knowledge of the facts set forth in the claim for lien. Such an implication is wholly lacking in the affidavit involved in this action. The affiant makes a direct and positive statement that he has read the claim for lien and knows the contents thereof, and that the matters and things therein stated are true, and then adds “as he verily believes.” Webster defines the word “verily” as meaning: “In very truth; beyond doubt or question; in fact; certainly; truly; confidently; really.” It does not appear from this affidavit that affiant was not possessed of a knowledge of the facts therein referred to, and it is only reasonable to presume that he, as well as any other person, verily believes the truth of a fact positively stated under oath. The statement that the entire contents of the claim for lien are true is not modified or rendered uncertain by adding the words quoted. Such an expression imports more than a mere belief of the facts stated, and is much stronger than a statement showing that affiant’s belief is founded on hearsay only. The affidavit involved herein makes evident and clearly
In Globe etc. Co. v. Thacher, 87 Ala. 458, 6 South. 366, an affidavit to a statement of claim for a mechanic’s lien reciting that “the foregoing statement is true as to the best of the affiant’s knowledge and belief,” was held insufficient because there was no affirmance of personal knowledge; and in the case of Leftwich Lumber Co. v. Florence Mutual etc. Assn., 104 Ala. 584, 18 South. 48, the same court held that an affidavit that the affiant “has personal knowledge of the matters and things stated in the foregoing statement, and that they are true to the best of his knowledge and belief,” was sufficient, in that: “Here the affidavit affirms that the affiant has personal knowledge of the facts contained in the statement, and that they are true to the best of that personal knowledge, and that he believes them to be true.”
In discussing the meaning of the words “verily believes,” the supreme court of Wisconsin, in the case of Russell v. Ralph, 53 Wis. 328, 10 N. W. 518, said the test of the affidavit was whether perjury could be assigned, and further stated that: “ ‘Verily believes,’ therefore, includes good reason in fact to believe, * * * for, while a person might have a ‘good reason to believe,’ and yet disbelieve, he could not ‘verily believe,’ without having good reason in fact to believe.”
One of the rules in testing the sufficiency of an affidavit to a mechanic’s lien is whether perjury is assignable upon it. In our opinion the affidavit involved in this action
We recommend that the judgment be reversed and the cause remanded to the district court, with directions to enter a decree in favor of the appellant.
Per Curiam: For the reasons given in the foregoing opinion, the judgment appealed from is reversed and the cause is remanded to the district court, with directions to enter a decree for appellant.
Reversed and remanded.