210 Conn. 511 | Conn. | 1989
The sole issue in this appeal is whether the provision in General Statutes § 49-34 (1) (C), directing that a certificate of mechanic’s lien be sworn to by the claimant, requires a written recital of the oath-taking on the certificate. We hold that the oath must appear in writing on the certificate of mechanic’s lien for it to be valid under the statute. Accordingly, we conclude that the trial court erred in upholding the validity of a certificate of mechanic’s lien that contained no written oath.
The facts pertinent to this appeal are as follows. Pursuant to General Statutes § 49-34,
“An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents. 1 Am. Jur. 316 § 2, 343 § 70; 1 Words & Phrases 620; Pittis v. Abrams, 129 N.Y.S.2d 216, 217 [1954]. A verification, on the other hand, is a sworn statement of the truth of the facts stated in the instrument verified. It always involves the administration of an oath. 1 Am. Jur. 942 § 13, 949; 44 Words & Phrases 138, 142.” Bell & Zajicek, Inc. v. Heyward-Robinson Co., 23 Conn. Sup. 296, 298, 182 A.2d 339 (1962).
We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanics’ liens in order to achieve the remedial purposes of the mechanics’ lien statutes. “Provisions of mechanics’ lien law should be liberally construed so as to reasonably and fairly implement its remedial intent.” H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). We have also recognized, however, that such a policy has limitations: “[T]he principles that guide our interpretation of mechanic’s lien legislation are well settled. Although this legislation creates a statutory lien in derogation of the common law ... its remedial purpose to furnish security for a contractor’s labor and materials requires a generous construction. . . . Generosity of spirit does not, however, permit departure from reasonable compliance with the specific provisions of the statute. Stone v. Rosenfield, [141 Conn. 188, 191, 104 A.2d 545 (1954)]; City Lumber Co. v. Borsuk, [131 Conn. 640, 645, 41 A.2d 775 (1945)].” (Citations omitted.) Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550-51, 429 A.2d 796 (1980).
Three Connecticut cases lead us to conclude that the liens in this case are invalid. Bell & Zajicek, Inc. v. Heyward-Robinson Co., supra, is the closest on point. In that case, the Superior Court held that a certificate of mechanic’s lien that was merely acknowledged, but not sworn to, was invalid. The only distinction between the present case and Bell & Zajicek, Inc., is the attempted validation of the certificate in this case by the testimony of the oath taker.
The case of Kelly v. Alling, 84 Conn. 487, 80 A. 782 (1911), is persuasive by analogy. In Kelly, General Statutes (1902 Rev.) § 4138
We reach back 169 years for the most cogent analogy. In Pendleton v. Button, 3 Conn. 406 (1820), the defendant proposed to prove that title to certain land was in one Stoddard, and to this end offered in evidence a deed that had never been acknowledged in writing, together with accompanying testimony that a parol acknowledgment was actually made. We stated: “This evidence was rejected; and most correctly. It is provided by statute, that no deed shall be accounted complete in law, to convey real estate, but such as is written witnessed, acknowledged, and recorded. Tit. 142, c. 1. s. 7. The acknowledgment, to be recorded, must necessarily, be in writing; and such is the invariable practice. To the record all men recur, for the purpose of ascertaining the title of lands; and to satisfy the enquiry, a written acknowledgment is indispensably necessary.” (Emphasis in original.) Id., 412.
We conclude that a certificate of mechanic’s lien under General Statutes § 49-34 is sufficiently like a deed of land to make Pendleton dispositive of this case. Section 49-34 (1) provides that the “certificate in writing . . . shall be recorded by the town clerk with deeds of land . . . . ” Unlike the effect of a mere notice, as claimed by the defendant, a lien certificate may effect a transfer of land title by means of a foreclosure of the lien. See City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 19, 179 A. 339 (1935) (“[i]n all essential respects the attributes of foreclosure of mortgages apply to mechanics’ liens”).
We hold that the mechanic’s lien at issue in this case is invalid because it did not contain a written oath that it had been sworn to by the signer.
There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment discharging the lien.
In this opinion the other justices concurred.
“[General Statutes] Sec. 49-34. certificate of lien to be recorded and notice given to owner. A mechanic’s lien is not valid, unless the
The defendant filed an identical second certificate on November 19,1987, to cure a perceived defect in service. We consider both certificates as one.
The plaintiff briefed the issue as follows: “Whether the trial court erred in denying plaintiff’s application for discharge or reduction of mechanic’s lien, by finding the defendant complied with Connecticut General Statutes § 49-34 (1) (C) requiring the certificate of mechanic’s lien be sworn to, on the basis of parol evidence, when the certificate of mechanic’s lien itself does not indicate an oath was administered or otherwise sworn to.” The
We believe the parties have misstated the issue. This case is not about the parol evidence rule. It concerns simply the validity of an oath on a mechanic’s lien not in writing on the certificate of lien.
The last portion of the defendant’s Exhibit 3 provides: “On this the 16th day of November, 1987, before me, RICHARD H. RAPHAEL, the undersigned officer, personally appeared, CLIFFORD S. GIDEON, who acknowledged himself to be the Vice President Finance of PETER M. SANTELLA COMPANY, INC., a Corporation, and that he, as such Vice President Finance, being authorized so to do, executed the foregoing instrument of the purposes therein contained, by signing the name of the corporation by himself as Vice President Finance.
“In witness whereof I hereunto set my hand.
ISI_
Richard II. Raphael
Commissioner of the Superior Court”
The last portion of the defendant’s Exhibit 4 provides: “On the the 17th day of November, 1987, before me, RICHARD H. RAPHAEL, the undersigned officer, personally appeared, CLIFFORD S. GIDEON, who acknowledged himself to be the Vice President Finance of PETER M. SANTELLA COMPANY, INC., a Corporation, and that he, as such Vice President Finance, being authorized so to do, executed the foregoing instrument of the purposes therein contained, by signing the name of the corporation by himself as Vice President Finance.
“In witness whereof I hereunto set my hand.
ISI_
Richard II. Raphael
Commissioner of the Superior Court”
General Statutes (1902 Rev.) § 4138 provides: “No such lien shall attach to any building or its appurtenances, or to the land on which the same may stand, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for such building and its appurtenances;
General Statutes (1902 Rev.) § 4137 provides: “No person other than the original contractor for the construction, raising, removal, or repairing of the building, or a subcontractor, whose contract with such original contractor is in writing, and has been assented to in writing by the other party to such original contract, shall be entitled to claim any such lien, unless he shall, after commencing, and not later than sixty days after ceasing, to furnish materials or render services for such construction, raising, removal, or repairing, give written notice to the owner of such building that he has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefor on said building; which shall be served upon said owner, if he resides in the same town in which said building is being erected, raised, removed, or repaired, by any indifferent person, by leaving with him or at his usual place of abode a true and attested copy thereof; and if said owner does not reside in said town, but has a known agent therein, such notice may be so served upon said agent, otherwise it may be served by any indifferent person, by mailing a true and attested copy of said notice to such owner at the place where he resides; and when there shall be two or more owners, such notice to one of them shall be notice to all; and said notice with the return of the person who served it indorsed thereon shall be returned to the original maker thereof within said period of sixty days. No subcontractor, without a written contract complying with the provisions of this section, and no person