No. 14337 

IN THE SUPREME COUIiT OF THE STATE OF MONTANA 

1978 

SAUNDERS CASH-WAY LUMBEX & HAFDm 

COMPANY, a Corporation, 

Plaintiff ad Appellant, 

SUSAN A. HERRICK ad JAY BROWN, d/b/a 

CALIVA CONSTRUCTION, 

Defendants ard Respondents. 

Appeal frm: District Court of the Thirteenth Judicial District, 

Ibnorable Ibbert H. Wilson, Jdge presiding. 

Counsel of Record: 

For Appellant: 

Fred N. Dugan, Billings, bbntana 

For Respondents: 

Herdrickson, Bishop and Everson, Billings, bbntana 

- 7 '- tg?P Filed: ii i- ' r 

Submitted on briefs: October 2, 1978 

Decidd: DEI. 6 - 1978 -- 

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Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Plaintiff appeals from an order dated, April 24, 1978, 

granting summary jud.gment in favor of defendant, and summary 

judgment dated May 12, 1978, entered by the District Court 

for the Thirteenth Judicial District, Yellowstone County. 

The parties submitted this appeal on an agreed statement in 

lieu of a record on appeal. 

Respondent owns real property situated in Yellowstone 

County, Montana. Respondent entered into a contract with 

Caliva Construction Company for improvements to the real 

property she owned. Materials and supplies used in the 

improvement of respondent's property were furnished by 

appellant to Caliva Construction Company on and between 

October 4, 1976 and November 10, 1976. Those materials and 

supplies were valued at $2,843.24. None of this amount has 

been paid to appellant. 

On December 21, 1976, appellant timely filed in the 

Clerk and Recorder's office for Yel-lowstone County a materialman's lien pursuant to section 45-502, R.C.M. 1947. That 

lien contained the following verification: 

"STATE OF MONTANA 1 

) ss. 

County of Yellowstone ) 

R. A. SAUNDERS, being first duly sworn, upon his oath 

deposes and says: 

That he is Secretary and Business Manager of claimant 

in this lien; that he makes this affidavit for and 

on behalf of claimant, being duly authorized thereunto; 

that he has read the within and foregoing notice of 

lien and the annexed statement marked 'Exhibit A'; 

and knows the contents thereof; that the matters and 

things therein set forth are true (to the best) of 

his own knowledge, (information and belief). 

/s/ R. A. Saunders 

(Acknowledgment ) " 

Appellant admits that R. A. Saunders did not have personal 

knowledge of the transactions resulting in the statement 
attached as Exhibit A. The above instrument is asserted by 

appellant as sufficient to meet the affidavit requirement of 

section 45-502, R.C.M. 1947. 

On July 12, 1978, complaint of appellant was filed for 

foreclosure. Service of process was made only upon the 

respondent. The contractor who was joined as a defendant in 

the cause had previously left the State, was not served and 

does not figure in this appeal other than in relation to 

the fact there is no direct contractual relationship between 

appellant and respondent and that the relationship of appellant 

to respondent is only that implied from the construction 

contract alleged in the complaint and answer. An agreed 

statement of facts was made and filed. 

The matter was submitted on the agreed statement of 

facts to the District Court upon cross motions for summary 

judgment. The District Court entered its order granting 

summary judgment for respondent and entered summary judgment 

declaring the lien to be invalid due to an insufficient 

verification. 

The only issue presented by this appeal is whether a 

mechanic's lien verified by a corporate officer "(to the 

best) of his own knowledge, (information and belief)" is 

valid and enforceable. After consideration of the record 

and law pertinent to this issue, we determine that the 

verification here was insufficient and we thus affirm the 

judgment of the District Court as to the invalidity of the 

lien. 

It is well settled in Montana law that the special right 

acquired by virtue of a mechanic's lien is purely statutory, 

and the manner of securing it, by perfecting the lien, consists 

of various steps and must be strictly followed. McGlauflin v. 

Wormser (19031, 28 Mont. 177, 72 P. 428; Crane & Ordway Co. 

v. Baatz (1917), 53 Mont. 438, 164 P. 533, 534; American& 
Homes, Inc., v. Broadmoor Corporation, et al. (1969), 153 

Mont. 184, 455 P.2d 334, 336. The statute which sets forth 

the necessary requirements for perfection of the lien is 

section 45-502, R.C.M. 1947, and states in pertinent part 

"[elvery person wishing to avail himself of the benefits of 

this chapter must file with the county clerk . . . a just 

and true account of the amount due him . . . containing a 

correct description of the property to be charged with such 

lien, verified by affidavit . . ." This Court has interpreted 

that language to require for perfection of the lien an 

account, a description and an affidavit. Western Plumbing 

Co. v. Fried (1905), 33 Mont. 7, 81 P. 394; Wertz v. Lamb 

(1911), 43 Mont. 477, 117 P. 89, 92. 

The purpose of the affidavit is not only to entitle the 

lien to record, "but to furnish a sanction for it in such an 

oath as will subject the affiant to punishment for perjury 

if it be false in material particulars." Crane & Ordway Co. 

v. Baatz, 164 P. at 535. Such a requirement is necessary 

because of the extraordinary right imposed by the mechanic's 

lien. Once the lien is perfected, it has priority over any 

prior lien, encumbrance or mortgage upon the land. Section 

45-506, R.C.M. 1947. This extraordinary claim should not be 

placed on the property of another unless the facts out of 

which the lien arises are vouched for on oath by some person 

who knows them to exist. Globe Iron Roofing & Corrugating 

Co. v. Thatcher (1889), 87 Ala. 458, 6 So. 366, 367. The 

sanction of perjury insures the veracity of the statements 

made by the person with knowledge. Thus, a test of the 

sufficiency of the affidavit to a mechanic's lien is whether 

perjury is assignable upon the verification to it. Gregg v. 

Sigurdson (1923), 67 Mont. 272, 215 P. 662, 663. 
Perjury is defined in our criminal code as knowingly 

making in an official proceeding a false statement while 

under oath. Section 94-7-202(1), R.C.M. 1947. Considering 

the verification before us and the record on appeal, we cannot 

conclude perjury is assignable upon this verification. 

The affidavit does not indicate of what R. A. Saunders 

has personal knowledge. Giving the verification the most 

favorable construction, it only affirms that R. A. Saunders 

knows the contents of the attached exhibit and that those 

contents are "true (to the best) of his own knowledge, 

(information and belief);" that is to say, he swears that 

statement shows that charges were incurred by Caliva Construction 

Company. He does - not swear to the validity of those charges. 

This Court has stated "that an affidavit so worded is in no 

sense equivalent to a declaration under oath that the matter 

contained therein is true." Rogers-Templeton Lumber Co. v. 

Welch (1919), 56 Mont. 321, 184 P. 838, 840. If the items 

contained in the statement were in fact false, R. A. Saunders 

could not be charged with perjury based on the verification 

as it is worded. The record reveals R. A. Saunders did - not 

have personal knowledge of the transactions resulting in the 

items contained in that statement, and therefore could not 

absolutely swear to the validity of the statement. Thus, 

perjury is not assignable upon this verification and in that 

respect it is insufficient. 

The verification is insufficient in another respect. 

When a lienor asks the Court to enforce a mechanic's lien 

and foreclose, the lienor is asking the Court to impose an 

extraordinary right upon the property involved. The lienor 

asks the Court to take such action based upon the complaint 

and accompanying affidavit as proof of the existence of 

the lien. Thus the complaint and affidavit in this situation 
"must be considered from the standpoint of evidence and 

tested by the rules of evidence, rather than those of 

pleading and practice." Benepe-Owenhouse Co. v. Scheidegger 

(1905), 32 Mont. 424, 80 P. 1024, 1026. See, Fisk ire Co. 

v. Lanstrum (1934), 96 Mont. 279, 30 P.2d 84, 85. 

This consideration is particularly relevant in the 

present situation where the parties submitted stipulated 

facts to the District Court, including the notice of the 

lien and supporting affidavit, and upon this proof asked for 

a decision. If the allegations contained in the notice and 

affidavit are made positively and sworn to as of the affiant's 

own knowledge, there is no apparent reason why they may not 

convince a court of their truth. Benepe-Owenhouse Co. v. 

Scheidegger, supra. "If the allegations, however positively 

made, are sworn to only upon information furnished to the 

affiant by some third person, then they are merely hearsay, 

and ought not to have been given any evidentiary value, for 

the evidence necessary to move the [court] must be legal 

evidence." Benepe-Owenhouse Co. v. Scheidegger, supra. 

As in Benepe, it cannot be ascertained from the affidavit 

before us now what portion of the facts alleged are declared 

upon R. A. Saunders' own knowledge, what portion upon information which may have been furnished to him from whatever 

source obtainable, or what portion upon his mere belief, 

which may be a deduction from facts and circumstances as 

they appeared to him. An affidavit verified in such a 

fashion is insufficient and will not support a claim for a 

mechanic's lien. Western Plumbing Co. v. Fried, supra. 

Therefore, because an affidavit is an essential part of 

a mechanic's lien, Western Plumbing Co. v. Fried, supra, and 

because the document in this case is insufficient as an 

affidavit no lien existed and the District Court is affirmed.: 

-6- 
Justice {J' 

We Concur: 

Chief Justice