Lockhead v. Waterworks
| Decision Date | 13 April 1895 |
| Citation | 40 W.Va. 553 |
| Court | West Virginia Supreme Court |
| Parties | Lockhead v. Berkeley Springs Waterworks & Improvement Co. et al. |
In passing upon a demurrer to a bill with which written documents are exhibited, as parts thereof, the court is not bound to accept as true and correct the allegations contained in the bill as to what such documents prove, or what is their effect in law, but may look to and go by the documents themselves.
Chapter 75 of the Code creates the mechanic's lien in certain cases, on certain conditions; and section 4 of such chapter, among other things, provides that such account, to be effectually filed for record as a lien, must be sworn %> by the person claiming the lien, or by some person on his behalf. Such oath is an element essential to the creation of the lien, and, to be effectual, must be in writing, as a part in some way, of the paper writing filed for record.
If such affidavit be made before any officer of another state or country, such as the District of Columbia, it is not duly authenticated for record until it is subscribed by such officer, and there be annexed thereto the certificate of the clerk or other officer of a court of record of such state or country, under an official seal, verifying the genuineness of the signature of the first mentioned officer, and his authority to administer an oath. Section 31, chapter 130, of the Code. A case in which these rules are discussed and applied.
Flick & Westenhaver and Henry R. Elliott for appellant, cited Code, c. 130, s. 31; Id. c. 73, s. 3; Id. c 73, s. 5; Id. c. 13, s. 4; Id. c. 75, ss. 4, 5; 2 Min. Inst. 864; 8 Gratt. 12; 6 Gratt. 660; Dev. Deeds, § 500; Rev. Stat. D. C. § 016; Rev. Stat. U. S. c. 115, § 2; 1 W. Va. 16; 22 W. Va. 667; 32 W. Va. 174; Dev. Deeds, §§ 473-4-5; 14 111. 254; 12 Bush. 408; 1 Am. & Eng. Enc. Law 1020; Dev. Deeds 502; 13 Peters 17; 7 Watts. 334; 1 Dev. & Rat. Eq. 7; 8 Greenl. Ev. § 383; Danl.
Ch. Prac. p. 892; 6 Veasey 823; 13 W. R. 128; 8 East 364; 1 Peters 368; 26 W. Va. 807; 7 W. Va. 569.
W. II. Travers for appellee, cited Code, c. 50, s. 4; Id. c. 73, s. 3; Id. c. 75, ss. 2, 4, 7; Id. c. 130, s. 31; Code (Va.) c. 176. s. 27; 115 U. S. 122; 7 W. Va. 467; Id 415; 13 Peters 17; 32 Am. Dec. 765; Thillips Mechs. Liens § 366.
Holt, President:
The bill in this case was filed in the Circuit Court of Morgan county for the enforcement of a mechanic's lien, under chapter 75 of the Code. There was a demurrer to the bill, which was sustained by the court; and the plaintiff expressing no desire to amend, the bill was dismissed, and this appeal has been allowed.
The decree sustaining the demurrer is the one error complained of. The main ground of demurrer was that the mechanic's lien had not been sworn to, and the oath certified, as required by statute. The bill alleges that the plaintiff made the affidavit required by statute, and on the 29th day of June, 1894, he had the same admitted to record in the clerk's office of the County Court of Morgan county. A copy of the mechanic's lien, with the affidavit therein, is filed as an exhibit with the bill.
Under the provision of section 4, chapter 75, of the Code, the party claiming a lien "shall within sixty days after he ceases to labor on or furnish material or machinery for such building or other structure, file with the clerk of the county court of the county, in which the same is situated, a just and true account of the amount due him, after allowing all credits, together with a description of the property intended to be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which account shall be sworn to by the person claiming the lien, or some person in his behalf."
The affidavit is as follows: "District of Columbia, City of Washington ss.," and signed, "James Lockhead," and concludes with the following certificate: "Subscribed and sworn to before me this 28th day of June, A. D. 1894. J. R. Young, Clerk Supreme Court, D. C. (with the seal of the Supreme Court of the District of Columbia) by M. A. Chancey, Assistant Clerk."
The case in hand has been argued by counsel as depending upon the true construction of section 31'of chapter 130 of the Code, regulating certain matters of evidence, which is as follows: It must be read in connection with section 4 of chapter 50, which reads as follows: "Where any oath may lawfully be administered, or affidavit or deposition taken within any county, it may be done by a justice therein, unless otherwise expressly provided by law."
1. It will be seen that section 31 of chapter 130 seems to be divided into two clauses, providing for two classes of cases., This law had its inception as section 3 of chapter 05 of the act of March 6, 1841 (see Acts 1840-41, p. 76) which reads as follows: "That in all cases when by law the affidavit of any person residing in another state of the United States or any district or territory thereof, or in any foreign country is required or may be necessary in any judicial proceeding in this state, the same shall be deemed duly and properly authenticated if subscribed and taken before some officer of such state, district or territory, or foreign country, authorized by the laws thereof to administer an oath or affirmation, and shall have annexed thereto a certificate of the clerk or other proper officer of a court of record of such state, district or territory or foreign country under the seal of such court, if there be a seal, or of any of the officers or agents before mentioned, verifying the genuineness of the signature of said officer, the existence of such office and the authority of such officer to administer an oath or affirmation." The officers and agents before mentioned in the act are "all American ministers plenipotentiary, charges d'affaires, consuls-general, consuls, vice-consuls, and commercial agents, duly appointed and recognized in any foreign country." Chapter 57 of the act of 14th February, 1844 (see Acts 1843-44, p. 52) authorized the governor to appoint and commission in each of the other states, in the territories, and in the District of Columbia, one or more commissioners, with authority to take acknowledgments and proof of deeds, etc.; and section three of the chapter provides as follows: "Every commissioner appointed by this act shall have full power and authority to administer all lawful oaths and affirmations, and his certificate of the same shall have the same effect in the courts of the commonwealth as the certificates of judges, justices and commissioners in this commonwealth." The act of April 4, 1848 (Acts 1847-48, p. 61) provided that notaries public should have the same right and power to administer oaths in all cases which justices of the peace now have and exercise, and their certificates and seals shall be entitled to the same faith and credit as those of justices of the peace. Then came the revisal of the Code of 1841). See report of Revisers of 1849 (page 866). Down to this time the modes of authentication of oaths by domestic and foreign and quasi foreign officers were separate and distinct. The latter clause, as it now stands, mentioned the District, and, putting it in the same class with foreign countries proper, required an additional certificate, verifying the genuineness of the signature of the foreign officer, taking and certifying the oath, the existence of such office, and the authority of such officer to administer an oath or affirmation. The revisers of 1849 put the section in its present form, including the methods of authentication by state and county officers in the first clause, and the method of authentication by foreign and quasi foreign officers in the last or second clause. See section 26, chapter 176, p. 665, Code 1849. It was amended and re-enacted by the act of December 21, 1859 (see Acts 1859-60, p. 139) so as to read as we find it in the edition of 1860 of the Code of 1849 (see Code 1860, s. 27, c. 176, p. 726) which, for the purpose now in hand, isthe same aswenowhave it in this state by section 31, chapter 130, Code 1891, p. 827.
2. Not only does the history of the enactment in question tend to show that the first clause of section 31 of chapter 130 is confined to authentication of oaths taken and certified by state and county officers, and that the second clause is confined to the mode of authentication of oaths taken and certified by officers of ail other states and countries including the District of Columbia, but I think such is the fair reading and meaning of the section, by its own language and terms. For we see that all the officers mentioned in the first clause are unequivocally state or county officers, unless it be the notary public, and the court or the clerk thereof; and as to those there can be no doubt, when we consider the history of the enactment, and its present apparent classification of domestic and foreign officers, but especially when we...
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