The reporter will set out counts Nos. 3 and 4 of the complaint, Avhich fully state plaintiff’s (appellant’s )alleged cause of action; all other counts having been AvithdraAvn. A demurrer was interposed, *557separately and severally, to each of these counts (3 and 4), upon the sustaining of which by the court the plaintiff declined to plead further and brings this appeal solely for a review of the questions raised, by the demurrer.
We are of opinion, without considering the others (which becomes entirely unnecessary), that one ground of the demurrer at least was well taken. It raises the point that the complaint fails to allege that- the notice or statement of the claim of a mechanic’s lien, alleged to have been filed by defendant in the probate office of Jefferson county against plaintiff’s property, was maliciously so filed.
The damages so claimed, as will be observed from reading the complaint set ont in the report of the case, are such as are alleged to have resulted from a disparagement by defendant of plaintiff’s title to certain real estate by filing and recording said claim of a lien against it; and the action falls, of course, within the class denominated in the law as “slander of title,” which is defined to be “a false and malicious statement, oral or written, made in disparagement of a person’s title to real or personal property, or of some right of his, Causing him special damage.” — 25 Am. & Eng. Ency. Law, 1074. The false statement may consist of an assertion either that the plaintiff has no title to the property of which he is the ostensible owner, or that his title is defective, or that, as here, the defendant has himself an interest in or lien upon the property. — Moore v. Rolin, 89 Va. 107, 15 S. E. 520, 16 L. R. A. 625; Ency. supra. Whatever be the statement, however, in order for it to form the basis of a right of action it must have been made, not only, falsely, but maliciously. These elements are the very gist of the action, without both of which it does not exist. — 25 Am. & Eng. Ency. Law (2d Ed.) 1078, 1079; 13 Ency. Pl. & Pr. 97; Hill v. Ward, *55813 Ala. 310; Ivey v. Pioneer Savings & Loan Co., 113 Ala. 349, 21 South. 531; Moore v. Rolin, supra; Code, § 2459.
The allegation of the complaint to the effect that, at the time the defendant filed and had recorded in the probate office of Jefferson county the said verified statement claiming the said mechanic’s lien on plaintiff’s property, the plaintiff was in no wise indebted to the defendant is perhaps equivalent to an allegation that the defendant’s claim was false, since, of course, a debt owing from plaintiff to defendant for work and labor done upon the property or material, etc., furnished for its improvement, or the like, was essential to the creation of such a lien in defendant’s favor. — Code, § 4754 et seq. But although false, yet if the claim was asserted by the defendant in good faith, an action will not lie against him for damages; otherwise every failure to maintain a title or lien claimed to or upon property, or every error of judgment or mistake made in the assertion of such claim, or suit brought to enforce it, however honestly and sincerely done, would subject a party to suit and mulct him in damages. — Hill v. Ward, supra. In this class of matters, the extent of the ¡penalty which the law inflicts upon an unsuccessful, honest disputant is to award costs to the opposing party, and that only when the controversy between them has proceeded to the point of and resulted in litigation. While malice, of course, cannot exist in legal contemplation unless the statement or claim was in fact false or untrue, yet, in order to constitute malice, it is seen that something-more must be alleged and shown than the mere falsity of the statement or claim. Even though false, if the defendant had probable cause for believing his statement, there can in law be no malice; and, though the fact that there was á want of probable cause for .believing- the statement is evidence of malice, it is not conclu*559sive of its existence, nor its legal equivalent. — Lunsford v. Dietrich, 93 Ala. 568, 569, 9 South. 308, 30 Am. St. Rep. 79; Ivey v. Pioneer Savings Bank, 113 Ala. 349, 21 South. 531; 25 Am. & Eng. Enc. Law, 1079. There is an entire absence in the complaint of any allegation of malice, and the demurrer was properly sustained.
The contention of appellant’s counsel in this matter is best stated in his own words, found in his brief, to wit: “The court will notice that this is not an action for damages for any filing of the notice of lien, regardless of Avhether the filing was wrongful or,not. The complaint clearly states that the said T. M. Henderson [defendant] failed or refused to cancel said notice or declaration, or to remove the same from record, after being notified to do so, and, as a proximate consequence, the damage is averred. It is not the filing of the notice we complain of but of the failure, wrongful failure, to cancel the notice of record after being notified to do so, Avhen the complaint shows it was the duty of the defendant to have done so. *' * * The complaint shows a duty OAved by defendant to plaintiff, viz., the duty to remove the notice or cancel the same of record, because, as averred in the complaint, there was no indebtedness existing betAveen the parties at the time the claim was filed, nothing on which tó base the supposed lien, and because defendant had been notified to remove or cancel the same. * * * (2) The breach of that duty is shown by the averment that the defendant failed to perform such duty after being notified to remove or cancel the notice. * * i:' (3) The damages are averred to have been sustained as ■ a proximate consequence of defendant’s failure to perform the duty. * * * Why, then, is the plaintiff required to aver that the notice [claim of lien] was maliciously * * * filed?” The answer is: Because the law denies a right of action unless the claim of the lien was maliciously *560filed. Looking at the substance, and not tbe form, of tbe allegations in tbe complaint, the source of tbe damages claimed was tbe filing of tbe claim or declaration for record by wbicb act tbe defendant claimed a lien on tbe property in disparagement of plaintiff’s title, rendering it unmarketable. If tbe positive act of tbe defendant in filing and having recorded sucb false claim (if that it was) of a mechanic’s lien on plaintiff’s property is not actionable (and it is not, unless it was maliciously done), then certainly bis negative act in failing to cancel of record of sucb claim or declaration would not be actionable. If there was no legal wrong in putting sucb claim on record (and there was not unless it was maliciously done) there could, in tbe nature of things, in tbe absence of a statute, be no legal duty to remove it from or cancel it on tbe record. It cannot on principle be legally wrong to fail or refuse to undo something wbicb one has rightfully or lawfully done; ■conditions remaining unchanged. This seems to us to be tbe plain logic of tbe case.
It is true we have a statute (Code, § 4898) creating a right of action, unknown to tbe common law, and providing a penalty of $200 in favor of mortgagors, etc., and against mortgagees, etc., for a failure after demand made, to enter on 'the margin of tbe record of a mortgage wbicb has been paid tbe fact of its satisfaction; but tbe theory and principle upon wbicb tbe statute proceeds is that, although tbe mortgage was rightfully placed on record in tbe first instance, it becomes wrong to suffer it to remain thereon uncanceled, after demand for its cancellation, when, by reason of events subsequent to its recording (that is, its payment), it has been satisfied. This statute of course, is not so extensive as to apply against mechanics’ lienholders who have placed a claim on record; but, even if it did, it would not cover tbe case here sought to' be made, since tbe contention is *561not that it was a valid lien when placed on record and should have been canceled on demand because subsequently paid, but that it was a false claim and had no existence in fact for the want of a debt owing from plaintiff to defendant to support it. . Clearly plaintiff has no cause of action except for slander of title, and this, as seen, does not exist in the absence of malice. Appellant cites us to no case sustaining the contrary-the case he cites (Moore v. Rolin, 89 Va. 107, 15 S. E. 520, 16 L. R. A. 626) being in harmony with the principles we have reached.
Affirmed.