(dissenting):
In my humble judgment the decision of the majority is wrong. It puts on a defendant, though the plaintiff neglects or is unable to prove the affirmative, the burden of proving the negative of that which by all known rules the plaintiff must first affirmatively prove. In this case the direct issue was whether or not plaintiff had filed in the clerk’s office a valid mechanic’s lien and served a copy of the same on the owner. Plaintiff established the loss of the paper but did not prove all its contents. It was the bounden duty of plaintiff to prove that the lien filed! was- a valid one under our law. Code 1906, ch. 75, sec. 3. Such a lien is not valid unless verified by affidavit as required by the law. Unless a verification is proved, a lien is not proved. One seeking to enforce a mechanic’s lien must show that he has at least substantially complied with the law in affixing the lien on the property of the owner. His right thus to subject one person’s property for another’s debt is distinctly a statutory right. He must therefore show compliance with the statute before he at all hais the right. He must therefore show compliance with the statute before he at all has the right. “To render a mechanics lien valid, it must appear upon its face that all the provisions of the statute necessary to its creation have been substantially complied with, and where by proper pleadings a fact material and necessary to its validity is put in issue, the burden is upon the one asserting the lien to establish such fact by proof.” Blowpipe Co. v. Spencer, 61 W. Va. 191. “Such liens are purely creatures of the statute, and every necessary ¡step prescribed in order to perfect such liens must be pursued in order to make them a charge against the property of the owner.” Wees v. Elbon, 61 W. Va. 380. That verification is a necessary step, no one will deny. That plaintiff wholly failed to prove that there was a verification of the alleged lien soukht to be enforced in this ease, can not be controverted by a proper view of the record. Not a witness says the lost paper was verified. Three witnesses who would naturally have known whether or not it was verified *533were introduced by plaintiff, yet for some reason that question is not asked a single one of them. This most important requisite of a mechanic’s lien is not proved, though plaintiff had full opportunity to do iso if the fact existed that the alleged lien was verified. Why this omission? If implications and presumptions are to be relied on, then the implication and presumption is that plaintiff, which had the burden and the opportunity to prove the verification and did1 not do so, could not prove it. The majority opinion is based on an implication that the lien was verified. That implication is. certainly rebutted by the opposing one just referred to herein. Besides, implication in such matter as this is not proof. The filing in the clerk’s office does not prove verification. Many invalid papers are filed and recorded therein. The service on the owner does not prove verification. It is not unusual to serve copies of liens that the courts afterward find invalid. • Resort to the statutory form in the preparation of the lien by the draftsman, does not prove verification. Forms are frequently followed which are not thereafter properly filled up and sworn to. The draftsman says he followed the statutory form in making out the lien, but he says no more. Was the form of verification, if he attached one, utilized by some party in swearing to the facts that it recited', in subscribing the oath, and in having the same properly attested by an official authorized to administer oaths? He does not say, nor does any other witness. No ease was ever more deficient in the proof of an affirmative material fact. .
Even if defendant did in some negotiation take into consideration the amount in jeojardy by reason of the claim of this alleged lien, that is no admission that the lien is valid. Nor can a material requisite of the lien be proved by any implication arising from such caution on the part of defendant. Such implication can not properly atone for plaintiff’s failure to prove that which the law enjoin® on him to prove.