I respectfully dissent from Division I of the majority opinion.
Tunis v. Withrow, 10 Iowa 305, 308, 77 Am. Dec. 117, frequently cited with approval, holds an affidavit is not proved to have been made unless the jurat is authenticated by both seal and signature of the notary.
Francesconi v. Independent Sch. Dist., 204 Iowa 307, 312, 214 N.W. 882, 885, states:
"A verified claim is one supported by oath. Such is the universally accepted meaning of the term."
It held a certification by the claimant was not a verification and denied the claim for a lien.
In McGillivray Bros. v. District Township, 96 Iowa 629, 630, 631, 65 N.W. 974, 975, a claim was filed, with an itemized statement of materials furnished: *Page 162
"It was in fact sworn to by one of the members of plaintiff's firm, but, by mistake or oversight of the notary, the jurat was not written out in said statement, nor was the notary's name signed, nor was any impression of seal thereon. Plaintiffs asked to have said statements so filed amended and corrected by adding thereto the jurat and official signature of the notary administering the oath, and that he be empowered to affix his seal thereto."
It was held that the petition for establishment of the claim containing the above allegations was demurrable because it showed on its face that the lien statement was not sworn to and that "the statute requires that the itemized statement which must be filed must be one which shows on its face that it is a sworn statement."
In Canfield Lbr. Co. v. Heinbaugh, 184 Iowa 149, 152, 168 N.W. 776, 777, we say:
"The [mechanic's] lien is dependent upon a compliance with these statutes. It is a statutory lien, that comes to the plaintiff only upon compliance. * * * a claim must be filed as the statute requires, duly verified * * * it is necessary that there be a verification in order to make the lien effectual * * *."
O'Ferrall v. Simplot, 4 (Clarke) Iowa 381, 396, 398, holds that, while it may be shown that a deed was never in fact acknowledged, as in the case of fraud or a false certificate, this right must not be confounded with a claim to supply defects in the officer's certificates and that it cannot be shown by evidence aliunde that there were omissions therein.
In Milligan v. Zeller, 197 Iowa 79, 82, 196 N.W. 793, a case involving a mechanic's lien, we reiterate the holding of the McGillivray case that the statute requires the filing of an itemized statement which shows on its face that it is a sworn statement. From the annotations in 1 A.L.R. 1573, and 116 A.L.R. 589, "Affidavits of liens and mortgages," which cite the McGillivray case, it appears that courts of other jurisdictions are not agreed as to the sufficiency of an unsigned or omitted jurat in instruments of such character. *Page 163
Gossard v. Vawter, 215 Ind. 581, 584, 21 N.E.2d 416, 417, which cites and follows the McGillivray case, states:
"It [the statute] requires that such petition shall be verified by the contestor. This means, as we understand it, that the petition shall not only be sworn to but that it shall also bear a jurat, that is, a certificate by the officer who administered the oath reciting that fact. * * * No self-serving recital in the body of the petition and no evidence, aliunde, could supply the requisite certification which was manifestly absent."
The majority opinion quotes from Stoddard v. Sloan, 65 Iowa 680, 683, 22 N.W. 924, 925, and State v. Hulsman, 147 Iowa 572, 126 N.W. 700. In the former, the jurat, signed and sealed by the notary, recited: "Subscribed in my presence and sworn to before me this tenth day of March, 1880." Proof that the instrument wassubscribed and sworn to came from the jurat of the notary and not from a self-serving recital by the subscriber in the body of the instrument. In the latter case, the instrument purported to have been signed and sworn to before a notary. The point involved was not the sufficiency of the jurat but the manner in which the oath was orally administered. In the case at bar, the question is not one of distinguishing "between the oath and the bare assertion," as suggested in the Hulsman case. The question here is between verification by the subscriber and a mere acknowledgment by him that his execution of the instrument was voluntary.
"An acknowledgment cannot take the place of a verification * * *." Favello v. Bank of America Nat. Tr. Sav. Assn., 24 Cal. App. 2d 342, 347, 74 P.2d 1057, 1059.
No doubt some act attended or followed the signing by the subscriber. Was there "an unequivocal and present act" by which he took upon himself the obligation of an oath? The notary certified that the "act" of the subscriber in this case was merely an acknowledgment that he executed the instrument as his voluntary act and deed. This attestation clause is in the language authorized by Code, 1939, section 10103, for an acknowledgment. An acknowledgment and a verification are substantially different. *Page 164
"An acknowledgment is a verification of the fact of execution, but is not a verification of the contents of the instrument executed." 1 C.J.S. 778, section 1.
I do not agree that what the statute denominates a certificate of acknowledgment is not only that but is also something different, to wit, a jurat.
The majority opinion quotes a statement from 2 C.J.S. 952, section 16, that "the affidavit will be sufficient * * * if * * * the body * * * recite that affiant was sworn." The single authority cited in support of this statement is Bickerdike v. Allen, 157 Ill. 95, 41 N.E. 740, 29 L.R.A. 782. That case was a collateral attack upon a judgment, which recited there was presented to the court due proof of publication of notice of suit, on the ground that the affidavit for publication was insufficient because the jurat, which was duly signed and sealed, merely stated the affidavit had been subscribed, without a recital therein that affiant was sworn.
Ramer v. Wright, 62 Colo. 53, 56, 159 P. 1145, 1146, 1 A.L.R. 1560, holds directly to the contrary. In the Ramer case the body of the verification recites that affiants "each for himself * * * deposes and says." The jurat duly signed and sealed by the notary reads, "Subscribed to before me this 10th day of July, 1915." The decision states:
"It is the certificate of the officer from which it must be determined whether or not an oath was administered. It is true that in the body of the statement the signers say that they `depose and say.' But, if it be assumed that `to depose' means `to swear,' the certificate does not show that the signers even `deposed' before the officer. It recites only that they subscribed."
The majority opinion also quotes from 1 Am. Jur. 946, section 19, to the effect that the omission of the jurat or signature is not fatal if it appears from the rest of the instrument, or from evidence aliunde, that the affidavit was duly sworn to before an authorized officer. As above noted, decisions of this court are to the contrary. However, the quoted rule is not, in any event, applicable to the facts of this case. This is not a case of the omission of a jurat or signature or a defect in a *Page 165 jurat. The certificate of acknowledgment is complete and regular. Nor was there offer of evidence aliunde to show any error or omission.
The inference the majority opinion would draw from the recital in the body of this instrument that it was made under oath would merely contradict the certificate. The certificate of the notary states that the subscriber acknowledged that he executed the same as his voluntary act and deed. Such certificate is the proof or evidence of what was done. If self-serving recitals by the subscriber in the body of an instrument, in and of themselves alone, can contradict and nullify a complete and regular statutory certificate of acknowledgment, such certificates will no longer have substantial legal force.
In effect, the majority opinion holds a notarial certificate of acknowledgment takes the place of a jurat to an affidavit for a mechanic's lien.
Indiana Quarries Co. v. Simms, 158 Ky. 415, 165 S.W. 422, a mechanic's-lien case, holds the statement in the certificate that claimant "acknowledged the execution of the foregoing notice of lien" was insufficient to show the statement was sworn to. Accordingly, the dismissal of the petition was affirmed.
In Schenectady Contracting Co. v. Schenectady Ry. Co., 106 A.D. 336, 94 N.Y. Supp. 401, the notice of mechanic's lien was not verified. Instead of a verification the claimant attached a certificate of acknowledgment. A demurrer to the petition was held to have been properly sustained.
The question involved in Pasqualetti v. Hilson, 43 Cal. App. 718, 720, 185 P. 693, 694, was the effect of filing an acknowledged instrument which the mechanic's-lien statute required to be verified. The court said:
"It would seem to be quite clear that a mere acknowledgment of the execution of such a notice by the person signing the same would not amount to a verification thereof and would not suffice to satisfy the requirements of these clauses of the section of the code in question in that regard."
In the case of In re James Passero Sons, 237 A.D. 638, 639, 261 N.Y. Supp. 661, 662, the mechanic's-lien claimant (a corporation) moved to correct and amend the notices, alleging *Page 166 they "had in fact been verified, i.e., that the subscriber to each of the notices had orally sworn to the truth of the statements contained in the notices before a notary, although no written form of verification had been attached to the instruments by the notary." The court stated that unless such a claimant files a notice substantially as prescribed by statute he has no lien on the real property:
"The notice in question to which a corporate acknowledgment was subjoined, but no other certificate of oath, was not verified in accordance with the statute. * * * Verification as used in the statute includes both the actual swearing to the truth of the statements by the subscriber and also the certification thereto by the notary * * *."
The court not only denied the motion to amend but also sustained a motion made by the opposing party for an order summarily discharging the liens of record.
The authorities relied upon in the majority opinion do not directly involve mechanic's liens, and the opinion merely discusses oaths, affidavits, and verifications in general. Our statute provides that a mechanic's lien may be perfected by filing a verified statement of account, setting forth certain matters. [Code, 1939, section 10277.] Mechanic's liens affect the record title to real estate and the rights of third persons. In that respect they are comparable to various other instruments which, when filed or recorded, affect the title to real or personal property and give notice to third persons. Hence there is less justification for relaxing their requirements than there might be in some cases. Mechanic's liens are rights given by statute and our decisions have heretofore required that one seeking a benefit under such statute must substantially comply with its provisions. I would not depart from this rule.
GARFIELD and BLISS, JJ., join in this dissent. *Page 167