names of the materialmen who have furnished material, unless there is some amount still due them.37

§ 62. Verification of Claim of Lien.

40

39

The statement or claim of lien before being filed or served must be verified by affidavit;38 this requirement is mandatory and the failure to properly verify is fatal. The lien is not invalidated by the elapsing of a day between the date of the affidavit and the time of filing the claim of lien. Where a firm is interested, one partner may verify the claim, though one partner cannot as a notary take the oath of another partner verifying the claim,12 and the affidavit should not be taken before an attorney who is to appear in any litigation regarding it, although a claim of lien has been held not to be fatally defective because it was sworn to before the attorney who prepared it, where there is no proof that he was professionally engaged in any cause

192 Mich. 71, 158 N. W. 29, 23 D. L. N. 421 (422). 27 Cyc. 205. Kunze v. Jones, 200 Mich. 453, 166 N. W. 904 (907). Where there was a slight variance between the amount claimed and the amount awarded by the court, due to the fact that a part of the material was used upon another job, and the record contained no evidence of bad faith, such variance was disregarded and did not invalidate the lien. Grace Harbor Lumber Co. v. Ortman, 190 Mich. 429, 157 N. W. 96, 23 D. L. N. 73 (77-78).

37. Halpin V. Garman, 192 Mich. 71, 158 N. W. 29, 23 D. L. N. 421-422.

38. 85 of Act 179 of 1891; C. L. 1915 (14800), How. 2nd Ed. $13770, C. L. 1897 (10714). Gibbs v. Hanchette, 90 Mich. 657 (659), 51 N. W. 691. Upon signature and verification of claim of lien see: Jones on Liens, 3rd Ed. $$1452-1454; Rockel on Mechanics' Liens, 88119-120; Boisot on Me

43

chanics' Liens, §§444, 450-457, 458-461; Phillips on Mechanics' Liens, 3rd Ed. §§365-366a.

39. Lindsay v. Huth, 74 Mich.
712, 42 N. W. 358; 27 Cyc. 194-
195;
Wilkinson on Mechanics'
Liens, p. 60.

40. Fairbairn
V. Moody, 116
Mich. 61 (64), 74 N. W. 387, 75
N. W. 469.

41. A claim which is verified by one partner, stating the existence of the partnership, giving the names of the members thereof, and stating that the affidavit is made in their behalf, etc., properly shows authority to make and verify the claim of lien. Yeomans v. Parker, 105 Mich. 323 (324), 63 N. W. 316. See also Kleinert v. Knoop, 147 Mich. 387 (390), 110 N. W. 941; 27 Cyc.

42. Smalley V. Bodinus, 120 Mich. 363, 79 N. W. 567.

43. C. L. 1915 (§12082), How. 2nd Ed. (§1286), C. L. 1897 ($2640).

connected with it." There appears nothing to prevent verification by agent or attorney and, in case of a corporation, verification by an officer thereof is proper.45 Where the statement of lien was verified by two affidavits, one preceding and one following an account of the items of such claim, and the first affidavit was sufficient in form and properly verified, the fact that the second affidavit was sworn to before an attorney who was a member of the firm who later acted as claimant's attorneys in the enforcement of his lien, even though it were treated as void, would not invalidate the first affidavit."

8

§ 63. Service of Copy of Statement or Claim of Lien. Within ten days after filing the claim of lien the claimant must serve or cause to be served a copy thereof on the owner, part owner or lessee, against whose interest the lien is claimed if he can be found within the county,"

44. Zilz v. Wilcox, 190 Mich. 486, 157 N. W. 77, 23 D. L. N. 24 (26). See McMonegal v. Wilson, 103 Mich. 264, 61 N. W. 495.

45. 27 Cyc. 195.

46. McMonegal v. Wilson, 103 Mich. 264 (266), 61 N. W. 495.

47. Service of copy of claim of lien on the owner the day before filing is a substantial compliance 'with the statute. Fairbairn v. Moody, 116 Mich. 61 (64), 74 N. W. 386, 75 N. W. 469. In general, upon service of notice of claim of lien, see: Boisot on Mechanics' Liens, §§361-371; Phillips on Mechanics' Liens, 3rd Ed. $367a. Upon sufficiency of service of statement or notice of lien on agent of owner, see Note, 16 Am. & Eng. Ann. Cas. 355-357.

48. Service must be upon the person owning the premises at the time claim of lien is filed. Waters v. Johnson, 134 Mich. 436 (439), 96 N. W. 504. Notice of claim of

48

or in

lien may be served on holder of record title though a trustee in bankruptcy actually holds title. Fox v. Benham Mfg. Co.,

Mich.

164 N. W. 385. The land owner may waive statutory service so far as his own rights are concerned. Mouat v. Fisher, 104 Mich. 262, 62 N. W. 338. Where claim of lien was served upon a wife alone and she was made sole defendant in a bill to enforce, it was held that neither her land nor a building erected thereon, under a contract with her husband in his own behalf, were subject to a lien for materials entering into the construction. Hall v. Erkfitz, 125 Mich. 332, 84 N. W. 310. But where a husband contracted in his own name on his wife's behalf for erection of buildings on her land pursuant to agreement between themselves to defeat liens thereby, the fact that the claim of lien for materials furnished was

49

case of his absence from the county, on the agent having in charge such premises, if within the county, and if neither principal nor agent in charge can be found within the county where the premises are situated, the copy shall be served by posting it in a conspicuous place on the premises within five days after the same might have been personally served on the principal or agent. The statutory requirement in this regard is as follows: Every person filing such statement or account as provided in the preceding section, except those persons contracting or dealing directly with the owner, part owner or lessee of such premises shall, within ten days after the filing thereof, serve on the owner, part owner or lessee of such premises, if he can be found within the county, or in case of his absence from the county, on his agent having in charge of such premises within the county wherein the property is situated a copy of such statement or claim; but if neither of such persons can be found within the county where such premises are situated, then such copy shall be served by posting in some conspicuous place on said premises within five days after the same might have been served personally, could the principal or agent, as aforesaid, have been found.50 The

served upon

V.

the husband alone as the owner of the land will not prevent lien. Frohlich Carroll, 127 Mich. 561 (564-565), 86 N. W. 1034. A mortgagee whose interest is represented by a conveyance, absolute in form, need not be served. Kay v. Towsley, 113 Mich. 281 (283), 71 N. W. 490.

49. Service on the owner's wife residing on the premises in his absence, she apparently having the authority usually exercised by wives over homestead property in the absence of their husbands, has been held sufficient as being on the agent in charge. Greilick Co. v. Rogers, 144 Mich. 313 (316-317), 107 N. W. 885. Substituted serv

ice upon an agent and bookkeeper in charge of the owner's office is insufficient. Wiltsie v. Harvey, 114 Mich. 131 (133-134), 72 Ň. W. 134. Personal service is imperative where possible, and a lien will fail because of defective service of the statement of lien where the subcontractor knew that the owner had a resident agent but served the notice only by posting a copy on the front part of the building. Zilz v. Wilcox, 190 Mich. 486, 157 N. W. 77, 23 D. L. N. 24 (25).

50. §6 of Act 179 of 1891 as amended by Act 199 of 1893; C. L. 1915 (14801), How. 2nd Ed. §13771, C. L. 1897 (10715). For cases of failure to make

service must be by the statutory method and service by mail, personal service outside the county, service on an agent not in charge of the premises, or service by posting where the owner or an agent in charge could have been found within the county, is insufficient.51 Where the land owner accepts service in lieu of the statutory service he will not be heard to complain.52

Proof of service of the copy of claim of lien upon the owner, part owner or lessee, and the date and manner thereof, shall be made by the affidavit of the person serving or posting the same, which proof of service shall be filed in the office of the register of deeds of the county in which the property is situated before any subsequent proceedings shall be taken for the enforcement of such lien.53

§ 65. Proof of Service of Claim or Statement of Account for Lien Under Section 6 of Lien Law.

in said County being duly
day of
19—, at

sworn, says that on the in said County of — he served a true copy of a Statement of Account and Lien, (which Statement had been duly filed in the office of the Register of Deeds of said County, on the 19, and of which Statement of Account and Lien a true copy is hereto annexed), on54 And further this deponent says not.

the55

of

day of

by56

Subscribed and sworn to before me, this
19.

day

My Commission expires

on the notice as filed, which notice stated the name of the owner of the premises, the fact that such affidavit merely showed service upon "him personally" not naming the owner-will not be held fatal to a lien, especially where the point was first raised in the Supreme Court. Bourget v. Donaldson, 83 Mich. 478 (481-484), 47 N. W. 326. See Form No. 5, Part Three.

54. In this space insert the name of owner, part owner, or lessee of the premises, or of the agent in charge of the same.

55. In this space insert either one of the following phrases: "owner," "part owner,' or "lessee,' or "agent of the owner," "part owner,' or "lessee," of the premises described in said Statement of Account and Lien. In case of service on agent, add "said agent having charge of said prem

ises within the county wherein the same are situated," or words of similar import.

56. In space indicated insert one of the following clauses, as the case may be, viz.: "By handing to said personally, a true copy of said Statement of Account and Lien," or "by posting a true copy of said Statement of Account and Lien at — on said premises, that being a conspicuous place on said premises."

In case of service on agent, insert also in this space the following: "This deponent further says that the owner ("part owner" or "lessee") of said premises was absent from said County of

to

from

19

19 that during that time this deponent diligently searched for said but that this deponent was unable to find him within said County of