In Re GVR Ltd. Co., Inc.

695 P.2d 1240, 107 Idaho 1101, 1985 Ida. LEXIS 421

• Court: Idaho Supreme Court
• Decided: February 7, 1985
• Docket: 15643
• Status: Published

Opinions

PER CURIAM.

The United States Ninth Circuit Court of Appeals has certified to us the following issue: Whether under Idaho law a mechanic’s lien filed under Title 45, Chapter 5 of the Idaho Code must include an acknowledgment, pursuant to I.C. § 55-805, in order for it to be properly recorded. We hold that it does not, and never has.

Title 45, Chapter 5, Idaho Code, provides laborers and materialmen with the right to assert and obtain a lien against the property upon which they have performed labor or for which they have furnished materials. I.C. § 45-507 states specifically the requirements with which a lien claimant must conform in order to perfect a mechanic’s or materialman’s lien, one of which is that the claim must be verified. Nowhere in § 45-507 or anywhere else in Title 45, Chapter 5 is there a requirement that a mechanic’s or materialman’s claim of lien must be acknowledged in order to be recorded. I.C. § 45-509 requires the county recorder to record such claims. I.C. § 31-2402 delineates the duties of a county recorder:

He must, upon the payment of his fees for the same, record separately, in large and well-bound separate books, in legible handwriting, typewriting or by photographic reproduction:

1. Deeds, grants, transfers and mortgages of real estate, releases of mortgages, powers of attorney to convey real estate and leases which have been acknowledged or proved.

5. Notices of mechanics’ liens.

7. Notices of attachments upon real estate.

It is at once noted that since 1864 the legislatures, territorial and then state, while requiring acknowledgments for recording of deeds, etc., have not imposed that requirement on notices of claimed mechanics’ liens — which one would think might be the end of inquiry.

Acknowledgments are separately dealt with in Title 55, Chapter 8 of the Idaho Code. I.C. § 55-801, which has remained unchanged since 1887, provides: “Any instrument or judgment affecting the title to or possession of real property may be recorded under this chapter.” I.C. § 55-802 separately deals with judgments, rendering them recordable without any requirement of acknowledgment. I.C. § 55-805 deals with “instruments” and provides that “before an instrument can be recorded, unless it is otherwise provided, its execution must be acknowledged by the person executing it____” Any doubt that a mechanic’s lien is not an “instrument” within the purview of I.C. § 55-805, was put to rest Jong ago in Maxwell v. Twin Falls Canal Company, 49 Idaho 806, 292 P. 232 (1930), where this Court accepted the California Supreme Court’s ascertainment of the meaning of the word “instrument” long, long ago in the year 1880:

The California court placed a construction on the term “Instrument” as used in a section of their codes which is identical with our C.S., sec. 5413, wherein the court said: “The word instrument as used in the code invariably means some written paper or instrument signed and delivered by one person to another, transferring the title to, or giving a lien on property, or giving a right to debt or duty.” (Hoag v. Howard, 55 Cal. 564.) Quoted and adopted in In re McIntosh, 150 Fed. 546, 548, 80 C.C.A. 250.

Id. at 813, 292 P. at 234-35 (emphasis added).

C.S. sec. 5413, referred to in the foregoing excerpt, is now codified as I.C. § 55-813, now providing as it has since 1864:

Conveyance defined. — The term “conveyance” as used in this chapter, embraces every instrument in writing by which any estate or interest in real property is created, alienated, mortgaged or encumbered, or by which the title to any real property may be affected, except wills.¹

SHEPARD, J., concurs in the result.

1 . A visit to the Hoag opinion discloses an error in this Court’s quotation in that Hoag actually reads “creating" a lien instead of “givin” a lien— which is of no significance other than to highlight that the use of “creating” shows a closer adherence to the language of I.C. § 55-813 and its identical California counterpart.