The United States of America v. White Bear Brewing Co., Inc., and Chicago Title and Trust Company as Trustee

premises anything him, search he have had his I taken the that on and my over should be free search until hand and walked warrant lapse they of further door tot- time. there and unlocked the and gallons] whiskey [sixty-nine out.” testifying, appellant In asked was that The return on warrant recited regarding what he had said the search. premises o’clock were searched at 7 quote reply: We morning that at A.M. The sun arose “I I said ‘well don’t see no use appellant 7:04. made motions for The setting day;’ said, I around here all quashing and of the search warrant ‘you got have the search warrant suppression of the evidence. already you on and have served it appeal it on was District urged me;’ ‘why you don’t turn that I said “other outbuild- that words negro aloose and let me [Harrison] ings” ” rendered in- the search warrant unlock the door.’ valid or consent and that no waiver nothing involuntary find We coerced making a search under the warrant be- by appellant to the search. the consent daylight given fore was or could have Rather, appellant’s was we think attitude given, been and that the consent to the Harrison, reflected in his statement to search was exacted coercion. they got “looks like Tommy, me this time description The in the search they’ve got a search warrant”. warrant the barn was definite and being given voluntarily Consent specific. The reference to “other out search, requirements the technical were buildings” vague may have been and in consider waived and we need not further prejudice appellant definite. No has daytime at whether not it was only resulted as the barn was searched. Fried, Cir., In re time the search. 453; F.2d Crawford v. United light do know We how much Cir., 1955, States, 5 219 F.2d 207. there have been when the search appearing, No error appellant The made. knew two Affirmed. recognized the officers. He said he one them at distance of about ten feet they premises. when first came recog lapsed

Some time had after this got way.

nition before the search jurisdictions In some seems be the “daytime”

rule used in and

respect to search warrants the stat relating them utes means the time be tween sunrise sunset. United States America, The STATES UNITED Martin, D.C.Mass.1929, 33 F.2d v. Plaintiff-Appellant, juris adopted rule in a number v. day dictions and this Circuit is that CO., Inc., BEAR BREWING WHITE begins period time when there is Chicago Company Title and Trust light sufficient natural enable one Trustee, al., Defendants-Appellees. et recognize person’s readily to features No. 11431. a reasonable distance. Moore Appeals Court of United States States, Cir., 1932, 840; F.2d United Seventh Circuit. States, Cir., 1932, Distefano v. 18, 1955. Nov. 58 F.2d 963. daytime or not had ar

Whether appellant’s the search of rived when barn commenced, given

had the consent unlocking by appellant and the him of door to the barn waived Atty. Wagman, Special

P. Assts. Gen., for the United States. Avery, Jr., F. William H. Kenneth Saltiel,

Burgess, Chicago, Ill., Edward P. Chicago, George Rag- Ill., appellee. land, Jr., Jr., Cummings, Hen Walter J. ry Preston, Ill., Chicago, for White A. Brewing Chicago Co., Bear and Title and Trustee, defendants-appel Co., Trust as Burgess lees, Sidley, Austin, Smith, Chicago, Ill., of counsel. DUFFY, Judge,

Before Chief and LINDLEY, and Circuit FINNEGAN Judges. Judge. FINNEGAN, Circuit Brewing Defendant White Bear proper- Inc., is the record title-holder of ty government, plaintiff, which the sold, below, action, its would Chicago proceeds distributed. Company Trust Title and co-defend- capacity pur- under its defendant’s ant mortgage chase-money in trust deed form. dismiss the filed a motion to Defendant government’s complaint, dis- judge cogently as- summarized this

trict pect defendant has record: “The setting its affidavit filed with motion an facts, plaintiff has forth additional presented which certain facts brief support I offers affidavit. will with- latter are correct assume requiring Since out a formal affidavit. pleadings have been matters outside the introduced, the motion will treated 12(c) sum- as a motion for under Rule mary disposed Rule 56 Civ.Proc. 28 U.S. [Fed.Rules By parties filed Both briefs. C.].” decree, supported by memoran- final judge opinion, dum the trial allowed motion to dismiss com- fendants’ plaint. That decree before is now us. taxpayer’s solvency question of the No involved. fact, Chicago, Tieken, Atty., material issues we can U. Absent S. Robert listing Gen., Atty. sequential, Holland, present of events

Ill., Brian Asst. H. sig- bring sharp Justice, Dept, into relief Goetten, will Joseph F. U. S. timing: Stanley certain Zarky, Slack, nificance Hilbert Ellis N. P. completed pursuant contract entered work May 19,1947 —Deutsch Brewing February 14, Co. with Frederick’s into on question. improvements real estate This sworn 2,1947 lien. September his Illinois mechanics —Deutsch recorded legal description of the real es- of lien contained claim present appeal and stated the amount tate involved $8,286.00. of lien as County, Court of Cook

November 1947—Deutsch filed suit in the Circuit Illinois, equity, lien. Case his mechanics to foreclose 14529. No. 47C 13,1947

November of Internal an assessment —Commissioner Revenue made Brewing Co., $8,709.70 Frederick’s also known McAvoy Brewing owing Co., Inc., for income taxes year

for the 1947. 15,1947 November —Summons the lien suit served on foreclosure Fred- Brewing Company. erick’s 17,1947 Collector, list November —Assessment received the U. S. First

District, Illinois. against McAvoy Brewing Co., December —Assessments Collector

Inc., for: withholding (i) owing quarter, taxes for the 3rd 1947. $6,362.91. withholding (ii) owing quarter, for taxes the 4th 1947. $4,047.81. (iii) withholding owing quarter, taxes for 1st $2,312.55. 1948. 16,1948 [concerning December tax —Notice of assessments listed under supra] date December filed in Recorder’s of-

fice, County, Cook 111. 17,1948 December —Collector received assessment list. 17,1948 against McAvoy Brewing

December —Assessments Collector

for: (i) Act, Federal Insurance Contributions 26 U.S.C. § seq., owing quarter, et taxes for 3rd 1947. $911.17. (ii) Federal owing Insurance Contributions Act taxes quarter,

for 4th 1947. $245.41. (iii) Federal Insurance Contributions Act taxes ow- ing quarter, for 1st 1948. $520.22. (iv) Unemployment Federal Act, Tax 26 U.S.C. 1600 seq., owing year et $1,817.39. taxes for 22,1948 —Assessment list Collector, December received District, First 29,1948 —Notice December liens filed with Deeds, Recorder of Cook County, Illinois. April 28,1949 —Notice of Federal tax lien filed with Deeds, Recorder County, (Covering Cook Illinois. income taxes of 8.)R.T. April 28,1949 —Decree of foreclosure and sale entered in Deutsch’s case Judgment No. 47C 14529. entered in Deutsch, favor of materialman, $10,502.35. sale. 28,1949 Master’s —Date

June Deutseh, lien- Mechanic’s sold 28,1949 —Property in June $11,500 pursuant holder, public to decree auction 14529.1 No. 47C recorded to Deutseh and of sale issued September 22,1949 —Certificate County, Cook Illinois. approved 30,1949 By decree, Illinois sale

September its— Chancery. the Master Deutseh Brewing Inc., —McAvoy Co., 1,1949 shutdown. November assigned of to 27,1950 Yavitz. September his certificate sale —Deutseh redemp- Yavitz, in of September 28,1950 issued to the absence deed —Master’s tion. Master’s deed. 2,1950 —Yavitz recorded November conveyed property in to Emma 22,1952 —Yavitz and wife July Janninga. Janninga’s —Recording to of title date of transference 22,1952 July (one Brewing Co., of the defendants Bear Inc. White mortgage here). part purchase-money in trust deed A Chicago form, White Bear to Title and Trust grantor’s $31,000 note, was also to secure recorded purchase price by paid The total this defendant time. . .$36,000. White Bear was seeking property pro- to suit sold and 10,1953 —Government November distributed, filed below. ceeds 2 (men- appear- this total The amount. amounts According “Statement” to ing paragraphs through Judge’s in memoran- of District tioned government, complaint (R. 7-9) and the next to last sponsored dum) paragraph page plaintiff-appel- of motion opposing defendants’ brief its 27) (R. lant’s statement are of liens filed of exclusive were dismiss, notices complaint penalties due, or interest where and in its itemized assessments amounting $24,139.47. However, and, appears, total defendant- $16,217.46 appellees (R. admitted in their lien, amount answer in notice another 12) 28, 1949. that notices of to- April tax liens filed on $7,922.01 taling $25,359.16 government’s filed examining were in amounts But after including penalties. latter interest below, this we find complaint, filed exact amounts not unmentioned, to- are material is- to the while lien notice sues claimed, pleading, was before Court since the amount that amount tal penal- However, a exclusive interest and plus interest. $16,217.46 sug- proceeds ties exceeds amount still plaintiff’s brief marginal in the note from the foreclosure of material- explanation:3 gests an 26.)” lien, $11,500. (R. man’s memo- “Although Court’s District backdrop employment Mirrored not mention does randum facts, already shown, part dates and we have they taxes, nevertheless are 2. T.R. 26. This the statement chancery, referred complaint 1. A judge Illinois, County, in his the district “Memoran- of Cook Circuit dum.” v. Frederick Deutsch Fred W. entitled (T.R. 22). Company, Brewing et al. brief, p. 2. 3. Plaintiff's sup- following longing person.” sought be- relief plaintiff such plied.) low:4 any having Obviously, or did confer persons “That all generated property or claiming any § interest Britain, City rights property described States v. New hereinabove claims; L. required that their to submit arises, Ed. du- to and liens 520. When its of all claims the merits determined; finally provided rations are for in 3671:7 claiming persons and all the defendants specifically “Unless another date is subsequent them under them by law, fixed the lien shall arise at this action the commencement time the assessment list was received right, title of all foreclosed barred and the collector and shall continue until the interest, and claim or lien liability for such amount is satisfied thereof; part all becomes reason unenforceable plaintiff assessed taxes lien of this lapse (Italics ours.) time.” against prop- and enforced be established completely That a 3670 lien is not a complaint; erty that the in its described perpetual clamped upon automatic vise property ordered sold in accordance property belonging any person all lia practice law and the with the pay any tax, upon neglect ble to or re resulting from fund and that Court pay, fusal is clear from that al last distributed accord- be ordered such sale qualification ternative in 3671 § and § findings ing Court, in ac- of the 3672:8 rights and interests cordance with the “(a) Invalidity of lien without parties defendant in this suit and the notice. Such lien shall not be valid added.) United States.”- against any mortgagee, pledgee, (See: several cases Because there are purchaser, or creditor un- I) Appendix which on first blush seem to by til notice thereof has been filed adversely appeal, dispose de- of this the collector dissecting fendants, two we think struggle The priority for relative be revealing. asserted, will tween federal tax liens and other liens Lien I. The Government Tax by legislatures, usually created State is Revenue Section 8670 of the Internal staged in the environment of Fed those pressed of 19395 creates the lien Code statutory just eral because, sections cited by appeal: in this inter alia: “The effect of a in rela provision any person any tion to a pay “If liable to tax federal law for the neglects owing collection of pay debts or refuses to after the United same always demand, (including any States is question.” in- a the amount federal United terest, penalty, Security States amount, v. additional or Trust Sav. Bank, 1950, together any 47, tax, 49, 340 111, to such addition 71 S.Ct. 95 confronted, L.Ed. 53. costs that in accrue addition there- We are then, to) problem, though with the a lien in favor of the United elusive may be, rights it investigating all States this federal tax in property, personal, order to whether real or be- discover how dif- it 4. reprint prayer plaintiff’s 8. 53 amended, Stat. A full 53 Stat. complaint, presented (1952). 26 3672 in U.S.C. § our text. The section by had been amended § I.R.C.1939 (1952). 5. Stat. 26 U.S.C. 3670 § 53 c. and later , § Rev.Act of Statutes, the Revised Section 3466 of 6. c. 56 Stat. 798. For view of the (1875), legislative history § 31 U.S.C.A. § Rev.Stat. 191, § see the con express enactment is an of first curring opinion of Mr. Justice Jackson priority debts to the United States Security in United States v. Trust & Sav. the debtor insolvent. whenever Bank, 1950, 71 S.Ct. (1952). 95 L.Ed. 53. § U.S.C. Stat. all, -intrinsically, in mind basically, § at dinal rule when it enacted fers, or being priority a schedule lien created from a mechanic’s Thus, set forth therein. is stimulated the search statute. Indeed statutory must its here government’s each contested assertion per- depend to be on the time it attached lien is “considered federal tax despite choate.” This, and became initio.”9 fected ab Parenthetically, least, record must we of “a lien” recitation barren our awareness United v. Colot States nothing; rele- has said ta, 1955, 79 So.2d where the Su revealing statutory provisions, vant determining preme Mississippi, Court peculiar, special, superiority, inherent between a lien and mechanics singular dignity, characteristic 3670-lien, Britain relied New Indeed lien. attribute only- case, recently summarily re to be go merely and let it the word lien used United a terse versed order most words “Lien” like that. Supreme v. United Court. States States covering simply the outer Colotta, wrapped for

bundle of ideas been We have been the Clerk advised delivery auditors and readers. the-United ancestry and, French word.is respondents, Colotta, al., filed no et early usage, was to mean bond taken printed. brief record was not Justice Jdarshall manifested tie. Chief unopposed From our examination of the delivering opin- idea when a similar gov petition10 certiorari, Scott, 1827, reported as Rankin ion Colotta, ernment su States v. 177, L.Ed. 25 6 Wheat. U.S. pra, among we that reasons other find 592: urged granting for al the writ was the principle to be is believed “The leged Mississippi conflict between the gives prior pri- universal, a that lien Court’s, opinion report decision.11 and an prior claiih, to which entitled Kings County as United States Iron subject satisfaction,' out Works, Inc., Cir., 1955, 2 224 F.2d 232. intrinsically binds, unless the lien be Kings County are cited to We ease displaced by or. be. some defective government appeal now be party holding.it, which of the act Judge delivering Clark, fore us. Chief postpone him, law in a court of opinion Kings United States v. equity, subsequent to a claimant.” County Works, Inc., Cir., Iron 2 added.) (Italics question 224 F.2d 234 stated the for “ ** * disposition, involving as citing Indeed, quoting that after and the relative of a federal lien Scott, passage 12 from Rankin v. law”, and a mechanic’s lien under state 177, 179, 25 L.Ed. Wheat. ruling and the below: Minton, speaking for Justice Mr. City prior- “The district unanimous court United States v. court awarded ity Kings Britain, 81, 83, ‘purchaser’ protect- to of New ed from pur- said: federal unfiled prior that had this car- suant to I.R.C. think and as “We reply steps brief, p. tut no had teen talcen 9. Plaintiff’s 1. to or en- file such lien lien arose tefore force federal two, government’s page pe- 10. On (Emphasis supplied.) and was recorded." “Question tition, Presented” is: Mississippi 11. The a lien of the for United States “Whether de arising unpaid taxes, Colotta, federal under Sec- States v. cided 79 So.2d April 18, and 3671 of the Internal 474 on Rev- tions United States Kings County superior Works, Inc., .is to a stat- v. 2d 232 was Iron Code of 224 F. enue argued, utory lien mechanic’s accorded state before the Second Cir April 12, contractors, laborers and material- cuit and -that Court’s de law men, giving is dated June where contract rise cision performed been had mechanic’s belongs filing him and is its that the debt subject . virtue lienor levy as such. Coun- York in New mechanic’s Judge Furthermore, suit until such a August 27, 1947. ty on govern- brought, fact and amount of that concluded Abruzzo August un- final lien remain filing mechanic’s prior on ment’s feder- certain. This means that Kings County, re- Preferred where gen- purposes the lien is al tax state under N. sided, defective McKinney’s eral inchoate until such time.” Law, Consol. Y. Lien government Laws, 240 the Returning moment, peti- c. for a York in New filed certiorari, should also in United tion for filed prem- County, funds and where the point Colotta, supra, out we States v. D.C. were located. ises in page 7, stated: F.Supp. E.D.N.Y., The. the contracts under “While challenges government’s appeal respondent’s mechanics’ lien are as- Judge conclusion, as final Abruzzo’s completed before the serted were findings con- well his subordinate (December liens arose federal tax cerning me- the character (Decem- 1952) were recorded sufficiency of chanic’s respondents 1952), had nei- ber filing.” government’s the supplied.) ther recorded their contracts Mississippi Code Section 359 of the * * * King’s County, pendens core of the filed hard nor lis provided in this sentence 380 of case lies embedded notice Section * * opinion: Respondent Rein- the Second Circuit’s that Code *. ultimately hart filed contract on (ed. lists Fed- “Here the assessment * 31, 1952 re- December spondents August eral) prior were all received Long, so Chambless 21, 1947, when notices of the liens were reveals, far as the never record added. filed.” 224 F.2d 234. Italics no theirs. And record lis shows following passage Moreover the from pendens notice of either contract opinion, F.2d the Second Circuit’s 224 original (Italics anytime.” filed at spells out another difference be- text.) tween re- that case and the one we are Scovil, U. 348 viewing : part third S.Ct. 75 the S. trilogy up made of Acri and the the of reading “Our of the statutes and Ltd., Liverpool & London Ins. Globe that, the cases leads us to conclude government. by cases, relied purposes at least for of federal tax- said, Seovil, Minton in As Mr. Justice Kings ation, must be es- considered priority “the relative of a land volved sentially like the holder of an attach- for rent laws lord’s distress under the garnishment ment or a lien before it unpaid lien of Carolina South judgment. has matured into a The taxes due United States.” 348 U. by use of a trust fund rationale New 218, 75 nub of the S. S.Ct. The Sco give York in order to the mechanic’s by decision best vil described lienor kind this of lien own words: “The landlord had Court’s result of the severe or- restrictions mortgage, pledge, lien other than a a judgment dinarily imposed by that on law the * * * lien the distress of attachment debts. See N. Y. Civ- perfected lien was not in the federal il Practice Act 916. Until and un- § at the time the lien sense Government's less perfects lienor mechanic’s perfection is, course, of were filed.. Such rights filing by fund trust * * law a matter federal 348 timely civil action in accordance 220, 75 U.S. S.Ct. Law, 75 N. Y. Lien § brings paramount play contractor retains Britain into in- New though property choate, which, terest in question, so word rare 366 348, adversely suggests completeness.

usage, Section 91 L.Ed. to the State Illinois, civil of a as the Il- lienholder. There authorizes institution sued, sat- by suit, order to linois Director in one Labor gov- statutory respect courts, isfy its lien. State to enforce a must, unemployment ernment, lienholder, even contributions due lien lienholder, pur- Chicago and Textile Illinois Waste does the mere mechanics’ money remedy Company, allegedly debtor. in order to collect insolvent sue its accruing express by attempted of a Interest to defeat virtue lien. given tax secured a federal to federal tax on a debt through Congress quantity until an unknown Rev.Stat. remains § theory lien is foreclosed. U.S.C.A. § specific perfected. State’s was Michigan States, v. United applicable only insol- But 3466 is § cited U.S. debtors; relevancy vent it has no to the inapposite plaintiff, de us matter now under consideration. language that, spite. read on first some ago Story long wrote, rec- Mr. Justice government’s ing seemingly supports the ognizing federal the nonexistence of appeal. con position in this It was there law, pertinent common this trenchant realty local liens were tended that tax passage in United Bank States v. State given superiority, stat under state Carolina, 1832, of North 6 Pet. utes, ar a federal lien. That over 29, 35, 8 L.Ed. 308: because, gument rejected quickly “ * * * alia, inter payment “The * * * private attached to government, debts due to is. a acquisition prior interest to the prerogative of crown known well ” * * * the state in that * ** common The to the law ours), accordingly the Court States, however, claim of the United * ** simply said we need sovereign upon any does not stand Congress extent consider the to which prerogative, exclusively but is found- give, 315(a), or intended provisions the actual give, Int.Rev.Acts, page 253, to U.S.C.A. (Emphasis their oum statutes.” previous- priority to a federal lien over a supplied.) ly perfected state lien.” 317 U.S. Michigan Story’s thrust 303. The Justice words homage supremacy only parried by reading paid can a tortured case recognizing, Constitution, just simply has clause re- “ * writing do, frained from estab- a as we the into § by it did in a tax lien 3466. lishment of Whether § power power quite ‘To of its constitutional has the do so is beside exercise mark, speculate I, upon pol- lay of nor can collect Article the we and Taxes’. Michigan considerations, icy beyond Had been which are the Constitution.” our any otherwise, province in been event. it would have Section 3670 decided priorities. as to possible for a state its own real silent to make We think it superior left a federal tax should be undisturbed tax on facts estate the though appeal. in lattér lien involved this attached property first. particular we view it there As is no concerning lurking magic in familiar instance the word Another lien found in payments Surprisingly enough, from assets of a of whatever § 3670. disposed of in Peo about an debtor is said common mechanics lien lien, ple of fits a federal of Illinois ex rel. Gordon also unless State we are judicial Campbell, insert a to. rubic in (1952). | 12. 53 Stat. 26 U.S.C. demption, interest or other Lien The Mechanics IT. or the lot in such owner have of revision Act13 for to an Pursuant making of land time tract of at the liens, relating mechanics Illinois laws may subsequently such contract or Assembly:

passed State General superi- acquire therein, and shall right any of husband or to of dower Any person shall who “§ Provided, premises: express contracts, or or wife said any or contract * * * interest of such dower owner owner implied, with knowledge improvement of such land, one had with or a tract lot or give notice written or and did not has authorized owner whom such knowingly permitted improve- objection his or her to such contract thereof; making improve of, ment before improvement or taking fixtures, se- material, nor shall the curity by of additional same, furnish or sub-con- the contractor machinery, or forms apparatus or any a process of tractor be waiver used in the form work he virtue cement, lien which concrete where construction Act, waiver pur- unless made a this is used for like material or agreement parties; express altering, building, pose of or ornamenting any and lien shall attach house repairing or * * * date add- building, the contract.” or or other ed.) perform or serv- labor furnish or keeper, superintendent,-time ices as al- No shall contractor “§ otherwise, mechanic, or laborer against or lowed to such lien enforce repairing building, altering, or prejudice of credi- other ornamenting same; furnish or purchaser, tor or incumbrancer or fixtures, material, apparatus, ma- four after unless within months services, chinery, or forms labor or completion, ifor extra or additional process of form work used work is done or material is delivered concrete, cement construction where four after therefor within months * * * material is used or like completion such or addi- extra a known under this Act as *, ei- tional work he shall up- contractor, and shall have a lien bring ther suit to enforce his such or whole lot tract of therefor or shall file with the clerk adjoining adjacent land or and county in Court in the Circuit or tracts of land such owner lots building, which the erection or other constituting premises same charged improvement to be with the occupied or used in connection situated, lien, claim ver- place of such lot or tract of land as a himself, ified the affidavit of or business; agent or ease employee, residence which shall or more the contract related to two consist of brief statement buildings, contract, on two more lots or the balance after al- due land, upon lowing credits, sufficiently all tracts of such lots all improvements description lot, tracts of land and correct of the lots or identify him the amount due to thereon tracts of land to the same. for fixtures, may material, appa- Such claim any lien be such for for filed machinery, ratus, labor, made, time the services or contract is after and as to the owner be date the same and interest from any time This lien shall extend contract is made is due. after years fee, life, years, for for within two the com- or estate after right pletion any any contract, or re- said estate or the corn- other chap. 378, 533; Ill.Rev.Stat.1953, 1-39, Ill.App. 384, 351 135 N.E.2d S. §§ g. Schoenberg Mfg. Broadway chap. Hotel 1-39. See: e. Rob Co. v. §§ H.A. Co., 1953, Ill.App. Huntley Corp., & Blazier 259 ertson v. 368 any ceedings pletion despite prior fur- extra work or the Deutsch's recorda-

nishing any earlier, extra material there- tion lien. As we mentioned under, opinion, be to such and as owner this contains Deutsch’s claim legal any description on amended at time before attached, final No such shall which his lien decree. statement proper to the amount there- the basis for the recital claim and a defeated of, specific over an error or dollar Our because claimed. amount charging part any person canvass of the record to show how on fails claiming any spe- this the federal tax a lien lien was more therefor act, particular cific or shall that Deutsch’s lien. unless it be shown than overchangé unexplained We notice an such error made difference be- or is original defraud; $8,- tween Deutsch’s claim of intent nor any judgment, de- 286.00 and his for obtained there- such lien material be in, $10,502.35. proof is feated of lack There also because lag delivery marked time the first after between fed- material (November 17, 1947) thereof, actually eral entered into plaintiff’s building on No- of such im- commencement of suit construction or although judg- provement, vember which lead to it shown actually appealed. ment that such material was not used in the such construction of quite only way It is clear that the * * building improvement prevail can facts these “ (Italics ours.) reject rule, is us to have ‘the first ” right,’ Speaking 7, quoted in time first in reiterated of section above Act, Justice from Mr. Minton in United States the Illinois the State City Britain, 1954, Companies v. of New 347 noted in United Lock U.S. Volland, 1937, To v. 520 N.E.2d Ill. . persuade doing govern so, us in 305: among others, cases, ment us to cites provisions “These of the statute present Appendix I. From we legislative disclose a manifest intent analysis patent our it is all these remove, practicable, far as Appendix I, vary cases shown factu requirements technical as a material ally appeal. from instant Further element of the to enforce a more, support pri contended in lien, clarify questions valid and to ority “that doc no touching materiality steps ap trine of relation back can said prescribed by the statute. A salient ply preempt (Gov the federal lien” provision is that no lien de- shall be brief, 5). p. response ernment because er- unintentional feated inquiry why, referred, natural are * we * *" (Italics added.) ror. through reasoning, circular back to Unit Acri, 1955, III. Conclusions v. States 239; Scovil, 1955, S.Ct. United States v. singular appeal This reflects several 244; U.S. S.Ct. distinguishing characteristics in con- Liverpool Ins. & London already trast with cases discussed analyzed Appendix (i) and those I: acquired, appears lienholder the mechanic’s re- It trio cases that lien, by and commenced corded his foreclosure since a federal force of § mortgagee, first before the relevant suit assessment not “valid Collector, pledgee, purchaser, was received the U. list S. credi- ”* property (ii) long involved the since has tor the Court has taxpayer’s MaeAvoy left the hands and construed mean to also § that a Brewing completely (other arising Co. is divested of lienholder than one interest, (iii) through 3670) any perfected or who title the has not § any participate, qualifying manner, in fails not in his lien thus in did as a pro- “purchaser, Mechanic’s lien or foreclosure creditor” pri- Language virtually consequently to the federal rises identical with § 3678(a), ap- e., when at- ority irrespective i. of the time “to enforce lien” reasoning pears at- think such section 9 of Illinois stat- tached. We Congress governing de- intention to ute payment to Mechanics’ liens —“If tributes * * * priority prive con- lienholders State not be made (the) bring trary principle, first in time first to the contractor suit to en- * * right. wording makes § We think force invalid the three both the federal lien the government and Deutsch had exceptions by applicable has been classed until notice liens and force of the stat- bring were, respectively required, utes the collector. to (their) “to suit liens.” Clear- emerges actually ap- enforce What from this ly, simply these two liens had different competing liens, one, peal are the me- periods gestation. chanics lien held claimant was who mortgagee, judg- purchaser neither a or By its failure to show that government’s ment when the creditor taxpayer (Fredericks-MacAvoy Brew variously liens “arose on November ing) insolvent, brings plaintiff 1947, and 17 and December 22 of 1948” problem within the framework erected (Govt, brief, p. 2), and, other, fed- by passage this from United States upon eral liens not sued until November City Britain, 1954, of New 347 U.S. 367814, closely 1953. Section re- 85, 520: sembling reducing the method for an Il- insolvent, “When the debtor is judgment, pro- linois Mechanic’s lien to Congress expressly given priori- has vides, upon filing inter alia that ty payment of indebtedness a civil action in a S.U. District Court: “ * * * owing States, the United whether (a) to the lien of the enforce * * * otherwise, by secured liens or § (b) United States All *. Statutes, 3466 of the persons Revised having claiming (1946 ed.) C. U.S.C.A. rights § property § interest circumstance, 191. In that where property sought subjected to be * * * property all the of the debtor in- parties shall be made such volved, protected has proceedings brought court,” and be into by imposing federal revenues an ab- and also: priority. solute debtor Where the shall, “The said court term insolvent, Congress is not has failed parties duly next after the have been expressly provide pri- for federal proceedings, notified of unless * * * ority although the Unit- court, pro- otherwise ordered pursue ed States is free to the whole adjudicate ceed to all matters involv- property the debtor’s wherever finally ed therein and determine the State, having situated. The a lien up- merits of all claims to and liens only upon property within its bound- rights prop- on the aries, may beyond not reach erty and, question, in all cases state line to fasten its lien oth- where a claim or interest property. er The record not does established, therein is taxpayer establish that the decree sale of such case was insolvent. rights property, by prop- court, follow, er officer of the a dis- however, “It does proceeds City’s tribution of the such lien must receive according findings sale a whole. We believe respect court in statutory to the interests of these liens is determin- parties principle and the United another law, States.” namely, ‘the first in time is the first (a-c) chap. 82, 53 Stat. Ill.Rev.Stat.1953, 26 U.S.O. § SJ3. (1952). chap. A. Story. Foot- right’.” Mr. Justice We are unable added. omitted.) view 8670 a citadel for * * * Judge attachment (dissent- The LINDLEY, Circuit property attached all real ing). years period the date after of three Security Trust discharg- levy unless sooner released Executor, Savings Bank, ** Ann.Code Civ. West’s Court, com- after Proc. 542a. question of with the was concerned menting classification a state court’s attach- a lien attached when though perfected, specific of a lien code. California writ under ment determining weight, pri- when entitled to provided that: “The That statute subject ority liens, “is of federal property at- on real attachment Court”, said, 340 reexamination re- effective and becomes taches * page 50, page 113: writ, cording copy of a gives attachment attach- “The that it attached and a notice proceed county no ment creditor county wherein recorder ** gets unless he *. is situate said real 372 years 353, exten- Co., States or within such v. Waddill 323 at

within three U.S. page 357, page provides. 304, 306, 89 Numerous 65 S.Ct. sion as contingencies statute the 294; might would As arise L.Ed. United States v. Gilbert sociates, 701, prevent 361, ever lien from 345 L. attachment U.S. 73 S.Ct. 97 the becoming judgment “Therefore, Ed. perfected 1071.” a It continued: desig the the attach- fact awarded recorded. Thus that the Ohio courts had inchoate— n nated contingent lien an attachment ‘an execution ment is lien pendens advance,’ merely Rempe Ravens, a a notice that v. 68 lis & Son 113, 282, 286, perfect Ohio It added: “Nor St. 67 N.E. to a lien exists.” and treat perfected ed attachment, it as a of can the doctrine by relation back—which lien at time the merges reasoning judicial process of does not bind this Court. judgment and We must lien in the look at the the-attachment circumstances as we judgment case, did lien the to relates the back Waddill the Vir where destroy ginia operate court to had date held a landlord’s lien attachment — fixed, specific, was When situation. and not the realities the inchoate.” It argument were concluded: pointed tax liens of United “In States was judg- recorded, out a that the Morrison did not have statute of California involv Security lien. mere ‘caveat a ed in the ment He had a Trust case differ was People perfect ent lien because more come.’ California courts had held an to. Maclay, 288 of New attachment to State v. lien be York inchoate a 290, 294, 323, 324, perfect 53 L. notice U.S. 77 mere come, of a S.Ct. more lien to Ed. 754.” I think this distinguished can not be case while Ohio courts had held it present one. In be an execution in advance and a lien perfected California lien of the attachment as of the time attachment. pur real This “attaches becomes ef- distinction is immaterial for recording poses fective” writ. federal law. This is not case distinguished In Illinois the méeharíicV claim of from United States Security v. Co., likewise becomes-effective record- & Trust Sav. 340 Bank ing reasoning Security 47, 111, U.S. 71 it. The 53, S.Ct. 95 L.Ed. judgment case, me, directly applica- the it seems to Reversed.” 348 U.S. at pages 213, present ble to the pages 241, 75 case. S.Ct. at Acri, 348 U.S. v. United States In Liverpool v. In United States Lon- writ had attachment 75 S.Ct. Co., 348 U.S. 75 don Ins. S.Ct. state court of that in Ohio. issued ques- concerned with was Court perfected aas writ treated garnish- relative tion of filed, Supreme This, f it was the time lien, ment writ had is- been said, issue identical made Court gave sued before the Government notice Security “The Trust case. that of lien for taxes. The district court United priority of lien of the relative garnisher superior held the lien of is, unpaid said taxes as we States that of the United States. The Court of Co., Waddill v. States United Appeals affirmed, Cir., F.2d 304, 306, 356, 357, 89 L.Ed. S.Ct. certiorari, On held People ex rel. 294; State question priorities was iden- Campbell, 329 U.S. v. Gordon Acri, tical with that United States v. 348; 345, 91 L.Ed. United S.Ct. Security v. and United States Trust & Security Trust & Bank Sav. Company, Sav. Bank and held the tax 340 U.S. garnishment. superior always a federal Scovil, finally United States v. the federal courts. determined liens, a landlord had of its levied a The state’s characterization al,l good'for. .state’.purposes, lien under South Carolina distress law while does necessarily tax lien had this Court. before a federal attached. bind not perfected there also be in the sense that reduced The claim nothing lien. more to done to have after notice until choate held that the lien—”. The Court the Government held that The Court priority statutory contested each prevail because must dependent upon Revenue was at- the time when it Internal Section question 220, page S. tached to saying, Code, 348 U.S. Citing opin- choate. had became its earlier page “The landlord 246: atCt. Security mortgage, pledge or ion in United States v. Trust & than a other lien judgment again liens, Co., Bank such Sav. it defined inchoate all As to other lien. case, liens which certain as instant become as the distress Code, amount, identity lienor, Internal Revenue 3672 of the protection. property subject only 3672, some no thereto affords U.S.C.A. § dealing subsequent Security Sav. time. The Trust & court was v. United States 111, City 47, 51, Co., two classes 71 S.Ct. of State Bank 340 U.S. claims, including opinion). 113, (concurring real estate tax liens and 95 L.Ed. 53 Associates, liens, water-rent and in the end remand- States v. Gilbert Cf. United 701, cause, saying, page 362-365, Inc., 361, ed the 73 S.Ct. 347 U.S. at 345 U.S. * * * 88, page 74 S.Ct. at 372: “Under the cir- 97 L.Ed. cumstances, only we vacate caveat of a more such a lien was Supreme perfect come, Court as we so often of Errors of Connect- icut and Se remand the United States v. case that court held other cases. supra; priority curity Co., to have determined the order of Bank Trust & Sav. asserted, Associates, Inc., of the various liens in accord- United States v. Gilbert opinion.” supra; ance with this case United States v. Waddill su latest Supreme 357-359, pra, pages Court is United v. S.Ct. 323 U.S. at Colotta, 306, 307; 350 U.S. People 76 S.Ct. of New revers- of State ing Colotta, Maclay, York States v. 79 So.2d 53 S.Ct. U.S. Supreme where the Court of Missis- 77 L.Ed. 754.” sippi had a mechanic’s lien su- declared City Brit- United States v. of New perior to the federal tax lien. Inasmuch ain, 347 U.S. 98 L.Ed. S.Ct. as the notice of a mechanic’s lien did not arose as to whether requirements give necessary fulfill the prevail the Government should over cer- it over the lien of the federal tain tax and water service liens of the by People tax fixed of State of ex city. liens, As to the tax the Connecticut Campbell, rel. Gordon v. provided statute real taxes that estate 363, 371, 375, 91 L.Ed. precedence “shall take all over transfers I prevail. think should and encumbrances.” The held that, though Er- Court of pendens argument The lis should fail holding city’s rors’ lien was also, think, I for the reason specific perfected was not conclusive merely attempt, under a different government, it ac- ¿he name, unperfect to assert of ah cepted holding city’s liens, Security ed lien. See United States v. they specific inasmuch as attached to Savings Bank, Trust pieces of real for the taxes as- 111, 95 L.Ed. 53. page sessed. The Court said 347 U.S. at judgment. page 74 S.Ct. at “The liens I would reverse the 369: notes tax lien when invulnerable the time barred ourselves not find we do Since taxpayer’s Deutsch’s lien to the attached prin- legislatively adherence to property. Al- Accord: States v. United ciple enunciated of time Co., Cir., bert Holman Lumber unreversed, case, we Britain still New 685; 206 F.2d States v. Martin seri- the most it. Of course follow will Fireproofing Corp., Cir., 1948, 168 F. Security accorded to be ous deference 2d 808. Liverpool Savings Bank, Acri Trust & position think While we defendant’s opinions, Ins. and Scovil London resting argument pendens their lis setting pre- yet factual we think unnecessary suggests some merit appeal, issue current sented point reach because the yield must rule of relative hereby appealed affirmed. Marshall, quot- reported Chief Justice Affirmed. and adumbrated ed in New Britain

Case Details

Case Name: The United States of America v. White Bear Brewing Co., Inc., and Chicago Title and Trust Company as Trustee

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 18, 1955

Citation: 227 F.2d 359

Docket Number: 11431_1

Court Abbreviation: 7th Cir.