is levied on property of a tax-payer subsequent to the period when the roll comes into the hands of the officer for collection, the lien acquired by the State is superior to the execution, and the lien attaches so soon as the officer receives the roll. The doctrine asserted in 3 Abb. Ct. App. Dec. 243, was substantially approved in Missouri, where the statute gave no specific lien for taxes on personalty, and the debtor had made an assignment for the benefit of creditors. While it was not contended that the assignment discharged the taxes, it was claimed that they could only be recovered by a suit in equity to administer the trust. But it was held that the State had a lien superior to that of the creditor, which was not discharged by an assignment by the debtor for the benefit of his creditors, and the collector was authorized to seize and sell the property in the hands of the assignee. The property was to be regarded pro hac vice as that of the assignor. The court seemed to doubt whether the lien was one that would follow the property into ⚫the hands of a bona fide purchaser for value, but regarded it as a quasi lien that attached to the property until it encounters a higher equity.2

The liens here spoken of are liens on the personal property of the tax-payer for his taxes, whether due on real or personal estate, for as a general rule all taxes are contributions by the citizen, and not by the property. The demand is a personal one, and the roll, which is in lieu of an execution, is a lien on all the personal estate of the taxpayer. But it is not true as a general proposition that the tax on personalty, or any tax other than a tax on land, is a lien on real estate. And when the statute makes by one section the assessment a lien on all the personal property of persons owing taxes, and by another section makes it a lien on real estate, the latter will not be so construed as to make the taxes on personal property a lien on the land of the tax-payer in the hands of a person purchasing such lands subsequent to the assessment, unless such purchaser had actual notice of the lien.s

In Mississippi the doctrine is not recognized that there is a lien on personalty for taxes without express provision by statute. A statute in that State declares, that "taxes imposed by this act shall be preferred to all payments, executions, incumbrances and liens of any description whatever, and they shall be from the first day of March. in each and every year, a lien upon all real estate of the person assessed within the county in which the assessments are made." An

1 McNeill v. Farneman, 37 Ind. 203. 3 Schaeffer v. People, 60 Ill. 179.

2 Phillips v. Rouse, 49 Mo. 586.

assignment of choses in action was made on the 25th of May, and the levy or notice of the collector was served on the 31st of May, and the assignment was sustained. It was said that no lien is given by this act except on real estate. The distinction was taken between a lien which attaches to property and follows it in its transmission to others, and preference in the appropriation of the proceeds of the debtor's property. The statute was construed to give merely a preference to the State, similar to that given to the United States by ch. 128, § 65, of the act of 1799, which declared that in all cases of insolvency, or where any estate in the hands of a personal representative is insufficient to pay all debts due by the deceased, the debts due to the United States shall be first satisfied. The right of the United States under this statute was not a right which supersedes and overrules the assignment of a debtor as to any property which the United States may afterwards elect to take in execution, so as to prevent such property from passing by virtue of such assignment; it was a right of prior payment, out of the general funds of the debtor. In construing this Mississippi statute, the court relied upon the fact in ascertaining the intention of the legislature, that an express lien is created on real estate, while there are no express words as to personalty indicating an intention to make a difference as to the two classes of property. But they did not allude to the principle that the roll when in the hands of a collector has the force of an execution, and confined themselves "solely to the construction of the statute, and to the lien given by it.

express statute.

Real Estate.-There is no lien on real estate for taxes due on personal property, the poll tax, or license tax, unless it be created by There is a class of taxes which is only a lien on real estate, and for which there is no personal charge against the owner. Thus in the case of local assessments for paving and other improvements, which are supposed to increase the value of the property, the assessment is on account of the increased value of the land, and the tax is levied on the land as such, and its collection is similar to a proceeding in rem. There is no personal liability of the owner for such a tax.3

The lien which is to be treated now is not of this class. It is the lien for the tax assessed against the owner of real estate, measured by its value, and which is primarily a charge against the owner. This

1 Anderson v. State, 23 Miss. 495; affi'g Bailey v. Fuqua, 24 Miss. 497.

? Conrad v. Atlantic Ins. Co. 1 Pet. 386, 439.

3 Taylor v. Pa'mer, 31 Cal. 240; City of St. Louis v. Allen, 53 Mo. 44.

lien is created by statute, and is generally to be enforced only after it appears by the return of the collector that there are no personal effects out of which the tax can be satisfied. Usually the statute not only gives the lien, but fixes the day from which the lien is to take effect. Where no day is fixed upon which the lien is to commence, it takes effect on the day on which the assessment begins. The party who is the owner on that day is assessed with the land, and the lien which is given on the land attaches on that day. Although actually the assessment may take place several months after, yet when it is assessed it relates back to the initial day of the assessment, and the lien takes effect as of that day.1

In New York the assessors have between the first days of May and July to ascertain what persons and what property are taxable in their district, and the persons and property liable to assessment are those liable on the first of July. The roll is completed by the first of August, and is subject to correction until the second Tuesday in August, and on or before the first of September, it goes into the hands of the supervisors of the county, who levy the proper amount of tax on persons and property. A. sold a farm to B. on the first day of September, the tax was levied by the supervisors in November. B. paid the tax to the collector under an agreement with him that it was to be refunded if A. was legally liable to pay it. The deed contained covenants for quiet enjoyment. It was claimed that the tax was a tax upon the land and not on the person, and that B., being the owner of the land at the time the tax was levied by the supervisors, was liable for its payment; and it was further claimed that the tax was not a lien on the land until it was levied by the board of supervisors. These views were not sustained, the court holding that the tax was imposed on the person by reason of his ownership of the land; that there was no substantial distinction between real and personal property; that the person liable is he who was owner at the time of the completion and delivery of the roll; and that the lien which is given to enforce payment attaches to the land at the same time, and not at the time when the levy of the tax is made by the supervisors. The principle announced is, that it is the assessment which creates the liability to the tax, and the subsequent levy of tax by the supervisors relates back to the assessment, and to the initial day of the assessment, which would be July first. It is true the case just cited does

1 Cochran v. Gould, 106 Mass. 29; McLaren v. Sheble, 45 Mo. 130.

2 People v. Supervisors of Chenango, 11 N. Y. 563.

3 Rundell v. Lakey, 40 N. Y. 513, 517.

not decide that point, and that the time seemingly fixed by the court is the period when the roll is complete and delivered, which would be the first of August; but this language is used when fixing the liability to the tax as the period of assessment, when contradistinguished from the period of the levy of the tax, and not when speaking of the inception of the liability and the lien. For, as we have seen heretofore, personal property removed from the district after the first of July is still liable in that district, which which would not be the case if the liability did not attach until the completion and delivery of the roll, which would be on the first of August.1

So, also, in Minnesota, where the purchaser of lands sold for taxes is entitled to a lien for the purchase money, to be charged on the premises and enforced by action, the lien attaches when the land is assessed for taxes. Where the statute fixes the day on which the lien is to take effect, as on the first day of December, although the assessment may begin in May previous, and the persons chargeable are the owners in May, the lien does not attach until December, and the vendor of lands in a deed with general warranty made prior to the first of December, is not liable to the vendee for the taxes assessed in May. The vendor was chargeable with the taxes, and might have his goods distrained, but the lien did not attach to the land until the first of December. When he sold there was no lien, and consequently no breach of the covenant.3 The view of Christiancy, J., in the case last cited, was that the system of taxation in that State was both against the owner of the land and against the land in rem, and that

1 Mygatt v. Washburn, 15 N. Y. 316, 320; Nat. Bank of Chemung v. City of Elmira, 53 N. Y. 58. Since the composition of the text of this work, the case of Rundell v. Lakey has been discussed by the Court of Appeals of New York, and they place the decision of that case on the ground of the agreement of the parties, and not of the covenant in the deed. They thus distinguish that case from the one under consideration, which was a conveyance with covenant against incumbrance, on the 27th of October. The land was assessed in June, the roll completed in August, and the levy of the tax made by the supervisors on the ninth of November of the same year. The claim to recover here is founded solely in the breach of the covenant, that the premises are free and clear from all incumbrance whatsoever." This covenant, like that of seizin, if broken at all is broken as soon as the deed is executed, and the court decided that at that time there was no lien on the land for tax; that the tax was not imposed, and consequently could not be a charge until it was levied by the supervisors in November; that the assessment of the land, the review of the roll, and its completion, were only preliminary steps to the ascer tainment of the liability of the property placed on the roll, and the rate of tax to be paid thereon. Barlow et al. v. Saint Nicholas Nat. Bank, 63 N. Y. 399, 401. This case is said to be distinguished from Rundell v. Lakey, but it looks more like overruling it, certainly as to the reasoning of Grover, J., who delivered the opinion, and as to Hunt, Mason and James, JJ., it overrules their views.

The doctrine of this case, if correct, would not apply in those States where the legis lature fixes the rate of the tax, and the assessor merely ascertains the property subject to the tax, and its valuation, for when the property is ascertained, the rate being known, the charge would at once be created.

* Webb v. Bidwell, 15 Minn. 479.

Harrington v. Hilliard, 27 Mich. 271.

no statute was necessary to create a lien for the State under this system, nor would the right of the State be affected by any number of sales, and therefore he concluded that the statute fixing the lien was intended to regulate the rights of vendor and vendee.

These views as to the right of the State not being affected by subsequent sales, are sustained by a very strong case from Illinois, where the proceeding for the tax on the land is both against the person and the land in rem. A bank owning real estate conveyed it to an assignee. Suit was brought for the taxes on the land owned by the bank, and under the system in Illinois there was a judgment against the land as such for the taxes due on it. A suit was afterwards brought by the Bank of Missouri in the Circuit Court of the United States against the assignee of the bank in Illinois, and in that suit the banking house of the latter bank, and the lot on which it stood, which was the land in question, was sold. The purchaser at this sale was held liable for the tax on the banking house property, and the judgment for taxes was regarded as a lien on it that could be enforced. The property may be seized and sold notwithstanding incumbrances upon it prior to the judgment lien. Into whosesoever hands the land may pass, it goes with the condition that it is liable to contribute to the support of the government. The State is not bound to wait, in the case of a deceased person or an insolvent debtor, until the estate is administered, but may proceed to enforce payment exclusive of all other creditors. Whether the tax is against the land in rem, and the lien for it one fixed by statute on a particular day, or whether the lien attaches on the initial day of assessment, matters little to the State, for under either of these systems the land is liable to the State, and the tax may be enforced against it. The question of lien principally affects vendors and vendees. If the sale is before the period fixed by statute for the lien, or before the initial day of the assessment, the vendor cannot be made liable to the vendee for the taxes of the current year on the covenants in his deed.

This doctrine as to lien applies to trustees under trust deeds for the payment of debts. If the grantor pays taxes which are assessed on the land, but which have not become a lien, he may recover the amount so paid. In the case of Schmidt v. Smith, there was a covenant that the grantor or debtor would pay the taxes, and if he did not, the creditor might pay them and claim them as an increase of his debt. But this course was not pursued, and the trustee undertook to

2 Harrington v. Hilliard, 27 Mich. 271; Cochran v. Gould, 106 Mass. 29; McLaren v. Sheble, 45 Mo. 130; Rundell v. Lakey, 40 N. Y. 513, 517.