This case is before us on a rehearing. Our former opinion will be found, ante, p. 730, where the facts appear so fully that no additional statement is required.
It was urged by the defendants in support of the motion for a rehearing, and is now contended, that so much pf our former opinion as holds that the delivery of the *736tax books to the county treasurer, without the clerk’s warrant attached directing him to collect the taxes described therein, did not create a lien upon the personal property of the tax debtor; that the tax books mentioned in section 83 of the revenue law of 1879 (laws 1879, p. 306), now superseded by section 11040, Ann. St. 1907, are not the tax books, within the meaning of that section, without the clerk’s warrant attached thereto; and that so much of our judgment as restrains the defendant from collecting the taxes assessed against the Star Mills & Grain Company for the years 1892, 1893 and 1894, by levy and sale of the flouring mill and machinery formerly owned by that company, but now owned by the plaintiff, should be reversed.
After again considering this question, we are satisfied that the conclusion reached by our former opinion is correct. We believe, however, that some of the expressions contained therein should be modified. By section 139 of the revenue law of 1879 (laws 1879, p. 332), it was pror vided: “The taxes assessed upon personal property shall be a lien upon the personal property of the person assessed, from and after the time the tax books are received by the collector,” and it was said in our former opinion that the treasurer has no power to collect personal taxes without the warrant of the county clerk attached to the tax list. It is settled beyond question that the warrant is the authority for enforcing the collection of any and each particular tax of the list to which it is attached, when it becomes necessary to resort to any of the proceedings provided by law for that purpose. This, however, does not affect the right of the treasurer, when the tax list is in his hands, to receive and collect personal taxes without distress and sale; but, in order to authorize him to enforce collection by such proceedings, the clerk’s warrant must be attached to the tax list as his authority therefor. It has been held by a majority of the courts, and we think correctly so, that the levy of the tax, the making of the tax list, and the placing of the same in the *737hands of the county treasurer, creates what may be termed a general lien for the payment of the taxes described therein upon all of the personal property of each tax debtor, that this amounts in law to a judgment, and that the cleric’s warrant, which the statute provides shall be attached to the tax books, is in effect an execution. In order, however, to create a specific lien upon any of the property owned by a tax debtor, a distress warrant must be levied thereon.
It is conceded in this case that no warrant for the collection of the taxes was attached to the tax lists for the years 1892, 1893 and 1894, until some time in the year 1906. So, while the tax books and the tax proceedings may have constituted what may be called a general lien upon the property of the Star Mills & Grain Company, yet it was not such a lien as the tax collector could enforce. The treasurer could not at any time after the taxes in question were assessed and levied, and before the property of the Star Mills & Grain Company was sold to the plaintiff, have levied upon any of the property of the tax debtor, and thereby have rendered the lien specific. This being the case, a tona fide purchaser, which the plaintiff is conceded to be, of any of the property of the tax debtor would take the same discharged of any lien for the taxes of those years.
It is fundamental that taxes are not a lien either upon real or personal property unless made so by statute. The section of our former statute which created a lien for personal taxes was taken from, and is a literal copy of, the revenue law of the state of Illinois on that subject. It was said by the supreme court of that state in Gaar, Scott & Co. v. Hurd, 92 Ill. 315: “The mere assessment of taxes in respect of personal property will not create a lien upon such property. The warrant for the collection of such taxes will, however, become a lien upon the personal property of the person assessed, from the time it comes to the officer’s hands. But, if the party assessed *738should sell or mortgage the property before the warrant comes to the hands of the officer, the purchaser or mortgagee will be protected as against any subsequent seizure and sale of the property under such warrant for the taxes assessed against the vendor or mortgagor.” In Hill v. Figley, 23 Ill. 418, in speaking of the effect of the section in question, the supreme court of that state said: “It is true that the statute declares that the assessment shall be a lien from and after the delivery of the books to the collector. A lien upon what? * * * Not upon the property assessed for taxation, but upon his personal property. The language is manifestly broad enough to embrace, and we think does embrace, all of the. personal property which he owned at that time. We have no doubt that such was the intention of the legislature in adopting this provision. The object the legislature had in view was to secure the collection of the revenue, and, if the construction were given that the lien only extended to the specific articles assessed, the object would not be attained. The assessments are made in May and June, and the collector’s books do not come into the hands of the officer before November, so that with-traders and business men of the country all, or the greater portion, of the property assessed by them, in the interim, changes hands, and much of it is consumed. And with others, a large portion changes hands, is removed, or cannot be identified. If the lien is to be confined to the property assessed, by the same rule of construction, we must hold that it attaches to each article of property to the extent only of the amount of tax assessed upon it. This would lead to great perplexity and confusion, as each specific article of property is not, nor does the law require it to be, enumerated, with its value annexed. The amount of the tax on personal property is given in an aggregate sum on the collector’s books, and it would be impossible to ascertain the precise amount for which the books were a lien on each article. The legislature never could have designed to impose such difficulties in the collection of the revenue. *■ * * "We *739have no hesitation in believing that the legislature intended to bind all the personal property in the hands of the taxpayer, from the time the collector receives his warrant until it is paid, precisely as an execution binds the property of the debtor on its delivery to the officer.” It would therefore seem that the existence of an enforceable lien against the property of the tax debtor depends upon the fact that the tax books placed in the hands of the collector have attached thereto the clerk’s warrant. In Ream v. Stone, 102 Ill. 359, it was said: “It will thus be seen that the warrant is an indispensable part of the tax books, and that it is that which confers power upon the collector to levy and distrain for the payment of the tax. And so, in Hill v. Figley, 23 Ill. 418, we said: ‘We have no hesitation in believing that the legislature intended to bind all the personal property in the hands of the taxpayer, from the time the collector receives, his warrant until it is paid, precisely as an .execution binds the property of the debtor on its delivery to the officer.’ And again, in Binkert v. Wabash R. Co., 98 Ill. 218, we said: ‘When the tax books come to the collector’s hands, the personal taxes at once, and not before, just like an execution, become a lien upon the personal property which the person assessed then owns, without regard to what he may have owned when the assessment was made.’ And the same analogy requires us to hold that, if no levy shall be made by the expiration of the time within which the collector is required to make1 return, the warrant is officially dead, and then all liens which might have been, but were not, perfected by a levy, are gone. * * * It is here shown no warrants were annexed to the collector’s books for the years 1873, 1874 and 1875, and so no distress was nor could have been made for the taxes of those years. * * * Back taxes cannot be made a lien, any more than current- taxes, upon personal property, until the collector’s books, with a warrant authorizing their collection, is placed in the hands of the collector. * * * We held in Binkert v. Wabash R. Co., supra, and in Gaar, Scott & Co. v. Hard, 92 Ill. 315, that *740the purchaser of personal property, under mortgage sale, before a lien for the taxes had attached, took the property free of all claim for the taxes, and, inasmuch as no lien was here perfected upon the property before the purchase and possession by complainant, we cannot regard it as of consequence whether the mortgage was, or not, properly acknowledged as a chattel mortgage. It was certainly sufficient, where possession was obtained by a purchaser under it, as against subsequent claims.” In Woolsey v. Chamberlain Banking House, 70 Neb. 194, it was held that a lien of a chattel mortgage given after the taxes were levied, but before the tax books came into the hands of the collector, was superior to the lien of the taxes for that year. In that case the warrant was properly attached to the tax list when delivered to the county treasurer. In Grant v. Bartholomew, 57 Neb. 673, it was said: “The personal tax list, when delivered to the county treasurer, is analogous to a judgment, and to enable the treasurer to satisfy the tax — judgment—by the seizure of the personal property of the tax debtor, it is essential that the treasurer should be armed with the tax warrant, which in that case is liis execution.” From the foregoing authorities it seems clear that, Avhen, in the year 1901, the property of the Star' Hills & Grain Company, the tax debtor, Avas sold and delivered to the plaintiff, there was no énforceable tax lien existing against it, for the reason that no clerk’s warrant Avas attached to the tax lists then in the hands of the county treasurer. The plaintiff therefore took the property in question free and clear of any lien for personal taxes assessed against its former owner. It also seems clear to us that attaching the warrant to the tax list in question in the year 1906 created no lien against the property theretofore purchased by the plaintiff, and had no retroactive effect, so far as his rights are concerned.
For the foregoing reasons, our former judgment as herein modified is adhered to.
Judgment accordingly.
The following opinion on motion for second rehearing was filed October 8, 1908. Motion overruled: