ON REHEARING
*299George H. Layman, Newberg, and Ernest J. Burrows, Portland, for plaintiff-respondent and cross-appellant. Before Warner, Chief Justice, and Rossman, Lusk, Brand, Latourette and Perry, Justices.On Petition eor Rehearing
ROSSMAN, J.The plaintiff, who was cross-appellant, has submitted a petition for a rehearing in which he requests us to give further consideration to the priority issue determined in our former opinion and to make a specific finding as to priority between his mechanic’s lien and the state’s tax lien.
The question as to priority between the mechanic’s lien and the state’s tax lien was not before us when we wrote our former opinion. In his complaint petitioner had prayed for a decree adjudging his lien to be prior to those of the state tax commission and the federal government. The defendant state tax commission answered as follows:
“Wherefore, defendants * * * join with plaintiff in his prayer that the property * * * be sold upon foreclosure and that the proceeds of such sale be first applied in satisfaction of plaintiff’s lien, costs and disbursements * *
*300On argument before this court, counsel for petitioner, when asked what were the issues between petitioner and the tax commission, stated:
“We’re completely in accord. The state concedes that we have priority over them and we both take the position that our liens are prior to the government lien.”
The decree of the circuit court adjudged that petitioner’s lien was subsequent to that of the federal government and prior to that of the tax commission. Petitioner’s priority over the tax commission was not submitted to us on appeal. Therefore, the effect of our decision, holding the lien of the state tax commission to be prior to that of the federal government, left undisturbed the priority between the commission and the petitioner.
In our former opinion we relied on United States v. Acri, 348 US 211, 75 S Ct 239, 99 L ed 264; United States v. Liverpool & London Ins. Co., 348 US 215, 75 S Ct 247, 99 L ed 268; United States v. Scovil, 348 US 218, 75 S Ct 244, 99 L ed 271; and United States v. Colotta, 350 US 808, for our holding that petitioner’s lien is subordinate to that of the federal government. Only the Colotta case involved a mechanic’s lien; its decision was manifested by a memorandum opinion which granted certiorari and reversed the Mississippi court’s holding in favor of the priority of the mechanic’s lien. See, to like effect, United States v. White Bear Brewing Co., Inc., 76 S. Ct. 646. Petitioner stresses United States v. Griffin-Moore Lumber Co., 62 So2d 589, and United States v. Holman Lumber Co., 206 F2d 685, which involved fact situations substantially the same as the one at bar and which granted priority to the mechanic’s liens. Those cases were not appealed to the Supreme Court. In arriving at our *301former opinion we did not follow those decisions because the general language employed by the Supreme Court in the cases cited above seemed to control the case at bar. In the Acri case, which involved an attachment lien, the court said that the lien, so far as federal tax purposes were concerned, was “an inchoate lien because, at the time the attachment issued, the fact and the amount of the lien were contingent upon the outcome of the suit for damages.” Similarly, in the instant case, when the petitioner filed his lien notice, the fact and the amount of the lien were contingent upon the outcome of a suit for foreclosure. See Illinois v. Campbell, 329 US 362, 67 S Ct 340, 91 L ed 348.
We applied the reasoning in United States v. New Britain, 347 US 81, 74 S Ct 367, 98 L ed 520, in support of our conclusion that the tax commission had priority over the federal government, and we believe that that case represents the limit of validity which a lien, instituted prior in time to the federal lien, will be given in the present state of the law. There, the Supreme Court pointed out that the liens asserted by the city required nothing more to be done in regard to any of them to make them choate; that is, to have the force of a judgment, against the specific property. In the case at bar, the petitioner’s lien remained something less than analogous to a judgment prior to foreclosure.
Finally, in view of the issues between the parties and the issue presented to us, our former opinion could have had no adverse effect on petitioner’s interests.
The petition is denied.