528
Opinion of the Court
Romani Industries' choate lien on the property in Cambria County.
Second, and of greater importance, in his opinion for the Court in the Conard case, which was joined by Justice Washington, the author of Thelusson,13 Justice Story explained why that holding was fully consistent with his interpretation of the text of the priority statute:
"The real ground of the decision, was, that the judgment creditor had never perfected his title, by any execution and levy on the Sedgely estate; that he had acquired no title to the proceeds as his property, and that if the proceeds were to be deemed general funds of the debtor, the priority of the United States to payment had attached against all other creditors; and that a mere potential lien on land, did not carry a legal title to the proceeds of a sale, made under an adverse execution. This is the manner in which this case has been understood, by the Judges who concurred in the decision; and it is obvious, that it established no such proposition, as that a specific and perfected lien, can be displaced by the mere priority of the United States; since that priority is not of itself equivalent to a lien." Conard, 1 Pet., at 444.14
The Government also relies upon dicta from our opinion in United States v. Key, 397 U. S., at 324-325, which quoted from our earlier opinion in United States v. Emory, 314 U. S., at 433: "Only the plainest inconsistency would warrant our
13 Justice Washington's opinion for this Court in Thelusson affirmed, and was essentially the same as, his own opinion delivered in the Circuit Court as a Circuit Justice. 2 Wheat., at 426, n. h.
14 Relying on this and several other cases, in 1857 the Attorney General of the United States issued an opinion concluding that Thelusson "has been distinctly overruled" and that the priority of the United States under this statute "will not reach back over any lien, whether it be general or specific." 9 Op. Atty. Gen. 28, 29. See also Kennedy 908-911 (advancing this same interpretation of the early priority Act decisions).
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