concurring specially: The majority mandates the award of the- escrowed funds to the plaintiff bank. It bases this holding on the absence of constitutionally adequate notice to the plaintiff bank of the termination of the right of redemption and of the impending tax lien deed. The majority requires notice to mortgagees beyond the notice of the execution of the tax lien required by RSA 80:65. Such statutory notice was provided in this case. The expanded notice requirement is effective for the parties in this case, for parties in other pending cases, and, presumably, for parties in cases yet to *329arise based on defective notice hereafter given. I agree that the plaintiff bank is entitled to the escrowed funds but am unable to agree with the path to this result.
I would find the statutory notice adequate. The mortgagee is afforded notice of the existence of the tax lien within forty-five days of its execution. RSA 80:65 (1991). Any subsequent mortgagee is given notice of the existence of the tax lien by virtue of the mandatory recording. RSA 80:64. The statutory scheme envisions that the lien be held by the taxing authority, RSA 80:63, that the lien be held subject to the right of redemption, RSA 80:69, and that this right of redemption exist for two years, after which time the right may be terminated by a deed to the lienholder of the land subject to the lien. RSA 80:76. Although notice of the pending deeding must be given to the current owner, RSA 80:77, no similar notice is required to be given to the mortgagee. Such mortgagee notice might be desirable, but its absence is not fundamentally unfair or unconstitutional. The mortgagee is clearly notified that taxes have not been paid and that a lien has been executed. This is notice that a statutory procedure of tax collection enforcement is underway and the mortgagee is subject to the results of that procedure.
The notice and fairness language in the cases cited by the majority all involve situations where the complaining party had no notice of the tax sale (the equivalent to this execution of the tax lien). These cases do not hold that two notices are required. In Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983), the issue related to a mortgagee who was found not to have received sufficient notice of a tax sale when notice was afforded by posting and publication. The Supreme Court did not reach the issue of second stage notice of the right of redemption prior to the tax deed execution. Id. at 800 n.6. White v. Lee, 124 N.H. 69, 470 A.2d 849 (1983), was a class action facial challenge to the constitutionality of the tax sale procedure and reached this court on transferred questions. The initiating plaintiffs had acquired the taxed property between the assessment date and the tax sale date and received no notice of the tax due, the tax sale, or the tax deeding. The transferred questions reached by this court were questions of general application, involving statutory and constitutional interpretation. This court found the tax sale procedure constitutional. The court noted, and relied on, the then-recently enacted statutory requirement that notice be given to the current owner of pending deeding. Id. at 77, 470 A.2d at 854. Kakris v. Montbleau, 133 N.H. 166, 575 A.2d 1293 (1990), also involved the issue of no notice to an owner and confirmed the practice of tax sales noticed to “owner *330unknown” when the taxing authority, despite reasonable efforts, does not know the identity of the owner.
Although some language in these opinions may give comfort to a holding of constitutional defect, the results are hardly supportive of that position. Due process is notice of the pendency of the procedure in a manner calculated to permit interested parties to act. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Such notice was provided to the plaintiff bank. The majority would impose a duty of second stage notice, another reminder before the course of the statutory tax lien procedure reaches its final outcome. This is the precise issue reserved in Mennonite, and I would hold that it is not required by our constitution.
Charging the tax collectors of this State with this constitutional notice burden, over and above the statutory notice burden, also entails some practical problems that should be considered.
The first is the status of land titles subject to already existing notice defects. Property acquired by tax lien deed is often sold by the taxing authority to good faith purchasers who have relied on the tax lien statutes in judging the validity of the titles they have acquired. The majority says that we will not apply due process fairness retrospectively. Past impacted mortgagees, who have not yet complained of defective notice, will not be afforded fairness. This will avoid land title problems in those tax lien sales that have been held without challenge, but leaves us with constitutional abuses that will not be corrected. Further, to the extent other pending cases exist, there are bad titles in the marketplace that are burdened by the preserved mortgages.
Second, another trap for the unwary has been set. Presumably the legislature will amend RSA 80:77 to include notice of pending deeding to existing mortgagees, and the able municipal law advisers in this State will notify the many and varied tax collectors of the requirements imposed by our decision, but this is one more step that will imperil land titles in the future.
Third, we and the Mennonite court have been sensitive to the burden imposed on tax collectors. See Mennonite, 462 U.S. 791; White, 124 N.H. 69, 470 A.2d 849. The second stage notice proposed will not be accomplished merely by sending notice to the first stage mortgagee. Mortgages in today’s economy are regularly transferred in financial markets. Transfers would not be uncommon in the approx-' imately two-year period between first and second stage notice. To meet the burden of second stage notice, the tax collector must examine the registry of deeds for transfers.
*331Finally, the majority holds that the failure of this second stage notice will cause the mortgage to survive the tax deed. It avoids this consequence in this case by construing the stipulation on the es-crowed funds as a waiver of the mortgage priority. In other cases, however, the tax lien deeds will extinguish the lien and substitute a tax title, subject to the mortgage. The mortgagee will have first claim to any proceeds from a sale to a subsequent purchaser, and the taxing authority must answer to any purchaser of the tax title, still encumbered by the mortgage, based on any warranties in that sale.
Although I would reject the plaintiff bank’s claim of inadequate notice, I am impressed with its claim of taking without just compensation. The tax collection structure, in the light of the respective State and federal taking clauses, N.H. Const., pt. I, art. 12; U.S. Const., amend. V, should provide for collection of taxes, charges and any reasonable penalties, but avoid forfeiture. The tax sale procedure directly avoids the forfeiture problem by providing that a sufficient undivided interest in the taxed property be sold to satisfy the taxes due, together with charges. RSA 80:24; see White v. Town of Wolfeboro, 131 N.H. 1, 551 A.2d 514 (1988); Laws 1989, 402:1. The alternate tax lien procedure, enacted in 1987, states that the lien will be imposed on the entire taxed property. RSA 80:61. But what can be taken constitutionally under the lien? Is all of the liened property forfeitable in foreclosure of the lien, or only that part necessary to satisfy the obligation secured? A “lien” is defined as a charge or encumbrance on property to secure the payment of a debt or obligation. Black’s Law Dictionary 922 (6th ed. 1990). The debt or obligation under the tax lien statutes is liquidated and easily determinable. Should we not hold that the tax lien deeding may only satisfy the lien and not provide for a fattening of the taxing authority’s treasury? The right to property is a fundamental right under our constitution, and it is so specific that it limits all subsequent express grants of power. Burrows v. City of Keene, 121 N.H. 590, 596, 432 A.2d 15, 18 (1981). May the taxing power include an arbitrary forfeiture, a movement of property to the State without just compensation? I think not, and instead would subscribe to an interpretation of the tax lien enforcement provisions that would satisfy these constitutional objections by limiting recovery to the obligation secured by the lien. White v. Lee, 124 N.H. at 77-78, 470 A.2d at 854-55 (1983).
There is mixed authority on the constitutionality of statutory forfeiture in tax enforcement proceedings. The first, and weightiest, authority, since our consideration is under our State Constitution, is Spurgias v. Morrissette, 109 N.H. 275, 249 A.2d 685 (1969). This case *332upheld our tax sale procedure and stated that the taxing town can keep the full proceeds without duty to account. It pointed out that the tax sale procedure is designed to collect only taxes. Since there was no evidence of lower undivided ownership bids, the incidental excess arising from a fair procedure did not trigger an accounting. Spurgias did not directly address the takings issue.
An analysis under the Federal Constitution exists in Nelson v. New York City, 352 U.S. 103 (1956). In Nelson, a takings claim by a property owner, who had incurred a substantial forfeiture under a New York tax lien foreclosure, was rejected by the Court. The basis for the holding was that the foreclosure procedure, although somewhat summary, permitted opportunity to recover the excess value over taxes by appropriate taxpayer action. The Court noted that the constitutional charge in United States v. Lawton, 110 U.S. 146, 150 (1884), “[t]o withhold the surplus from the owner would be to violate the Fifth Amendment to the Constitution and to deprive him of his property without due process of law,” is dicta, since both the Lawton and the Nelson statutes do not “absolutely” preclude the owner from obtaining the surplus. Nelson, 352 U.S. at 110. Our neighbors in Maine have found no problem in the forfeiture of a large excess under a summary and automatic foreclosure procedure. City of Auburn v. Mandarelli, 320 A.2d 22 (Me. 1974). Vermont, on the other hand, confirms the sale against constitutional challenge, but requires accounting for the excess to preserve the statute under constitutional scrutiny. Bogie v. Town of Barnet, 129 Vt. 46, 270 A.2d 898 (1970).
Thus, I would find the notice adequate, but would hold that the statutory alternative tax lien procedure is constitutional only if it is read to provide for taking of the taxable property only to the extent of the lien. Following the tax lien deeding for a period not barred by laches, I would permit an interested party, owner, mortgagee, attaching creditor, mechanic’s lien holder, or other party having rights in the deeded real estate to petition in equity for an accounting by the taxing authority and for the return, in priority and as equitable, of a sum equal to the excess of the land value, at the time of taking, over the amount of the taxes and charges accrued at taking. Such a construction, combined with the supplementary procedure, would permit the statutory procedure to withstand constitutional challenge and would provide for collection of taxes properly due and for the integrity of titles conveyed by tax lien deed.
On this basis, I agree with the remand.
Thayer, J., joins in the special concurrence.