dissenting.
Today's decision holds that "former owner" as used in IC 6-1.1-25-6 (Burns Code Ed.1984) means "owner of record at the time notice of the impending tax deed is required to be sent." (Majority opinion, p. 576). I would agree if we were construing the predecessor statute and its notice requirements. That former version, as noted by the majority, required notice after the tax sale to be given of the impending tax deed. It required that such notice be given to the "owner or owners of record ... on the date such written notice is prepared." (Majority opinion, p. 578). The Indiana General Assembly, however, substantially changed the requirements of that notice requirement by enacting the present version of the statute.
1.0. 6-1.1-24-4 (Burns Code Ed.1984), the statute which requires notice of an impending tax sale, dictates that such notice be sent to the "owner or owners of the real property." Use of the words "former owner" with regard to the person entitled to notice after the tax sale should not be considered a meaningless choice of words. That legislative phrasing has significance to me and should be interpreted to refer to the owner prior to the tax sale and not to whomever might appear as the owner of *580record after the tax sale but prior to delivery of the tax deed. To construe the provision as does the majority here, is to totally disregard the word "former."
The nature of the amendment leads me to the conclusion that the legislature intended that a search of the ownership records need not be made to determine whether the record owner at the time of the tax sale might possibly have conveyed his interest. It indicates to me that it was intended to give notice to the record owner at the time of the tax sale that the tax sale has in fact taken place and that unless action is taken prior to delivery of the tax deed, his redemption rights will be lost.
The statute in question permits the notice of the impending tax deed to be given on any one of thirty (80) days, i.e., not more than sixty (60) nor less than thirty (80) days before delivery of the deed.
If the auditor were to send out the notice sixty (60) days before delivery of the tax deed, and if the record owner as of that date were the same as the record owner as of the date of the tax sale, a subsequent grantee under the majority's interpretation would not receive, nor be entitled to notice. If such subsequent grantee obtained title within the thirty (80) day period following notice he would not be protected. I do not believe that the legislature intended the thirty (80) day administrative flexibility, with reference to the giving of notice, to affect the identity of the person entitled to such notice. Again, I necessarily conclude that the legislature intended a "make sure" second notice be given to the owner of record at the time of the tax sale.
My assessment of the legislative intent is made with acknowledgment of two arguably conflicting factors.
First, I am unable to totally reconcile the present use of the term "former owner" with the provisions of I.C. 6-1.1-24-9 (Burns Code Ed.1984) which do not state that the tax sale purchaser obtains ownership or title but state that he is entitled to a certificate of sale and a lien against the property for the amount that he has paid. I know of no preclusion against one having an "ownership" interest from holding a lien against the property itself. Yet the "lien" -"former owner" language is not entirely consistent. In any event the lien interest created here, affords the tax sale purchaser security for the amount paid at the tax sale in preference to all other prior lien-holders. It is at least arguable that this statutory protection was not intended to affect the notice provisions of I.C. 6-1.1-25-6.
On the other hand, the fact that the Fieldses might have protected themselves by a reasonably prompt recordation of their deed could suggest that they should not be permitted to defeat the tax title of Evans by resort to a technical interpretation of the statute.
I have no doubt that the admittedly defective notice to the Winchesters of the impending tax sale was no notice at all. I have no doubt that as between the Winchesters and the Fieldses, the Fieldses owned the real estate at the time of the tax sale as well as at the time of delivery of the tax deed to Evans. It is also apparent that the tax delinquency was of record at the time Fieldses received their deed from the Winchesters; and that at the time Fieldses finally recorded their deed, within the redemption period, the certificate of tax sale was of record.
These factors bear only upon whether the statute in question can be improved upon. They do not compel or permit an interpretation which, in my view, is contrary to the legislative intendment of the language used in the statute itself.
It is for the General Assembly to smooth out the rough edges of this statutory scheme. It is not for us to write a better or more fair statute.
For these reasons, I dissent.