dissenting.
Void is void, except when it’s merely voidable. If the tax sale deed in this case were void I would have little difficulty concurring in the result reached by the majority. But unfortunately and yet accurately, as Judge Sullivan explained for the court in Trook v. Lafayette Bank and Trust Co., 581 N.E.2d 941, 944 (Ind.Ct.App.1991) trans. denied, our appellate decisions often seem to use “void” and “voidable” interchangeably without regard for the important, if technical, distinctions in their meanings. If an instrument or judgment is void, it is of no effect whatever and is subject to collateral attack at any time. On the other hand, if an instrument or judgment is merely voidable, its deficiencies may be waived and it is subject only to direct, and not collateral, attack. A lack of jurisdiction of the particular case or lack of jurisdiction of the person (at least where the lack of jurisdiction does not appear on the face of the judgment) results in a judgment that is merely voidable. Id. On the other hand, a judgment rendered by a court lacking in general subject matter jurisdiction is void.
With that much said, we should turn attention to the statutes providing for the issuance of tax deeds. Without considering the decided cases seriatim I am willing to accept as conjecture that at least in some of the early tax deed decisions, the court meant that deficient deeds were actually void. The legislature has, however, in the current version of the statutes authorizing tax sales and tax deeds, clearly taken the position that erroneously issued deeds are merely voidable. That is the necessary implication of Indiana *322Code § 6-l.l-25-4.6(b). which provides that tax deeds are incontestable except by appeal from the order of the court directing issuance of the deed.' In addition, while the court in Kiskowski v. O’Hara, 622 N.E.2d 991 (Ind.Ct.App.1993) trans. denied, did not expressly address the question, it required the statutory procedure to be followed.
Giving due deference to the legislative purpose and applying our traditional analysis in differentiating between things void and voidable, it appears to me that the tax deed at issue here is merely voidable.
It follows then that the alleged defects in notice may be waived. I conclude that they have been.
Initially, I find that the Kessens are not entitled to the aid of equity. That is so because equity aids the vigilant and requires clean hands. At minimum the Kessens knew that the property in question was subject to real estate taxes, that they had moved from the Florida address to which notices had been sent in the past and that they were not, in fact, paying any real estate taxes .on the property in question. Thus, they have no particular standing in equity.
Because the tax statute spells out no procedure for the appeal that it recognizes, the trial court, relying upon Ball Stores, Inc. v. State Bd. of Tax Comm’rs, 262 Ind. 386, 316 N.E.2d 674, (1974) determined that the Trial Rules, specifically T.R. 60(B), applies. The Kiskowski court appears to have approved this approach, and I do not disagree.
The trial court found that the delay in commencing the direct attack pursuant to T.R. 60(B) was'too great. The tax deed was issued November 25, 1992. The “appeal” was commenced October 8, 1996. Kessens assert that they nevertheless commenced the appeal within a reasonable time pursuant to T.R. 60(B)(6) because the Journey’s Account Statute, Indiana- Code § 34-1-2-8, should permit them to treat the 1996 appeal as a continuation of the action to quiet title that they had commenced in June, 1994. The Grafts correctly point out that Indiana Code § 34-1-2-8 applies to plaintiffs. That is, it permits a plaintiff whose action fails for other than one of three- enumerated reasons, to again commence the action within three years of the first failure (or the last date available under the statute of limitations governing the original action). While Kessens were plaintiffs in the 1994 action, they stand in the shoes of defendants in appealing the judgment ordering the tax deed.
Even so, under the peculiar facts of this case it is arguable that for TR 60(B) purposes the long pendency of Kessens’ original suit and their promptness in commencing the “appeal” upon the dismissal of the original suit qualifies as a “reasonable time” even though Indiana Code § 34-1-2-8 does not apply. The argument does not, however, demonstrate an abuse of discretion by the trial court. More than a year and a half elapsed between the issuance of the tax deed and the commencement of Kessens’ quiet title action. Furthermore, throughout the entire period after issuance of the tax deed, the statute required that the deed could only be attacked through an appeal.1 The court could well have determined within its discretion that Kessens’ delay was not reasonable and we cannot say that an abuse of discretion was committed when the trial court so found.
Secondly, in order to be entitled to relief under T.R. 60(B) the claimant must present admissible evidence of a meritorious defense. Unlike the majority, I am unable to find such evidence in an order which has been vacated in a suit which was dismissed for want of jurisdiction.
One final point bears mention. Relying upon a' statement by our supreme court in K.S. v. R.S., 669 N.E.2d 399, 405 (Ind.1996) (DeBruler, J. dissenting) Grafts argue that since T.R. 60(B)(6) refers to judgments that are void, it is not available to attack proceedings that are merely voidable. I do not believe that was the court’s intent in K.S. An attack brought under T.R. 60 is a direct attack upon the judgment because, although belated, it nevertheless is a part of the original proceeding. If T.R. 60(B)(6) is not available to attack voidable judgments, then it is superfluous because a truly void judgment can be attacked- collaterally and at any time. *323I would construe T.R. 60(B)(6) to apply to judgments that are either void or voidable,
In sum I would find the tax deed voidable rather than void. While I would find that attacking the deed through T.R. 60 was proper, I would find that no abuse of discretion has been established in the determination that the motion was filed too late. I would affirm the trial court. Therefore, I respectfully dissent.
. See P.L. 83-1989, Sec. 15.