Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 73-C-582 CALE J. HOLDER, Judge.
Swygert, Sprecher, and Tone, Circuit Judges.
This diversity action was brought by plaintiffs-appellants Harold T. Long and Wanda E. Long against defendants-appellees Hubert Anderson, Thomas Smith, and Monroe County, Indiana, Auditor Louise L. Goodman.*fn1 The Longs sought to quiet title against a tax deed issued to defendants Anderson and Smith in a lot located in the Geode Triangle Subdivision in Salt Creek Township. The question on appeal is the validity of this tax deed. The district court held the county auditor and county treasurer had sufficiently complied with the Indiana statutory requirements in their efforts to collect the taxes assessed against the real estate and in selling it at a tax sale. On that premise, the court ruled that the plaintiffs had not been deprived of their constitutional right to due process and that therefore they were not entitled to prevail in their quiet title action.
In light of Indiana case law, we hold that the district court erroneously ruled there had been sufficient compliance with the statutory provisions. Accordingly, we reverse.
The district court decided the case by summary judgment, the facts being undisputed. Harold and Wanda Long purchased the property in question on November 11, 1966 and had a warranty deed to the real estate recorded with the Monroe County Recorder on November 18, 1968.
Indiana law, I.C. 6-1-27-8, Burns Ann. Stat. 64-758, requires the auditor to keep a transfer book in which he "Shall enter a description, for the purpose of taxation . . ." of all lands that have been conveyed by deed. " With the date of the conveyance, names of parties, and the post-office address of the grantee or grantees, and he shall endorse on such deed or instrument of conveyance the words 'duly entered for taxation . . . '"*fn2 In the instant case the auditor stamped the plaintiffs' deed, "duly entered for taxation," but did not enter their address in the transfer book as required by the statute.
At the time of their purchase of the real estate the Longs were not residents of the State of Indiana; in fact, they have not resided in the state since July 1966. Although the auditor was not furnished with the grantees' address at the time the transfer was entered on the books, there were a number of sources from which their address could have been obtained. I.C. 6-1-52-2, Burns Ann. Stat. 64-2057, directs that tax statements shall be sent to the "last known address" of the person liable for the taxes.*fn3 Because the auditor's transfer book did not reflect plaintiffs' last known address, the tax statements were sent to the vacant lot. Naturally, the statements were returned undelivered by the United States Postal Service. As a result the plaintiffs did not pay the taxes assessed against the property during the period of their ownership.
In accordance with I.C. 6-1-56-1, Burns Ann. Stat. 64-2255, the Longs' property became eligible to be sold at public auction for delinquent taxes. In July 1971, purporting to comply with I.C. 6-1-56-3, Burns Ann. Stat. 64-2257, the auditor placed in the mail a certified notice of the tax sale to the Longs.*fn4 The notice was addressed to the plaintiffs at Rural Route 8, Bloomington, Indiana, where the vacant lot was located. The notice was not delivered and was returned to the auditor.*fn5 The delinquent taxes amounted to $38.57. The real estate was advertised for $66.14 and was sold at public auction to Anderson and Smith for $160.00.
Purporting to comply with I.C. 6-1-57-5, Burns Ann. Stat. 64-2280, the auditor mailed two notices to the plaintiffs advising them of their redemption rights.*fn6 One notice was addressed to the plaintiffs at Bloomington, Indiana, and the other to General Delivery, Nashville, Indiana. Both notices were returned by the United States Postal Service for lack of a proper address. In due course the tax deed was issued, and in November 1973 plaintiffs filed their quiet title action.
The trial court found that the auditor "complied with I.C. 6-1-27-8 as best she could under circumstances in which neither the grantors nor grantees supplied a proper address for the grantees."*fn7 The court further found that:
the plaintiff did not provide the Treasurer or the Auditor with their home address. In light of this fact, it is sufficient compliance that the tax statements were mailed to the address of the property being taxed . . .. The Auditor also complied with the requirements of I.C. 6-1-56-2, Burns Indiana Statutes Annotated 64-2256 and I.C. 6-1-56-3, Burns ...