Giacobbi v. Hall , 109 Idaho 293 ( 1985 )

SHEPARD, Justice,

dissenting.

I believe the majority opinion today has the potential of raising havoc with the title to real property acquired by tax deed in all portions of the state of Idaho. In my view it unnecessarily imposes upon counties an obligation to comply with a standard which is neither defined nor articulated. Hence, I dissent.

For untold years, I.C. § 55-601 has defined a method of conveyancing of real property. In part it states, “the name of the grantee and his current address must appear on such instrument.” Rather clearly there was no legislative interest, purient or otherwise, in having the public records contain the address of real property owners except and because of one overriding need, i.e., to facilitate the collection of real property taxes, and in the event of their default, to serve notice on the record owner as to the tax deficiency and impending forfeiture for non-payment of taxes.

The defendant here acquired the property in question by deed and for whatever reason his then “current address,” contrary to the strictures of § 55-601, did not appear on the instrument of conveyance. Thereafter defendant Hall did not pay, and insofar as the record discloses made no attempt to inquire about or pay the real property taxes assessed and levied against said property. During all that period of time Hall evidently did not reside in Blaine County nor indeed within the state of Idaho, but rather in Aspen, Colorado.

The county treasurer made a tax delinquency entry in 1980 and in 1982, sending notice of pending issuance of tax deed to Hall by certified mail from the post office at Ketchum, Idaho. That notice was returned undelivered. Thereafter a notice of pending issuance of tax deed was published in the Wood River Journal for four consecutive weeks. Thereafter the county treasurer filed her affidavit of compliance, the county commissioners executed an order directing the issuance of a tax deed in favor of Blaine County, and the county treasurer so executed a tax deed conveying the property to Blaine County. Thereafter, the county commissioners ordered the property to be sold at public auction, and a notice thereof was also published in the local newspaper for four consecutive weeks. At that auction Giacobbi and Stanek were the successful bidders for the sum of $15,500.00, and a quit claim was issued to them which was recorded.

In spite of these elaborate and time-consuming procedures on behalf of the county officials, all as mandated by the relevant statutes, Hall complains that his constitutional rights to due process were violated and he should somehow be granted equitable relief against Giacobbi and Stanek by having the property restored to him. The record does not disclose that Hall has made any effort to tender into court any of the delinquent taxes, interest, penalties or costs.

Hall asserts, and the majority agrees, that all of the rights and interests of Giacobbi and Stanek must be set aside, whatever disabilities and liabilities they may have incurred must be ignored, and all county compliance with the relevant statutes be held for naught because Hall’s deed was recorded at the instance of a title company which knew of Hall’s whereabouts, and the county officials failed to inquire of that title company, and also because although Hall had executed a deed of trust to another title and trust company, and his signature had been acknowledged in Pitkin County, Colorado, the county treasurer had failed to make any inquiries concerning a Charles Hall in Pitkin County, Colorado. I disagree.

The documents on file in the county records consisted of the original deed to Hall, a deed of trust by Hall, and a reconveyance from a title company to Hall, one of which was executed in Colorado, one of which in the state of Washington, and one in the state of Idaho.

With all of the different entities and persons involved, it is facile in retrospect to suggest that the county treasurer might conclude that some of those persons or entities might know of the whereabouts of the delinquent taxpayer Hall. The majority dredges an answer for the instant case but fails to set any standard by which county officials may be guided in the future of their handling of thousands of tax deficiency notices issued each year within the state of Idaho. The majority herein dodges the real issue posed in the case by Hall, i.e., must a county treasurer in the course of conducting a “reasonable and diligent search and inquiry” go beyond the county records to determine the address of a delinquent taxpayer. The majority rather holds that since the record documents were filed at the instance of several title companies, and an after the fact determination reveals that one of them did know Hall’s address in Colorado, that the county treasurer should have inquired of that particular title company, and failure to do so was a failure to make a diligent search of the “county records.” I disagree.