Bertha Gold Mining & Milling Co. v. Burr

31 Colo. 264 | Colo. | 1903

Mr. Justice Gabbert

delivered the opinion of the court.

Sec. 3882a, 3 Mills’ Ann. Stats., provides that the treasurer shall give notice of the sale of real property by publication in a newspaper, and-also by notice posted in a conspicuous place on-or near the outer door of the office or building commonly used as the office of the treasurer. For the purpose of proving that such notice has been published, sec. 3884, 2 Mills’ Ann. Stats., directs the form of affidavit which shall be made by the publisher of the newspaper in which such notice is published, and that this affidavit shall be filed with the treasurer. Sec. 3885, 2 Mills ’ Ann. Stats., directs that the county treasurer shall make, or cause to be made, an affidavit of the posting of the notice required by sec. 3883a, supra, which, with the one to be furnished by the publisher, shall be deposited with the county clerk, “to be there carefully preserved. ’ ’

The sole purpose of requiring the deposit of these affidavits with the county clerk is to preserve and furnish proof that the requisite notices of the sales of property for delinquent taxes were given in the manner required by law, when that question becomes material.—Rustin v. M. & M. Tunnel Co., 23 Colo. 351. The law does not require them to be filed at any particular time, nor does it declare that the failure to file them before the issuance of a tax deed shall render such deed invalid. Except in case of loss they constitute the only competent evidence of those facts which they are intended to establish.—Rustin v. M. & M. Tunnel Co., supra. Proof that they were not on file with the county, clerk would prima facie establish the tax deed invalid, not, however, upon the ground that they had not been filed, but because their absence would be prima facie proof that the requisite notices of sale had not been given.—Charlton v. Kelly, 24 Colo. 273. The omission to file them cannot injuriously affect the rights of the owner of the property sold. They are not intended for his examination for the purpose of ascertaining whether or not his property has been sold, and if sold, when the time for redemption will expire, because the revenue law lias made ample provision for a record of tax sales in the office of the county clerk from which the owner can much more readily obtain such information than from affidavits of posting and publication which would be merely pigeon-holed. — Sec. 3893, 2 Mills’ Ann. Stats. It is apparent, therefore, that the failure to file such affidavits cannot in any event prejudice the rights of the owner; that they only become material when the question of requisite notice of sale is in issue, and if they are filed when it becomes necessary to prove that fact, they have then served their sole purpose.

The judgment of the district court is reversed.

Judgment reversed.