concurring.
The court’s opinion seems to me to be sound and in harmony with modern judicial thought. There was a time when, notwithstanding the recitals in a tax deed showing compliance with the law, one claiming under the deed was required to present independent proof of the performance of all the conditions precedent to the issuance of the deed. That fact, coupled with the strict requirements of the law as pronounced by courts, made it so difficult to sustain tax titles as to discourage bidders at tax sales, and this was so detrimental to the public interest that legislatures and courts alike began to throw greater protection around purchasers at tax sales. Acts were passed to mitigate the hardships. Some provide that the recitals in tax deeds shall be prima facie evidence of the facts recited; others, that tax deeds shall be prima facie evidence of the regularity of the tax sale and of the validity of the deed; others, as in Colorado (C. L. §7426), that the deed shall be prima facie evidence of certain specified facts. See 26 R. C. L., p. 422; Lebanon Mining Co. v. Rogers, 8 Colo. 34, 5 Pac. 661.
Section 7426, supra, does not make the deed prima facie evidence of a compliance with section 7423, Compiled *179Laws, concerning the giving of notice upon application for a tax deed where the assessed valuation of the property is $100 or more. In Richards v. Beggs, 31 Colo. 186, 72 Pac. 1077, it was held that a tax deed is not prima facie evidence of the service of notice as required by section 7423, supra; and that case was followed in Treasury Tunnel M. & R. Co. v. Gregory, 38 Colo. 212, 88 Pac. 445. In each of those cases the deed ivas issued prior to 1902. In that year an act was passed (S. L. 1902, c. 3), which for the first time required (§181) the following recital to be inserted in tax deeds: “And, whereas, all of the provisions of the statutes prescribing prerequisites [to] obtaining tax deeds have been fully complied with, and are now of record, and filed in the office of the county treasurer of said county.”
The cases cited above were decided under a statute that contained no such provision, and the deeds contained no such recital. The same is true of Sheesley v. Voorhees, 24 Colo. App. 428, 134 Pac. 1008; the deed involved in that case was issued in 1899. Mitchell v. Trowbridge, 47 Colo. 6, 105 Pac. 878, and Vandermeulen v. Burwell, 22 Colo. App. 486, 125 Pac. 131, were decided in reliance upon Richards v. Beggs, supra, and Treasury Tunnel M. & R. Co. v. Gregory, supra. In the Mitchell case, our attention was not called to the provision of the act of 1902 quoted above, which is the same, in substance, as section 7425, Compiled Laws, and we did not consider the effect of that provision. In the Yandermeulen case that provision was not presented by the briefs or considered by the Court of Appeals. That provision must be given some effect, of course. If it was not intended to show a compliance with the conditions precedent to issuance of the deed, including the giving by the county treasurer of the notice required by section 7423, supra, and to be prima facie evidence thereof, what purpose was it intended to accomplish? It is not to be presumed that the General Assembly did a futile thing when it required that recital to appear in tax deeds — that it was indulg*180ing in a mere idle gesture. On the contrary, we may fairly assume that the General Assembly had in mind the provisions of section 7423, supra, making it the duty of the county treasurer (not of the purchaser or some other third person) to serve the notice or cause it to be served, and to “make and carefully preserve among the files of his office a record of all things done in compliance with this section and shall certify to a compliance with the provisions of this section, ’ ’ and intended that the statutory recital in the deed that “all of the provisions of the statute prescribing prerequisites to obtaining tax deeds have been fully complied with and are now of record and filed in the office of the county treasurer” should be given effect.
We have given to recitals in tax deeds the effect of prima facie evidence of the facts recited. Section 7410, Compiled Laws, requires tax sales to be commenced on or before the second Monday in November of each year. Section 7411 provides that if, from any cause, property cannot be advertised and offered for sale at that time, the treasurer shall sell on a subsequent day. Where the deed shows on its face that the sale was held on a day subsequent to that designated by section 7410, without a recital of any cause for the delay such as would authorize, under section 7411, a sale on the subsequent day, it might with considerable plausibility be said that the deed shows on its face the falsity of, and therefore overcomes, the recital that all the provisions of the statutes prescribing prerequisites to obtaining tax deeds have been fully complied with, and also deprives the deed of its character of prima facie evidence that the sale was conducted in the manner required by law. But it is otherwise where the deed contains a recital of sufficient cause for the delay. In the following cases we held, by clear implication if not expressly, that a recital in the tax deed of reasons why the property could not be offered for sale at the time specified in section 7410, supra, is prima facie evidence of the reasons stated: Hamer v. *181Glenn Investment Co., 75 Colo. 423, 226 Pac. 299; Kingore v. Wallace, 85 Colo. 381, 276 Pac. 332; Ireland v. Gunnison Mountain Coal & Coke Co., 87 Colo. 193, 286 Pac. 280; Chase v. Bogardus, 78 Colo. 573, 243 Pac. 546; Denver v. Bullock, 80 Colo. 9, 249 Pac. 498; Wenig v. Lyons, 81 Colo. 6, 252 Pac. 889; Denver v. Murry, 82 Colo. 128, 257 Pac. 359. And in Denver v. Bach, 92 Colo. 594, 22 P. (2d) 1114, we expressly held as follows (quoting from the syllabus): “A tax deed reciting a sale later than the date fixed by statute, but reciting good cause for the delay, shows a sale authorized by statute; such, a deed is not void on its face, but is prima facie valid, and sufficient to cast upon one attacking it the burden of showing its invalidity.” We said: “Here, the recital of the date of sale is accompanied by a showing of good cause for the delay — the poison is accompanied by the antidote. The recital giving the date of the sale and the recital of the cause for the delay must be taken together. They are inseparable. Both are necessary to a correct understanding of the situation, and both should be given effect.” If a recital in a tax deed, not required by statute to be inserted therein, is prima facie evidence of the fact recited, a recital required by statute to be inserted in the tax deed certainly should have that effect.
Again, the form of the deed prescribed by section 7425, supra, contains a recital that subsequent taxes were paid. Section 7426, supra, does not make the deed prima facie evidence of that fact, but clearly that statutory recital must be given some effect. Its obvious purpose is to show that the taxes subsequent to the tax sale have been paid. That means, I take it, that the statutory recital is prima facie evidence of such payment. If it does not have that effect, pray what effect does it have ?
The same remarks apply to the statutory recital in the deed that the property has not been redeemed from tax sale.
In my opinion, the fact that the recital is in the form of a conclusion, instead of a statement of the facts upon *182which the conclusion is based, does not make it any the less prima facie evidence. The authorities are not in harmony, but the rule applied in this case has substantial support in the decisions and strong support in reason. Moreover — and this should settle the question — the recital in the deed is in the exact words prescribed by the statute.
I conclude that, in the circumstances, the plaintiff in error had the burden of proving that the statutory notice was not given. That conclusion is arrived at without the aid of the presumption of regularity which, as we have held many times, attends the acts of public officers, but which, for reasons that do not appeal to me as altogether satisfactory, is not indulged in favor of tax sales.
I concur in the decision and in the opinion supporting it. Mr. Justice Bouck and Mr. Justice Holland concur in the views expressed herein.