dissenting.
From the opinion of the court and from the specially concurring opinion of Mr. Chief Justice Butler, I respectfully dissent.
In an early case, Lebanon Mining Co. v. Rogers, 8 Colo. 84, 5 Pac. 661, this court used the following language: “A tax title differs in some respects from that obtained through patent by ordinary conveyance. The deed, when offered as evidence, is not governed by the same rules. At common law the regularity of the ministerial acts preceding the tax deed, and upon which it rests, is not presumed; in the absence of statute a tax deed is not admissible in evidence except it be accompanied by proof ‘that all the requirements of the law have been complied with by the agents of the government. ’ Blackwell on Tax Titles (4th ed.), 80. But by statute in this state the tax deed is made prima facie evidence of the regularity of these prerequisites; also that the property described therein was subject to taxation. The burden of proof concerning these things is simply shifted to the *183attacking party. General Statutes, sec. 2932. [C. L. ’21, §7426.]”
Section 7426, Compiled Laws of 1921, so far as material to this case is as follows: “The deed * * '* shall be prima facie evidence in all courts of this state in all controversies and suits in relation to the rights of the purchaser, his heirs or assigns, to the land thereby conveyed, of the following facts:
“First — That the real property conveyed was subject to taxation for the year or years stated in the deed.
‘ ‘ Second — That the taxes were not paid at any time before the sale.
“Third — That the real property conveyed had not been redeemed from the sale at the date of the deed.
“Fourth — That the property had been listed and assessed at the time and in the manner required by law.
“Fifth — That the taxes were levied according to law.
“Sixth — That the property was advertised for sale in the manner and for the length of time required by law.
“Seventh — That the property was sold for taxes as stated in the deed.
“Eighth — That the grantee named in the deed was the purchaser or the heir at law, or the assignee of such purchaser.
“Ninth — That the sale was conducted in the manner required by law. ’ ’
Section 7423, C. L. 1921, enacted in 1905, (amending a similar section passed in 1902 as a part of a general revenue act) provides that before any purchaser or assignee of such purchaser of any land, at any sale for taxes, shall be entitled to a deed for the land so purchased, he shall make a request of the county treasurer who shall then comply with certain requirements in the way of serving, mailing and publishing notices. It is further provided that the treasurer shall make and preserve among the files of his office a record of all the things done in compliance with this section of the stat*184ute, and that he shall certify to a compliance with its provisions.
The form of tax deed in use prior to 1902 is set out in section 2332 of the General Laws of Colorado. The form of deed required by the revenue act of 1902 and such act as amended in 1905, appears as section 7425, C. L. 1921, and contains the following provision: “And, whereas, all 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; * * *” This provision did not appear in the statutory form of tax deed prior to the 1902 enactment of the revenue laws.
The sole question in this case is whether or not the writing of this additional provision into the statutory form of deed in the same act which contained a reenactment of a statute that had been for twenty-five years in existence, namely, section 7426, C. L. 1921, makes a tax deed prima facie evidence of all statutory prerequisites to its issuance, including those that are not, as well as those that are, mentioned in said section 7426, supra. If the holding of the majority of the court is correct, the requirement that the foregoing additional provision be inserted in the deed was equivalent to the legislature saying specifically that in addition to the nine requirements that we have above set forth, of which the deed is prima facie evidence, such deed shall be prima facie evidence of all of the prerequisites required by statute to make it a valid deed, provided it contains the statutory provision of a tax deed above quoted.
To say that the legislature so intended is to hold that it expressly repealed the act by which it adopted the common law of England, so far as the same is applicable and of a general nature and as it existed in the year 1607 (§6516 C. L. 1921) as to the nine facts of which the deed is made prima facie evidence; and by implication repealed it, and made the tax deed prima, facie evidence of all other statutory requirements, of which the deed was *185not evidence at common law. Repeals by implication, we have held, are not favored and statutes in derogation of the common law are to be strictly construed.
In my opinion there is more reason to apply this latter rule of construction in the instant case, where the provision relied upon is in the same act, for we may assume the legislature had under consideration a complete revenue act and by its reenactment of an old statute considered again the matters that were contained therein, and again specifically determined the facts of which the deed should be prima facie evidence. If it had intended that the deed should be prima facie evidencé of all prerequisites to its issuance, it seems reasonable to believe that it would have specifically so provided.
There is good reason for making a distinction between the nine provisions set forth in section 7426, supra, and other prerequisites for the issuance of a deed, for the nine facts of which it is made prima facie evidence all become facts before the purchaser or his assignee has any interest in, or control over, the procedure for divesting the record owner of his title and investing it in such purchaser or his assignee; But when the purchaser or his assignee comes to the matter of procuring a deed he then knows the land involved; he has a personal and financial interest in procuring title for himself, and it is not imposing an unreasonable burden upon him to require proof in court of what he did and procured to be done in order to divest the owner’s title and invest it in himself. May it not well be that the legislature, having in mind the financial interest of the party seeking to procure a deed for himself, provided that the evidence of what was done by him and by his procurement should be preserved in the interest of the owner of the land as an additional check on the testimony of the purchaser rather than that it might constitute prima facie proof against the owner of the land? Since courts always require the repayment to a purchaser or his assignee of any money, with interest, advanced on the expectation *186of procuring title as a condition to the setting aside a tax deed; and since the amount paid by a purchaser or his assignee is usually greatly disproportionate to the value of the property, there is no claim on equitable grounds that calls for a liberal construction of the statute that -will effect a repeal by implication of the act adopting the common law as the law of this state, relating to the facts of which a tax deed shall be prima facie proof.
To give the foregoing provision in the deed the effect given it in the opinion of the court is to make it unnecessary to set forth in the instrument any of the facts required to be stated in the statutory form. For example, the reason that the sale was not held on the date fixed by statute need not be stated, for there is a presumption of regularity and that the officer did his duty; the recital in the deed that there was a compliance with all prerequisites is broad enough to cover this. Yet this court has repeatedly held that a deed showing the sale was held at a time other than the date fixed by statute, with no reason stated therefor, is void on its face. Kingore v. Wallace, 85 Colo. 381, 276 Pac. 332; Chase v. Bogardus, 78 Colo. 573, 243 Pac. 546; Hamer v. Glenn Investment Co., 75 Colo. 423, 226 Pac. 299. The conclusion of the treasurer as to what the law requires shall be done should not, as I believe, be given an effect — under the theory that there is a presumption that an officer does his duty — that extends the provisions of the statute making a deed prima facie evidence of nine specified facts, so that it becomes prima facie evidence of all facts prerequisite to its validity, thereby repealing by implication and to that extent the statute adopting the common law.
Whether there has been a compliance with the provisions of a statute is a conclusion of law. That a record of what was done has been made and filed in the office of the treasurer is a fact to which the treasurer can certify. By section 7423, C. L. 1921, the treasurer is required to preserve such record in his files and this is *187sufficient reason for requiring the statement to appear in the deed.
The case of Denver v. Bach, 92 Colo. 594, 22 P. (2d) 1114, is cited in the court’s opinion as determinative of the issue in this case. It will be observed by a careful reading of this authority that the matter there under consideration was one arising prior to the tax sale and the court in its opinion specifically holds that the case is within the 7th and the 9th provisions of section 7426, supra. That the act was within the express exceptions logically can and should be the construction to be placed on the Bach case. The case of Vandermeulen v. Burwell, 22 Colo. App. 486, 125 Pac. 131, involved a tax deed, dated June 21, 1907. Specific objection was made to the introduction of the deed “for the reason that there was no proof that the assessed valuation was less than $250.00 or that the notice required by the statute was given.” The objection was sustained and the deed excluded. The Court of Appeals upheld the ruling, citing as authority therefor, Mitchell v. Trowbridge, 47 Colo. 6, 105 Pac. 878. This construction by the Court of Appeals in the Mitchell case has been accepted by the bench and bar as the law of the state for more than a quarter of a.century and such acceptance and understanding being consistent with sound reasoning, the supporting cases, I believe, ought not now be overruled. In my judgment the effect of the majority opinion is to overrule them.
In my opinion the provision added to the deed by the amended 1902 act is not so repugnant to the common-law rule, that all prerequisites to the issuance of a deed shall be proved except as the same is specifically modified by section 7426, supra, that both the provision in the deed and the requirements of the common law cannot stand. If both can be given effect it is our duty to so construe them.
Mr. Justice Burke and Mr. Justice Hilliard concur in this dissenting opinion.