The treasurer shall also make, or cause to be made, an affidavit showing the posting of such list and notice, all of which affidavits shall be deposited by the treasurer with the county clerk and recorder to be filed and entered by the county clerk and recorder in the reception book or other permanent record of said office and there carefully preserved.
Source: L. 64: R&RE, p. 723, § 1. C.R.S. 1963: § 137-11-3. L. 94: Entire section amended, p. 756, § 9, effective April 20.
ANNOTATION
Annotator's note. The following annotations include a case decided under this section as it existed prior to its 1964 repeal and reenactment.
Legislative intent to create record. This section manifests a legislative intent that affidavits should become a permanent, enduring record of the fact of publication of the tax list. Herr v. Graden, 22 Colo. App. 511, 127 P. 319 (1912), rev'd on other grounds, 59 Colo. 372, 148 P. 863 (1915).
Purpose for requiring deposit of affidavits is to furnish proof. The sole purpose for requiring the deposit of 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. Bertha Gold Mining & Milling Co. v. Burr, 31 Colo. 264, 73 P. 36 (1903); Johnson v. Cork, 106 Colo. 72, 102 P.2d 471 (1940).
The evident purpose of this section is to make the affidavit exclusive evidence of a compliance with the section with reference to notice by publication. This is in accordance with the fundamental rule that where proof by written evidence is required, oral evidence will not be received, unless in case of loss or destruction of the writing. Rustin v. Merchants' & Miners' Tunnel Co., 23 Colo. 351, 47 P. 300 (1896).
Affidavits are not required to be filed at any particular time, nor does the failure to file them before the issuance of a tax deed render such deed invalid. Bertha Gold Mining & Milling Co. v. Burr, 31 Colo. 264, 73 P. 36 (1903); Sternberger v. Moffat, 44 Colo. 520, 99 P. 560 (1908).
They must show substantial compliance with requirements. It is evident that the affidavit must be sufficiently certain and specific to reasonably show that, in fact, the requirements of this article relative to the contents of the notice have been substantially complied with, and that the notice posted referred to some particular sale. Am. Bond & Inv. Co. v. Hopkins, 46 Colo. 460, 104 P. 1040 (1909).
Absence of affidavit is prima facie proof that proper notice was not given. Proof that affidavits are 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. Bertha Gold Mining & Milling Co. v. Burr, 31 Colo. 264, 73 P. 36 (1903); Am. Bond & Inv. Co. v. Hopkins, 46 Colo. 460, 104 P. 1040 (1909).
Applied in Norris v. Kelsey, 23 Colo. App. 555, 130 P. 1088 (1913); Colpitts v. Fastenau, 117 Colo. 594, 192 P.2d 524 (1948).