By the

Court, Cobb, C. J.

This is a motion for a mandamus to compel the defendants to levy and collect, with the taxes for the year 1863, an additional sum of five thousand three hundred and twenty-seven dollars and ten cents, for a balance of-territorial taxes imposed upon the people of that county in the years 1858, 1859 and 1860. It appears from the papers, upon which the motion is founded, that such a balance of said taxes remains yet unpaid into the state treasury, and this is all the evidence given of any default of the county commissioners of Atchison county, or of any one in regard to such taxes.

Section forty-two of the “act to provide for the assessment and collection of taxes,” approved February 27th, 1860,(Comp. Lmvs, § 67,) provides that “if any parcel of lands cannot be sold for the amount of tax, penalty and charges thereon, it shall be bid off by the county treasurer for the county, for such amount.” The tax law of 1858, in force up to the time of the passage of the act referred to, contains a similar provision, and under both laws the owner or occupant is allowed three years to redeem the land sold.

Section two of “an act relating to the payment of taxes,” passed February 27, 1860, -which is still in force, provides that county treasurers shall not be required to pay into the territorial treasury more territorial taxes than shall have been actually collected in their respective counties.

Under these laws the only fair inference, from the facts stated, is, that lands have been bid off by the county treasurer of Atchison county for the taxes so unpaid, and have not yet been redeemed ; in which case no one is in default, but the taxes arc in due course of collection. The county has not *488failed to “.levy” the tax, and is, therefore, not within the provisions of chapter sixty-three of the laws of 1868.

The motion must be denied.

All the justices concurring.