Brewer, J.The demurrer must be sustained. The defendant is under no obligation to return taxes upon failure of tax titles, except *851as some statute requires it. Commissioners Lyon Co. v. Goddard, 22 Kan. 389. Before the county can be held liable, default on the part of the treasurer must he alleged, or some interference with him by the commissioners. Commissioners Saline Co. v. Geis, 22 Kan. 381. The plaintiff must rely on section 120 of the tax laws of 1868, for without that the statute of limitations would plainly bar. This provides that if the county clerk discovers that tho land ought not to be conveyed, he shall not convey it; and also that the county treasurer shall, on the return of the tax certificate, refund the tax money. This petition does not allege when, if ever, the county clerk discovered that the land ought not to be conveyed, or that the tax certificate was ever returned, or offered to ho returned. Whether tho first matter is a fatal defect need not be determined. The second is vital. Perhaps the failure to return was one of tho reasons why the treasurer refused to pay, and the commissioners to make any provision for payment. The lack of funds is not shown to be the only reason for refusal. Only inferentially does it appear that any demand was ever made on the treasurer; the demand is alleged to have been made upon tho county.
Leave is given to file an amended petition, with leave to answer.