¶1delivered the opinion of the Court.
¶2On the 9th of March, 1857, the collector of Conway county offered for sale for taxes a tract of land, taxed in the name of one Tarkington, which was not sold for want of a bidder, and forfeited to the State.
¶3On the 25th oí November, 1857, Merrick applied to the Auditor to purchase the land, under the act of January 1st, 1855, (Gould’s Dig., ch. 148, secs. 172, 173), tendering the amount of taxes, penally and costs due thereon, and producing to the Auditor the affidavits of settlement and residence, etc., prescribed by the act; but the Auditor refused to receive the money and execute to the applicant a deed to the land, on the ground that the two years allowed by the statute to the former owner to redeem the land had not expired.
¶4Merrick then applied to the Circuit Court of Pulaski county for a mandamus against the Auditor to compel him to accept the money, and execute the deed, stating the facts above set forth.
¶5The Auditor demurred to the petition, the court overruled the demurrer, awarded the mandamus, and the Auditor appealed.
¶6By see. 138, Gould’s Dig. ch. 148, the former owner of any tract of land forfeited for non payment of taxes, is allowed to redeem the land at any time before the expiration of two years from the date of the forfeiture, by paying the amount of taxes, etc., charged thereon.
¶7Section 155 requires the Auditor to offer at public sale, on the first Monday in February, in each year, all lands, etc., which have been forfeited to the State for the term of two years, and have not been redeemed, etc.
¶8These sections of the statute were in force when the act of 1st January, 1855, was passed. It provides:
¶9That “ actual settlers upon lands which have been, or may be hereafter forfeited to the State for non-payment of taxes, shall be entitled to purchase the same at private sale, and upon payment of the amount of taxes, penalty and costs due thereon to the Auditor, it shall be the duty of the Auditor to execute and deliver to the purchaser a deed of conveyance for the same as required by sec. 163” (where forfeited lands are sold by the Auditor at public sale). Dig., chap. 148, sec. 172.
¶10Section 173 prescribes the affidavits of settlement, etc., to be filed by the applicant to purchase at private sale.
¶11The act of 1st January, 1855, does not expressly, nor do we think by implication, or conflict, repeal the previous law allowing the former owner of land forfeited to the State, the privilege of redeeming it any time before the expiration of two years from the date of the forfeiture. It only changes the previous law so far as to authorise the Auditor to sell forfeited lands, after the period allowed for redemption has expired, to the actual settlers thereon at private sale, instead of offering all such lands at public sale, as required by the previous law.
¶12The judgment of the court below must be reversed, and the cause remanded, with instructions to the court to sustain the demurrer of the Auditor to the petition of Merrick.