Gillespie v. Wood & Douglass ( 1844 )

Giieen, J.

delivered the opinion of the court.

This is a petition for a mandamus, to compel the entry taker of Madison to receive an entry tendered by the relator. The petition alleges, that the relator has a right of occupancy to the land embraced in the entry tendered by him; that the defendant Douglass has entered the same, but that his entry is void and ought not to have been received by the entry taker.

From the proof, it appears that in 1826 one Horn settled upon the land in dispute, under a contract with one Rudisil to make an occupant settlement and transfer the same to Rudisil. The relator Gillespie claims under Rudisil. Horn made the improvements, and became entitled to enter the land as an occupant; but he has never made a transfer of his claim to Rudi-sil or to the relator. Douglass, the defendant, purchased Horn’s claim for some small consideration, and tendered an entry for the land, which was received and recorded by the entry taker. Afterwards, the relator tendered his entry for the same land, but the entry taker refused to receive it, because the land had been previously entered by Douglass.

From this statement of the facts, it is manifest that there was no legal impediment in the way of Douglass’s entry. Whether the contract between himself and Horn was a fraud upon the rights of the relator, is not now a matter open to enquiry. The only question is, whether his entry is valid; and as it has unquestionably appropriated the land, no other entry can be legally made. The entry taker has no power by virtue of his office, to make void a valid entry without the consent of the enterer. And this court cannot command him by mandamus to do that which, without such command, it would not have been lawful for him to do. The office of a mandamus is to enforce the performance of an official duty; and we cannot in this case institute an enquiry into the equities of these parties, and give the relief which a court of chancery might afford. That relief must be sought in another forum, and in another form of proceeding.

Let the judgment be affirmed.