Johnson v. Lucas ( 1850 )

McKinney, J.,

delivered the opinion of the court.

Whether or not, as against the State, the entries of the plaintiffs in error are void for fraud, is a question which we are not called upon to decide in this case. Be this as it may, it is clear that the relators cannot maintain their application for a mandamus against the entry-taker.

It has been repeatedly declared by this court, that the proper office óf a mandamus is to enforce the performance of an official duty, and that it will not lie to compel an officer to do an act which, without its command, it would not have been lawful for him to do. 4 Hum. 437, 6 lb. 493.

Where an entry has been made according to the forms and requirements of the statute, it cannot be vacated by the entry taker, because, in view of a court of equity, another person may be entitled to the land entered. Nor, where it is even doubtful whether an entry is void or not, will a mandamus lie to compel the entry-taker to receive another entry for the same land. 2 Hum. 330; Id. 354.

Neither can a subsequent enterer, whose rights are in no way affected by a fraud alleged to have been practised upon the State in procuring a prior entry for the same land, maintain an application for a mandamus against the entry-taker to compel him to receive such subsequent entry. — The fraud in the procurement of the prior entry, is a question entirely between the State and the prior enterer. The State may, by a proper proceeding, instituted for that purpose, avoid the entry. But, if not, a subsequent enterer, having no interest in the matter, and whose rights are not affected thereby, cannot, in this mode, at least, be heard to complain, unless, indeed, under the circumstances, the prior entry were an absolute nullity.

If the prior entry be good upon its face, and according to the forms of law, the question whether or not it might be avoided by the State, or by the decree of a court of equity does not belong to the entry-taker.

The judgment of the Circuit Court is therefore erroneous, and will be reversed.