
    Gillespie vs. Wood & Douglass.
    1. The office of a writ of mandamus is to enforce the performance of official duty, and the officer cannot be commanded to do that which it was not lawful for him to do without such command.
    2. Horn secured, in his own name, an occupancy according to law, under a contract with Rudisil, that such occupancy, when secured, should be transferred to Rudisil. Horn sold and transferred it to Douglass, and Douglass entered the land by warrant. Held, that the legal right was in Douglass; and that if Rudisil had an equitable right to appropriate the land, that right could only be established dnd enforced in a court of chancery, and not by mandamus.
    
    Gillespie filed this petition for a mandamus in the Circuit Court of Madison county, for the purpose of compelling Wood, the entry taker of said county, to receive a location and make an entry of 140 acres'of land lying in Madison county. Wood, the entry taker, refused to receive the location, on the ground that the land had been previously appropriated by Douglass. It appeared, that one Houston had been in possession of the land and had made some small improvement thereupon; that Rudisil had purchased Houston’s interest, and had made an agreement with Horn, that Horn should take possession of, secure the occupancy according to law in the name of Horn, and transfer it to Rudisil. The occupancy was accordingly secured in Horn’s name; and Horn thereupon, for the sum of ten dollars, sold and transferred the claim and possession to Douglass, and Douglass made an entry of the land by warrant. Rudisil sold his claim to Gillespie. The petitioner Gillespie bought his right to enter the land on the contract of Rudisil and Horn, and alleged a fraudulent combination to defeat the claim of Rudisil, whose assignee he was. The petition prayed that the entry of Douglass be declared void, and that peremptory mandamus issue, &c.
    At the April term, 1843, the case came on to be heard, on petition, answer and proof. Read, the presiding Judge, dismissed the petition.
    The petitioner appealed.
    
      McLanahan and McLellan, for petitioner.
    
      Huntsman and Scurloc/c, for defendants.
   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.  