
    Johnson and others vs. Lucas & Gaither.
    1. Where an entry has been made according to the form3 of law, it cannot be vacated by the entry-taker, because in the view of a court of equity another person may be entitled to the land, or because the entry may have been fraudulently made as against the State.
    2. The proper office of a mandamus is to enforce the performance of official duty, and it will not lie to compel an officer to do an act which it would not have been lawful for him to do without its command.
    This is a petition for a mandamus, filed in the Circuit court of Lawrence county, by Lucas & Gaither against the entry-taker of said county. The petition charged, that they tendered locations of land in Lawrence county and fees, to Shel-bing, and that he refused to receive the fees, and in other respects to do his official duty, on the ground that the lands were already entered, and appropriated by Johnson and others. That said entries of Johnson and others ‘-were made on small transfers obtained for that purpose, and extensions made thereupon,” and “tranfers then made from said extensions and additional extensions thereupon” ; that said entries thus made are contrary to the spirit and meaning of the law authorizing extensions to be made by occupants, are illegal and did not exclude the right of the general enterer; that said enter-ers had never settled on any of said lands, &c. ' Johnson and others answered this petition, and an issue was made up and submitted to a jury, who under the charge of the presiding Judge, Walker, found a verdict for the petitioners.
    Johnson and the other respondents appealed.
    
      Baxter, for the plaintiffs in error.
    
      S. E. Rose, for the defendant in error.
   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.  