Glennville Investment Co. v. Grace

Lumpkin, J. (After stating the foregoing facts.) The arrangement sought to be enforced was plainly a lottery scheme. The seller did not convey or contract to convey any particular lots or land to any certain purchasers. It received from proposed purchasers arbitrarily fixed amounts, without reference to the relative value of the lots into which it had divided its property. These varied very much in value. Whether a purchaser received lots of greater or less value for his money was not determined by contract but by chance. A drawing was had, by which names were put in one box and numbers in another, .and upon the hazard of drawing out names and numbers depended the determination of what lots a proposed purchaser should get for his money. The drawing was conducted by a committee of the proposed purchasers under rules and regulations of the proposed seller. The plaintiff in the present case appears to have drawn the capital prize. He alleged that under his contract he was to pay a thousand dollars, for which he was to receive ten lots, and that one of them drawn by him was of the value of $3,000, while others were of considerable, though less, value. The mere use in the written contract of such euphonious expressions as that the “opening and distribution of these lots and land will be conducted on a plan entirely in keeping with the law, and fair to all, and shall be 'agreed upon by a majority of the purchasers present,” will not serve to conceal the real illegality of the scheme. The seller did not sell a tract of land to tenants in common and leave them to divide it among themselves. It was to participate in the “opening,” and did so. It was only to convey such lots as were drawn. The “opening” was to take place when ten applications were sold in one town. Disregarding any mere device of words, what was actually contracted for by each so-called purchaser was evidently a right to have a certain number of lots conveyed to him by the seller, to be determined by chance, the various lots being widely different in value. A lucky draw would result in obtaining valuable lots for the amount paid by the purchaser. An unlucky draw would give him lots of much less value for his payment. The plaintiff alleges, that, “after [577] the drawing was completed, and it cropped ont that your petitioner had good luck,” the defendant refused to convey to him the lots drawn on his behalf; that he was absent at the time the drawing took place, and the defendant would not even disclose to him what lots were drawn in his favor, but that he had ascertained several of them, one of them being a store lot valued at $3,000. In his original petition he prayed discovery in order to find some of the lots he claimed to be entitled to, and also specific performance in regard to them. By amendment he confined his prayer for specific performance to the particular lot mentioned. The plaintiffs own allegations show how far this was from a bona fide sale of land to him. Such schemes as this are illegal and will not be enforced. A court of equity will not decree specific performance of a promise to pay a capital prize in a lottery or gift enterprise. Penal Code, § 406; Whitley v. McConnell, 133 Ga. 738 (66 S. E. 933); Lynch v. Rosenthal, 144 Ind. 86 (42 N. E. 1103, 31 L. R. A. 835, 55 Ann. St. R. 168); Guenther v. Dewein, 11 Iowa, 133; Wooden v. Shotwell, 24 N. J. L. 789; Allebach v. Godshalk, 116 Penn. 329 (9 Atl. 444); 19 Am. & Eng. Enc. Law, 591. The court erred in overruling the demurrer to the petition. Judgment reversed. All the Justices concur.