Windham v. Childress

ORMOND, J. Although the law will not lend its aid to enforce an illegal contract, yet if it be executed, and the parties are in pari delicto, it will not interfere between them. [Black & Manning v. Oliver, 1 Ala. Rep. 449.] So, if, upon an illegal contract, the possession be parted with, and the former owner regain it by fraud, or force, he cannot defend himself, and retain the possession, by showing that he parted with it upon illegal, or immoral consideration, and that the contract was in violation of a public statute. This is the principle of the case of Rochelle v. Harrison, 8 Porter, 351, where it is said, " what the law will not accord by suit, cannot be attained by fraud, or force. Whenever the title to property, has once [359] passed by an executed contract, it cannot be revested by recaption, or by any other mode of acquiring the possession.” These principles are decisive of this case, when the horse was won, and delivered to the plaintiff, upon his winning the race, upon which it had been bet, the only statute in force was the act of 1807, making all gaming contracts void, and which, by the provisions of the act, extended to horse racing. But upon the delivery of the horse, the property vested absolutely in the winner, and as the loser, could not have repossessed himself of the horse by fraud, or force, and have defended himself by showing the illegality of the contract, by which he parted with it, still less can he be allowed to do so, when he has regained the possession, by a contract to pay a sum of money. At the time this contract was made, the provisions of the penal code, (Clay’s Dig. 434, § 17,) which authorizes the recovery of money, or property lost at gaming, was not in force, admitting that the provision extended to money, or property, lost upon a horse race. Let the judgment be reversed, and the cause remanded.