Foreman v. Hardwick

COLLIER, C. J. The agreement of the parties most essentially changed the frame work of the bill, and shows that the coiliplainant was greatly at fault in the statement of his case. Instead of seeking to be reinvested with the title and possession of land, which he had lost at gaming, the complainant is understood to state as the ground upon which he [325] asks relief, that he had sold the land in question to the defendant for four hundred dollar's, taken his note for this sum, and that the latter had won it from him. There is no special prayer adapted to the case as thus modified, and the general prayer which the bill contains, had no reference to it, and would not authorize the relief which it requires. It is however part of the agreement, that the bill shall he supposed to contain the appropriate prayers for discovery and relief, and we can conceive of no relief, (if there be any other,) so well adapted to the case as the subjection of the land to the payment of the purchase money. Of the statements in respect to the defendant’s purchase of the land at sheriff’s sale, and of his being the proprietor of a judgment in favor of Harvill, use, &c. v. the complainant, no prayer for relief is, or can be predicated; they may be considered by the court in determining the measure of redress it will grant. We must then look at the case under its modified phase, as an application for the enforcement of an equitable lien; and in this view we propose to consider the cause. The act of 1807 declares, “ all promises, agreements, notes, bills, bonds, or other contracts, judgments, or other securities, or other conveyances whatsoever, made, signed, given, granted, drawn, or entered, or executed by any person or persons whatever,” the consideration of which, either in whole or in part, is founded in gaming, betting, or wagering, to “ be utterly void and of no effect to all intents and purposes whatsoever.” [Clay’s Dig. 257, «§. 1.] In Roberts v. Taylor, et al. 7 Por. R. 251, it was said the winner of anote can be considered in no other light than that of a trustee for the true owner, and a bill was sustained enjoining the maker from paying to him the money due thereon; “ and it may well admit of doubt, on principle, though the weight of authority is against it, whether, independent of all statutory regulation, even money won at play, may not be recovered back.” Mi'. Justice Story thinks such is the law, “ independent of any statutable provision.” [2 Com. on Eq. 303.] In the case cited, it was decided, that the indorsement of a note or bond was a contract within the terms of the act; and in Barker, et al. v. Callihan, 5 Ala. Rep. 708, we said, “it is true that the notes were transferred by delivery merely, but this is not less a [326] •contract than if they had been indorsed. It is an agreement within the terms of the statute, that the persons to whom the notes were delivered should be their proprietors, and receive the money thereupon : and if intended to pay losses sustained at the gaming table, is void, and passed no property in the notes to the winners.” See also, Wood v. Duncan, 9 Porter’s Rep, 227; Fenno v. Sayre & Converse, 3 Ala. Rep. 766; Cheatham v. Young, 5 Ala. Rep. 353 ; Manning v. Manning, et al. 8 Ib. 138. The counsel for the plaintiff in error • does not controvert the authority of the cases cited, but insists that they are inapplicable to the present; that there the winners of the notes were not the makers, and they had not been paid; but here, the maker was the winner of his own note, and it had been delivered up to him, and the illegal transaction consummated. A note for the payment of money evidences the indebtedness of, the maker, but the debt exists independently of the note, and may be recovered, though the note be lost or destroyed. True, if the maker is in possession of it, the presumption is, that he has paid it, and it devolves upon the payee, if he insists it has not been discharged, to prove it. What amounts to a payment, is a question of law depending upon the facts and circumstances of the case. Payment in forged paper, or base coin, in general is not good. [U. S. Bank v. Bank of Georgia, 10 Wheat. Rep. 333; Eagle Bank v. Smith, 6 Conn. Rep. 71; Markle v. Hatfield, 2 Johns. R. 456.] So a payment in the bills of a bank insolvent at the time, or in unproductive paper, it has been held is not a satisfaction of the debt. [Ontario Bank v. Lightbody, 13 Wend. Rep. 101; Davidson v. Bridgeport, 8 Conn. Rep. 472.] And upon common law principles we incline to think that a debt is not discharged by winning as a wager the writing by which it is evidenced. But we need not consider what would be the effect of such a transaction upon the rights of the creditor, without reference to legislation upon the subject. The terms of the act of 1807 are exceedingly comprehensive. It declares void “ all promises, agreements, notes, bills bonds, or other contracts,” &c. “for money, or other valuable thing whatsoever,” founded in “gaming, betting, or wagering.” In the case before us, there was certainly an agreement, in [327] advance of the delivery of the note to the defendant, that it should be thus disposed of, if the complainant should have miscalculated the event upon which the parties laid their wagers. Giving up the note, we have seen, does not extinguish the debt, and if the agreement was void, can have no effect upon the complainant’s rights; it is therefore competent for him to assert his right to recover the purchase money, by praying that his equitable lien may be enforced. [See Haley, et al. v. Bennett, 5 Porter’s Rep. 462; Foster v. The Trustees of the Athenæum, 3 Ala. Rep. 302; Roper v. McCook, and another, 7 Ala. Rep. 318.] These conclusions seem so' reasonable to us, as not to require further illustration ; and it follows that the plaintiff is entitled to a decree giving to him the benefit of his equitable lien. The remaining question then is, should the master have reported in favor of the allowance to the defendant of a credit of twenty-nine dollars, the amount at which he bid off the land, at the sale under the order of court, consequent upon a constable’s levy. It is certainly correct as a general rule that one person cannot make another his debtor against his-consent. [2 Stewart’s Rep. 600.] But in the present case the defendant cannot be regarded as a mere volunteer in the payment of the judgment. True, it operated no lien upon the land, and his title could not have been disturbed by it, or any one purchasing under the order made upon the levy, yet a cloud might have been thus thrown over his title, and he involved in litigation, the cost of which, (to say nothing of trouble and anxiety,) would have been more than the amount bid. Under these circumstances, we think the master should have made the allowance to the defendant. The complainant was seeking equity, and he should have been required to do equity himself. Besides, would not a court of equity, in such a case, where the amount in controversy was sufficient to induce it to take jurisdiction, set aside the return of satisfaction, and give to the defendant the benefit of an execution in the name of the plaintiff in the judgment, for his own reimbursement, sooner than force him to submit to a cloud being cast over his title by a third person becoming the purchaser ? Be this as it may, as the complainant who has received the benefit of the money advanced by the [328] defendant, is now an actor, he should be forced to reimburse it. The decree will therefore be here reversed, and rendered according to the principles of this opinion, at the costs of the defendant in error.