Warden v. Plummer

Decision Date31 August 1857
Citation4 Jones 524,49 N.C. 524
CourtNorth Carolina Supreme Court
PartiesA. J. WARDEN v. REASON PLUMMER et al.
OPINION TEXT STARTS HERE

*1 Where A won a justice's judgment from B at a game of cards, unfairly played, and took from the defendants in the judgment, a bond payable to himself for the amount, upon which he brought suit, and to which the statute against gaming was pleaded, it was Held that he could not recover.

THIS was an action of DEBT on a bond, tried before ELLIS, Judge, at the Special Term, June, 1857, of Ashe Superior Court.

Plea, statute against gaming.

One Draughn held a judgment, in his favor, rendered against the defendants by a justice of the peace. The plaintiff and Draughn played at cards, and the plaintiff won the said judgment, which was delivered to him. The plaintiff took the judgment to the defendants, and representing himself as the owner, obtained from them the bond in controversy, in lieu of it, they being ignorant that the plaintiff had obtained the same by gaming.

The defendants afterwards paid Draughn the money on the debt. There was evidence that the gaming was unfair.

The Court was of opinion, and so instructed the jury, that the gaming between the plaintiff and Draughn, even though unfair, would not affect the contract between the plaintiff and the defendants; that the false representations in procuring the bond, and want of consideration, could not be enquired into in a court of law, the instrument being under seal. Defendants excepted to this instruction.

There was a verdict and judgment for the plaintiff. Defendants appealed.

Mitchell, for the plaintiff .

Avery and Lander, for the defendants .

PEARSON, J.

His Honor misapplied the rule, that to avoid a deed, there must be fraud in the factum, and not simply a fraud in procuring the party to execute it.

The rule is well established. It rests upon the ground, that if the execution of a deed is procured by a naked lie, or other management and undue influence, involving matter of conscience, a court of law cannot treat it as void, because it is the deed of the party, which he intended to execute, and the issue being on the plea of non est factum, must be found against him. But it is a rule equally well established, that a bond, which obliges a party to do an illegal act, or the consideration of which is against the policy of the law, is void, and will not be enforced in a court of justice. It rests on the broad ground, that no court will allow itself to be used when its judgment will carry out and consummate an act that is forbidden by law. The suggestion that a court of Equity will take the matter in hand as an affair of conscience, and enjoin the collection of the judgment, is not sufficient to induce a court of law to give a helping hand in furtherance of an unlawful act.

*2 The question is which of these two rules governs our case.

The distinction between a deed, whereby an estate is created, and a deed whereby a right, or chose in action merely, is created, may serve to point out the dividing line, and enable us to solve the question.

When the thing is done, and the estate vests, so that the contract is executed, as in the case of a feofment, or other conveyance of land, the estate cannot be defeated by a condition which is unlawful; for the condition is void, and so the estate is absolute. In...

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15 cases
  • Security Finance Co. v. Hendry
    • United States
    • United States State Supreme Court of North Carolina
    • April 29, 1925
    ......60, 53 S.E. 652, 4 L. R. A. (N. S.). 589, 8 Ann. Cas. 479; Puckett v. Alexander, 102 N.C. 95, 8 S.E. 767, 3 L. R. A. 43; Warden v. Plummer, 49. N.C. 524; Sharp v. Farmer, 20 N.C. 255, as follows:. . . .          "It. is well established that no recovery can be ......
  • Sec. Finance Co v. Hendry
    • United States
    • United States State Supreme Court of North Carolina
    • April 29, 1925
    ...53 S. E. 652, 4 L. R. A. (N. S.) 589, 8 Ann. Cas. 479; Puckett v. Alexander, 102 N. C. 95, 8 S. E. 767, 3 L. R. A. 43; Warden v. Plummer, 49 N. C. 524; Sharp v. Farmer, 20 N. C. 255, as follows: "It is well established that no recovery can be had on a contract forbidden by the positive law ......
  • Lloyd v. North Carolina R. Co
    • United States
    • United States State Supreme Court of North Carolina
    • December 23, 1909
    ...839, 2 L. R. A. 409; Puckett v. Alexander, 102 N. C. 95, 8 S. E. 767, 3 L. R. A. 43; Turner v. Railroad, 63 N. C. 522; Warden v. Plummer, 49 N. C. 524; Sharp v. Farmer, 20 N. C. 255; Wallace v. Cannon, 38 Ga. 199, 95 Am. Dec. 385. The decision in McNeill's Case, 132 N. C. 510, 44 S. E. 34, ......
  • Pierce v. Cobb
    • United States
    • United States State Supreme Court of North Carolina
    • March 5, 1913
    ...... money paid on it after it has been executed. Webb v. Fulchire, 25 N.C. 485 [40 Am. Dec. 419]; Warden v. Plummer, 49 N.C. 524; 15 Am. & Eng. Enc. (2d Ed.) 997. The rule rests upon the broad ground that no court will allow. itself to be used when ......
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