The case of Givens v. Rogers, et al. decided at the present term, is fully in point as to the illegality of this contract, and also that there could be no recovery against the surety, if a promise could be implied, upon the refusal of the principal to deliver up the subject of the wager, as against him, and that the suit being against both, upon a joint promise, the recovery must be against all or none.
In that case, the subject of the wager was a wagon and harness ; in this it is a tract of land, for which a deed was executed to one of the defendants, at the time the notes were made, here sought to be enforced. Whatever may be the right of the winner, to recover the value of a chattel, which the loser refusing to pay his bet, withholds, it is manifest there can be no recovery upon an implied contract for the sale of land in a court of law, which is not in writing. But that opposes no obstacle to a recovery of the land in this case, if withheld from the true owner. The act of 1807 makes all conveyances founded on such a consideration as this, absolutely void. After enumerating a number of games, the act declares that all notes, bills, bonds, conveyances, &c. the consideration of which is money, or other valvable thing, laid or betted at any of the enumerated games, u or on any wager whatever,” shall be utterly void, and of no eifect, to all intents and purposes whatsoever, (Clay’s Dig. 257, § 1,) and this being a wager, expressly prohibited by law, is within the precise terms of the statute.
The deed, therefore, which was executed in this case, being void, the real owner may recover the land by an action of ejectment, or trespass to try title.
From this it results, that the court erred in its charge to the jury, and its judgment must be reversed, and the cause will not be remanded unless desired.