| Ill. | Dec 18, 1901
delivered the opinion of the court:
Counsel for the appellant contend that the appellee, as a guarantor, is not entitled to relief in equity; that the statute does not apply to guarantors, and cite Lucas v. Nichols, 66 Ill. 41" date_filed="1872-09-15" court="Ill." case_name="Lucas v. Nichols">66 Ill. 41, in support of the proposition. That case does not so decide.
Section 127 of the Criminal Code (Hurd’s Stat. 1899, p. 590,) provides: “Whoever keeps a common gaming house, or in any building, booth, yard, garden, boat or float, by him or his agent used and occupied, procures or permits any persons to frequent or to come together to play for money or other valuable thing', at any game, or keeps or suffers to be kept any tables or other apparatus, for the purpose of playing at any game or sport, for money or any other valuable thing, or knowingly rents any such place for such purposes, shall, upon conviction, for the first offense be fined not less than $100, and for the second offense be fined not less than $500, and be confined in the county jail not less than six months, and for the third offense shall be fined not less than $500, and be imprisoned in the penitentiary not less than two years nor more than five years.” And section 135 is as follows: “All judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements, and other acts, deeds, securities, or conveyances, given, granted, drawn or executed, contrary to the provisions of this act, may be set aside and vacated by any court of equity, upon bill filed for that purpose, by the person so granting, giving, entering into, or executing the same, or by his executors or administrators, or by any creditor, heir, devisee, purchaser or other person interested therein; or if a judgment, the same may be set aside on motion of any person aforesaid, on due notice thereof given.”
The evidence established the fact that the premises leased were kept by the lessee, Hogan, as a common gaming house; that persons frequented the place and came together there to play at games for money, and that the appellant, Harris, knowingly made the lease and rented the premises for such purposes; and it follows that if the contract of guaranty of the appellee, McDonald, and the judgment thereon rendered against him, fall within the things enumerated in section 135 as “all judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements, and other acts, deeds, securities, or conveyances given, granted, drawn or executed, contrary to the provisions of this act,” (the act in question,) such guaranty and judgment may be set aside in equity. It is clear that section 127 makes it a penal offense for any person to keep a common gaming house, or to procure or permit persons to frequent or come together in any building kept or occupied by him, to play for money or other valuable thing, at any game, or to knowingly rent any such place for such purposes. It cannot be doubted, then, that the lease, and the covenant therein to pay rent, were contrary to the provisions of said section 127, and that it and the judgment for such rent would, on sufficient proof, be set aside in equity, under section 135. If the lease to Hogan and his covenant to pay rent were contrary to the provisions of section 127, the contract of guaranty of such payment endorsed on such, lease and executed by appellee, McDonald, being an agreement, would be equally so, and subject, as would any judgment given thereon, to be set aside by any person interested therein. And this would seem to be so whether such lease, guaranty and judgment are considered as embraced in the class of gaming contracts enumerated in and declared to be void by section 131 or not. It is sufficient to give equity jurisdiction under section 135, on application of any person interested, that the contracts are contrary to the provisions of the statute. It being established that they are contrary to the provisions of section 127, they are void because in violation of law and against public policy, independently of section 131, which does not mention the acts denounced by section 127. A further penal provision for leasing a building to be used for gambling purposes is found in section 133, making the property so leased liable for any judgment obtained under section 132 by any person who loses money or other valuable thing therein at gaming. But this case does not involve said two last mentioned sections.
It is not a sufficient defense to the bill to prove that the complainant appeared and defended in the suit at law in which the judgment was rendered, it áppearing that the illegality of the contract, under the statute alleged in the bill as a ground for relief, was not set up or adjudicated in the action at law. (Mallett v. Butcher, 41 Ill. 382" date_filed="1866-04-15" court="Ill." case_name="Mallett v. Butcher">41 Ill. 382; Lucas v. Nichols, 66 id. 41; West v. Carter, 129 id. 249.) In these cases it was held that this statute takes cases of this character out of the general rule that a defense must be made at law if action is brought on the gaming contract. In the case at bar it was found by the decree that appellee had no knowledge, before the judgment sought to be set aside was rendered, that appellant had knowingly leased the premises to Hogan to be used for gambling purposes, and, of course, that defense was not made in the suit at law.
The decree of the circuit court and the judgment of the Appellate Court affirming it are in accord with the decisions of this court, and said judgment must be affirmed.
Judgment affirmed.