1. The Court of Appeals properly affirmed the judgment of the court below sustaining the demurrer to the defense based upon the defendant’s contention, that they were mere sureties upon the notes given for the purchase-money of.the property in question and sued upon by Owens, the holder.
2.But we are of the opinion that the defense set up by way of amendment, based upon the ground that the notes were un*74enforceable because they were based upon an illegal and immoral consideration, was meritorious, and the trial court erred in sustaining the demurrer thereto; and the Court of -Appeals, instead of affirming the judgment of the court below, should have reversed it. From the statement of facts in the case of Abbott Furniture Co. v. Mobley, 141 Ga. 456 (81 S. E. 196), it appears that trover was brought for specified articles of furniture and other household goods which had been sold upon conditional sale with reservation of title in the vendor till payment of the price, and that the goods thus sold were to be used in' a house of ill fame, the vendor, the plaintiff, knowing that they were to be so used and intending the use to be in aid of the maintenance of such house. Such was the defense set up, and this court held that a demurrer to the defense was properly .overruled; and held further, that there could be no recovery in the case if it appeared upon the trial that the answer of the defendant was supported by the facts of the case. See also the case of Watkins v. Nugen, 118 Ga. 372 (45 S. E. 262). In the case of Kessler v. Pearson, 126 Ga. 725 (55 S. E. 963, 8 Ann. Cas. 180), it was held: “If a house be let with intent that it shall be used for the purposes of prostitution, the landlord cannot recover the rent.” In the case of Harris v. Barfield Music House, 18 Ga. App. 444 (89 S. E. 592), it was ruled: “To keep a lewd house is penal under the laws of this State, and any person who knowingly rents or sells personal property to be used in such a house will not be assisted by the courts to recover such property or the value thereof. The contract, being contra bonos mores, will not support an action.” In the amendments which were stricken upon demurrer in the instant case it was alleged that Buchanan “built said house, and sold said house to these defendants for the purpose of conducting therein a house of prostitution in violation of the law, that these defendants informed the said Buchanan of the purpose of their purchasing said house to carry on therein acts of prostitution;” and knowledge of these facts on the part of Owens at the time of his purchase of the notes is alleged. The sale of the house and lot and the giving of the bond for title and the notes formed one indivisible contract. The sale of the house and lot under the circumstances alleged in the plea made Buchanan a participant in the immoral purposes for which the house was° purchased and for which it was to be used; *75and the notes given to him based upon such a consideration were not enforceable in the hands- of one who took with or without notice. Civil Code, § 4286. Cases cited by defendant in error, that where one lends money to a party who intends to use the same for some illegal purpose, such fact will not prevent recovery on notes given for the money, although the lender knew or had reason to Suspect the purposes for which the money would be used by the borrower, are not in point. If A lends money to B, although he might know from B’s character and the circumstances under which he borrows the money that he would use it' in gambling and would lose it in the game, if A does not participate in any way in the criminal purpose and intent and is in no way concerned in the gains or losses of B, he can enforce the payment of the note given for the money borrowed. But if he were to engage in the game with B and took a note for B’s losses to him, the note would not be enforceable in his hands nor in the hands of a transferee. The defendants, the original makers of the notes sued on, are entitled to have the issue made by their answer submitted to a jury. And exceptions to the ruling of the trial judge upon this question in the case should have been sustained.
Judgment reversed.
All the Justices concur.
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