grantor part with all controul over the instrument, although the person to whom the deed is so delivered be not the agent of the covenantee (m). 3. Simple Contracts.—In speaking of simple contracts, we are to understand not only verbal promises, strictly so called, but also such as are reduced into writing, but are deficient in the formula of sealing and delivery over as deeds. It is an essential and leading principle of the law of contracts that agreements by parol, and such as are in writing, (but are not sealed and delivered as deeds,) have the same efficacy, properties, and effect. The difference is not between verbal and written contracts, but between parol or written contracts on the one hand, and specialties or obligations under seal on the other. It is true, that, by the Statute of Frauds (»), certain agreements must be reduced into writing, and signed by the party to be charged thereon; and other recent acts of Parliament render writing and signature indispensable requisites to the validity of particular promises (o). But the ceremonies of writing and of signature, are in these instances prescribed rather as necessary evidence of the contract or promise to which they refer, than as an essential or constituent part of the engagement itself (p). The character of the agreement, and its effects, are not altered. The forms of writing and signature are essential in the particular instance, but even when observed, the agreement acquires no greater vigour and force than such as belong to a contract of that class; and there are still wanting, and must be supplied, all the usual requisites of a simple contract to give it efficacy. Thus, a consideration is necessary to the validity of a simple contract, whether it be entered into verbally or in writing. "All contracts are, by the laws of England, distinguished into agreements by specialty and agreements by parol: nor is there any such third class, as some of the counsel have endeavoured to maintain, as contracts in writing. If they be merely written, (m) Doe d Garnons v. Knight, 5 B. & C. 671; 8 D. & R. 348, S. C. (n) 29 Car. 2, c. 3. (o) A promise to pay a debt barred by the Statute of Limitations, 9 G. 4, c. 14, s. 1; 3 & 4 W. 4, c. 42, s. 5; or by Infancy, 9 Geo 4, c. 14, s. 5; or by a Bankrupt's Certificate, 6 G. 4, c. 16, s. 131; must be in writing. (p) Sed per Cur. Thornton v. Kempster, 5 Taunt. 788; Egerton v. Matthews, 6 East, 307. It is on this ground that a party may sue on a contract, although it te void as against himself for want of his signature under the Statute of Frauds, id.; and although in general a contract must be obligatory on both parties. See post, 13. and not specialties, they are parol, and a consideration must be proved (q).” The solemnity and deliberation with which, on account of the ceremonies to be observed, a specialty is presumed to be entered into, attach to it an importance and a character which do not belong to a simple contract. Thus, to mention the most striking distinction, in the case of a contract not under seal, a consideration is absolutely necessary to give it validity, but in the instance of a specialty, no consideration whatever is in general requisite to render it obligatory, even in a court of equity (r). A deed is good, though it be voluntarily given, if it be not obtained by fraud, and do not impugn any of the rules of law intended for the protection of creditors (s). The technical doctrine of estoppel, applies, in general, to deeds and records only; not to simple contracts (t). It is not, however, (q) Per Skynner, C. B., in delivering the opinion of the Judges in Rann v. Hughes, in Error, Dom. Proc. 7, Term R. 350, note (a); 7 Bro. P. C. 551. S. C.; 3 Burr. 4th ed., 1672, note (e); 1 Bac. Abr. 5th ed., 112, marginal note, tit. Agreements, (B 2). (r) Plowd. 308; 2 Bla. Com. 446; Fallowes v. Taylor, 7 T. R. 475, 477; Binnington v. Wallis, 4 B. & Al. 650, 652. And see per Best, C.J., Morley v. Boothby, 3 Bing. 111, 12; 1 Fon). Tr. Eq. 5th ed., 342, note. But it seems that equity will not in general decree a specific performance of a deed entirely without consideration. See 1 Foubl. 151, n.; Wycherley v. Wycherley, 2 Eden, 177; Groves v. Groves, 3 Y. & J. 163. In the case of a deed which operates in partial restraint of trade, some consideration must exist. Homer v. Ashford, 3 Bing. 322. (s) See 13 Eliz. c. 5 ; 27 Eliz. c. 4 ; Roberts on Fraudulent Conveyances; E. Chitty's Eq. Index. tit. Deeds, 3, and Debtor and Creditor, 6; Shears v. Rogers, 3 B. & Ad. 362. In the case of a conveyance by bargain and sale there must be some pecuniary consideration to raise a use See 2 Saunders on Uses, 3d ed. 45; Shep. Touch. 221; 2 Bla. C. 338; 4 Cruise Dig. 2d ed. 27, 127, 136, 145. Barton, Index, Considerations. In the case of a covenant to stand seised to uses there must be a good consideration. No consideration is necessary where the conveyance is by release; see id. As to the difference between a good and valuable conside ation, see post; Shep. Touch. 221; 2 Bla. Com. 296-7, note (7), Chitty's ed. The general rule is that a voluntary conveyance by deed is good both at law and in equity against the party himself, id. Fonb. Tr. Eq. b. 1, c. 5, s. 2. A voluntary settlement of lands made in consideration of natural love and affection is void as against a subsequent purchaser for a valuable consideration, though with notice of the prior settlement before al the purchase money was paid, or the deeds executed, and though the settler had other property at the time of the prior settlement, and did not appear to be then indebted, and there was no fraud in fact in the transaction; for the law which is in all cases the judge of fraud and covin arising out of facts and intents, infers fraud in this case upon construction of the statute, 27 Eliz. c. 4; Doe d. Otley v. Manning, 9 East, 59. It should be observed, that although a consideration is not necessary in general to give effect to a deed or covenant under seal, yet the total failure of a consideration, obviously intended to exist, and upon which the instrument is meant to be founded, will afford a defence. See this doctrine examined in Rose v. Poulton, 2 B. & Ad. 822. (t) 2 Bla. Com. 295. Com. Dig. 1 to be supposed that a contract has not any effect as an admission against a party, because it is not under seal. On the contrary, an admission in such a contract is strong presumptive evidence against the party, but it is not conclusive. He is not absolutely precluded from shewing the real truth. Whereas a deed operates as a conclusive bar, and prevents all inquiry into the truth; except in the cases of duress, fraud, incompetency to enter into the deed, or illegality of consideration or object in making it. These may be shewn to defeat the deed, although the instrument afford on the face of it no reason to suspect them, or even though it state facts which, if true, would negative their existence (u). As a deed is a security of a higher nature, it operates as a merger or extinguishment of a simple contract in respect whereof it was entered into (a), upon the same principle that a judgment upon a specialty merges it (y); and a liability upon a deed cannot be varied, released, or discharged, so as to defeat an action thereon, except by an instrument of equal force and importance (z). And in regard to the remedy presented by law upon the nonperformance of a specialty obligation, we may trace the partiality and favour shewn to deeds. In the case of a simple contract, the only remedy at law upon the death of the promiser is against his personal representatives, that is, his executors or administrators (a); with this exception, that if he were a trader subject to the bankrupt law, his real estate is liable in equity to the payment of his simple contract debts, after his creditors by specialty have been paid in full (b). But a specialty affects the realty of the covenantor or obligor even at law; and upon the death of such party, his heir, (if the Estoppel (A). See Taylor v. Clow, I B. & Ad. 223. A recital in a deed of a particular fact estops the party. Shelley v. Wright, Willes R. 9; 2 B. & Ad. 544. Estoppel is when a man is concluded by his own act or acceptance to say the truth; and it may be by matter of record, of writing, or in pais. Co. Lit. 352, a. "A deed is essential to an Estoppel," per Bayley, J., Pike V. Eyre, 9 B. & C. 914. A bill of lading is not conclusive between the shippers of goods and the ship-owner. Bates v. Todd, 1 M. & R. Rep. 106. Nor is a receipt conclusive evidence; Graves v. Key, 3 B. & Ad. 313. (u) Collins v. Blantern, 2 Wils. 341; Hayne v. Maltby, 3 T. R. 438; Paxton v. Popham, 9 East, 408; Hill v. The Manchester and S. Water Works Company, 2 B. & Ad. 544. A party conveying land by deed not estopped from showing the conveyance is void in law. Doe d. Preece v. Howells, 2 id. 744. (x) Bac. Abr. Debt, G.; Per Lord Ellenborough, Drake v. Mitchell, 3 East, 258, 9. This rule will be considered hereafter. (y) See id. 3 Chit. Com. L. 11. (~) Co. Lit. 222 b, note 2; Littler v. Holland, 3 Term R. 590: per Cur. Braddick v. Thompson, 8 East, 346. See post. (a) 9 Co. 89 a; 3 Bla. C. 302; 1 Chit. Pl. 5th ed. 58. (b) ILG. 4, & 1 W.4, c. 47, s. 9. obligation expressly bound the party "and his heirs," and if the heir have assets by descent,) and his devisee, are jointly liable to an action thereon (c). So a specialty debt is entitled to a preference or priority over a simple contract claim in the payment of the debts of a testator or intestate (d); but not in the liquidation of the claims on a bankrupt's estate under a commission; the bankrupt laws being founded on a principle of equality. The legislature in the reign of James I. (21 Jac. 1. c. 16.), prescribed certain periods within which actions upon simple contracts should be brought; but until the statute 3 & 4 W. 4, c. 42, s. 3, there was no direct limitation of time in regard to the prosecution of a specialty claim, or a demand founded on a record (e). It is however a common law rule of some standing, that after twenty years it shall be presumed that even such a debt has been satisfied, in the absence of facts rebutting the inference arising from the non-claim and delay (f). And even in respect to pleading there are distinctions between actions upon deeds and actions upon agreements not under seal. The common action of assumpsit does not lie upon a deed; and thus is avoided in actions upon specialties all the laxity and vagueness which attend declarations in indebitatus assumpsit, and the general issue in that form of action. It is necessary to declare specially upon a deed, as such; and to make a profert in curiam thereof, or to allege upon the record an excuse for the omission to make such profert (g). And when a profert is Lecessary, the defendant is entitled to oyer of the deed (h). And in general the illegality of a deed under a statute can be objected only by a special plea (i). But in declaring upon a simple contract it is in general unnecessary to shew it specially; no profert is requisite; nor can oyer be successfully claimed, although in particular instances the Court will, in the exercise of its discretion, (c) See the Statute 11 G. 4, & 1 W. 4, and Bac. Ab. Heir; 2 Saund. 7, n. 4, 8 d; 136,7, n. 4, 5th ed; 2 Bla. C. 243.; Platt on Cov. 41, 449. (d) 2 Bla. C. 465. (e) The Common Law Commissioners, in their third Report, recommended a positive limitation of twenty years, as to specialties and records, with the usual exceptions as to persons under disabilities; and in the case of part pay ments, or written acknowledgments, (f) See the Cases, Tidd. 9th ed. 18. (i) Id. 519, 520. compel either party to permit an inspection of a written agreement, and will enforce the delivery of a copy to the opponent. And in assumpsit, illegality of consideration forms a defence under the general issue. A contract or agreement, not under seal, may be defined, or described to be the mutual assent of two or more persons, competent to contract, founded on a sufficient and legal motive, inducement, or consideration, to perform some legal act, or omit to do any thing, the performance whereof is not enjoined by law (k). From which definition it appears that to constitute a sufficient agreement, there must be: 1st. The reciprocal or mutual assent of two or more persons competent to contract ;—2ndly. A good and valid consideration ;-3rdly. A thing to be done which is not forbidden, or a matter to be omitted, the performance of which is not enjoined by law (7). The statutable requisites of a contract in regard to its being deduced into writing, &c. in certain cases, and also in respect to the necessity of stamping written agreements; and the law respecting the competency of particular parties to contract, and the subject matter of the agreement; will be considered in a subsequent part of the work. The requisites of mutual assent and of consideration now demand our attention. 1. Of the Assent of the Parties.-In order to constitute a binding contract, there must be a definitive promise by the party charged, accepted by the person claiming the benefit of such promise. No contract is raised by a mere exparte affirmation (k) Com. Dig. Agreement, 1 (A); Plowd. C. 17 a, 5 a, 6 a; Wain v. Warlters, 5 East, 16, per Lord Ellenborough. See 3 Chit. Com. L. 2, &c.; 3 Bla. C. 442. (1) It is of the essence of obligations that there should be, 1st, A cause from which the obligation proceeds; 2ndly, Persons between whom it is contracted; and, 3rdly, Something which is the object of it." I Pothier on Obl. Part 1. Ch. 1. "Le contrat est un convention par laquelle une ou plusieurs personnes s'OBLIGENT envers une ou plusieurs autres, à donner, à faire, ou à ne pas faire, quelque chose." "Quatre conditions sont essentielles pour la validité d'une convention; le consentement de la partie qui s'oblige; sa capacité de contracter ; un objêt certain qui forme la matière de l'engagement; une cause licite dans l'obligation." Code Napoleon, or French Civil Code, Des Contrats', Book 3, Title 3, Ch. 1, 2, Art. 1101, 1108. Rognon, in his edition (1831) of the Code, thus comments on the words "sont essentielles."-viz. ainsi l'absence d'une seule de ces quatre conditions empéche que le contrat n'existe; and on the words "de la partie qui s'oblige," he remarks, "Readaction incomplete. Il faut ajouter: et de la partie envers laquelle on s'oblige. Car il n'y a pas de contrat même unilateral, sans le consentement des deux parties.' |