Same - Statutory Changes In The Law

In some of the states the common-law rules in relation to sealed instruments have been either altogether abolished or greatly modified by statute. In some states it is declared that any written instrument, whether under seal or not, is presumptive evidence of a consideration, and all distinctions between sealed and unsealed instruments are expressly abolished, and in these states want or failure of consideration may always be shown, even though the instrument is sealed.58

In other states the distinction between sealed and unsealed instruments is not altogether abolished; but it is declared that the seal shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same extent as if the instrument were not sealed.59 The New Jersey court, in an action on a sealed note presented by a father to his daughter as a gift, held that such a statute as this did not abolish all distinctions between simple contracts and specialties, but merely established new rules of evidence, for the purpose of allowing parties to an instrument under seal to show that there was no consideration, where they intended that there should be a consideration; and that it did not make it impossible for parties intentionally to enter into binding gratuitous promises.60

55 Smith v. Wood, 12 Wis. 425; Bayler v. Com., 40 Pa. 37, 80 Am. Dec. 551; Black v. Cord, 2 Har. & G. (Md.) 100; Keffer v. Grayson, 76 Va. 517, 44 Am. Rep. 171; Snyder v. Jones, 38 Md. 542; Anon., 12 Mod. 603. But see infra, note 57. See "Specific Performance," Dec. Dig. (Key-No.) §§ 49, 50; Cent. Dig. §§ 140-152.

56 Hazard v. Irwin, 18 Pick. (Mass.) 95; Goudy v. Gebhart, 1 Ohio St. 262; Mortland v. Mortland, 151 Pa. 593, 25 Atl. 150. See "Cancellation of Instru-ments," Dec. Dig. (Key-No.) §§ 4, 5; Cent. Dig. §§ 1-3.

57 Doughty v. Miller, 50 N. J. Eq. 529, 25 Atl. 153. And see WATKINS v. ROBERTSON. 105 Va. 269, 54 S. E. 33, 5 L. R. A. (N. S.) 1194, 115 Am. St. Rep. 880, Throckmorton Cas. Contracts, 43, where it is said, per Cardwell, J.: "There is much conflict among the authorities as to whether courts of equity will decree specific performance of an executory contract or covenant because it is under seal, where it is not also supported by an actual valuable consideration, and many of them take the negative view; but, undoubtedly, this is to be ascribed to the fact that the ancient rule of the common law, that a seal conclusively imports a consideration, has been repealed or modified by statute in most of the states, and text-writers in citing cases fail in many instances to make allowance for this fact." See "Cancellation of Instruments," Dec. Dig. (Key-No.) § 3; Cent. Dig. §§ 1-5; "Deeds," Cent. Dig. % 210.

58 There are such statutes as this in California. Kentucky, Indiana. Iowa, Kansas, Nebraska, Washington, and probably in other states. See "Seals." Dec. Dig. (Key-No.) §§ 1, 2; Cent. Dig. §§ 1, 2.