This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A sealed instrument was enforceable at Common Law because of its solemnity of form. It needed no consideration, and at law want of consideration was no defense.1 So a sealed contract for the sale of realty shows consideration sufficiently to comply with the statute of frauds.2 So a seal, even if by statute presumptive evidence only of consideration, shows consideration sufficiently to comply with a statute requiring a contract to answer for the debt of another to be evidenced by a written memorandum "expressing the consideration."3 It is often said that the seal imports a consideration,4 or that it estops the covenantor to deny that there was a consideration,5 but this expression of the rule shows a misapprehension of the history of the seal. A sealed contract was enforceable as such at Common Law long before consideration was thought of as an element of a contract. Historically it would be more correct to say that consideration was a substitute for the seal.6 To this Common Law rule there were at least two exceptions. Contracts in restraint of trade and marriage are, as has been pointed out elsewhere,7 merely void and not illegal. Yet a contract under seal in restraint of marriage would not be enforced, though a similar promise under seal to make a gift, without the consideration of a promise to refrain from marriage, would be enforceable.8 So a contract in restraint of trade, even if reasonable and so not even void, but valid as to subject-matter, would not be enforced without a valuable consideration, even if the contract was under seal.9
2Glanville, Book X., eh. XII.
3 Britton, I. 64b (Nichols's edition).
1 Rendleman v. Rendleman, 156 Ill. 568; 41 N. E. 223; Gourley v. Ry.. 96 Ill. App. 68; Bullen v. Morrison, 98 Ill. App. 669; Leonard v. Bates, 1 Blackf. (Ind.) 172; Ruth v. Ford, 9 Kan. 17; Van Valken-burgh v. Smith, 60 Me. 97; Eriekson v. Brandt. 53 Minn. 10; 55 X. W. 62; Saunders v. Blythe. 112 Mo. 1; 20 S. W. 319; Newark, etc., Church v. Bank, 57 X. J. L. 27; 29 Atl. 320; Dorr v. Munsell, 13 Johns. (N. Y.) 430; Cosgrove v. Cummings, 195 Pa. St. 497; 46 Atl. 69; Anderson v. Best, 176 Pa. St. 498; 35 Atl. 194; Carter v. King, 11 Rich. L. (S. C.) 125; Barrett v. Carden, 65 Vt. 431; 36 Am. St. Rep. 876; 26 Atl. 530; Wing v. Peck, 54 Vt. 245; Harris v. Harris, 23 Gratt. (Va.) 737.
2 Johnston v. Wadsworth, 24 Or. 494; 34 Pae. 13.
3 Kuener v. Smith, 108 Wis. 549; 84 N. W. 850.
4Sivell v. Hogan, 119 Ga. 167; 46 S. E. 67; Forthman v. Deters, - Ill. -; 69 N. E. 97; Consolidated, etc., Ry. Co. v. O'Neill, 25 Ill. App. 313; Wing v. Chase, 35 Me. 260; Erick-son v. Brandt, 53 Minn. 10; 55 N. W. 62; Saunders v. Blythe, 112 Mo. 1; 20 S. W. 319; Parker v. Parmele, 20 Johns. (N. Y.) 130; 11 Am. Dec. 253; Wester v. Bailey, 118 N. C. 193; 24 S. E. 9; Ducker v. Whit-son, 112 N. C. 44; 16 S. E. 854. "The law of nudum pactum is inapplicable to instruments under seal. The very fact of having a seal attached imports a consideration." Brown v. Brown, 44 S. C. 378, 381; 22 S. E. 412. So Carter v. King, 11 Rich. L. (S. C.) 125. "Want of consideration is not a sufficient answer to an action on a sealed instrument. The seal imports a consideration, or renders proof of consideration unnecessary; because the instrument binds the parties by force of the natural presumption that an instrument executed with so much deliberation and solemnity is founded upon some sufficient cause." Storm v. United States, 94 U. S. 76 (84).
5 Smith v. Smith, 36 Ga. 184; 91 Am. Dec. 761; Black v. Maddox, 104 Ga. 157; 30 S. E. 723. "The instrument relied on in this case being under seal, a consideration is imported which the promisors would be estopped to deny." Black v. Maddox, 104 Ga. 157, 163; 30 S. E. 723.
6 Walker v. Walker, 13 Ired. L. (N. C.) 335.
7 See Sec. 373-381, 424, 510.
8 Baker v. White, 2 Vern. 215; Key v. Bradshaw, 2 Vern. 102; Lowe v. Peers, 4 Burr. 2225; Sterling v. Sinnickson, 5 N. J. L. 756.