(p) Lects. IV, V.
(q) See Fallowes v. Taylor, 7 T. E. 475.
(r) See Sharington v. Strotton, Plowd. 308 a; Cruise, Dig. tit. xxxii. c. 11, as. 54 and 55.
1 Thus in Kennedy v. Ware, 1 Pa. St. 445, the Court refused to give effect to an unsealed assignment of a judgment, intended as an advancement to the assignor's daughter, on the ground that although natural love and affection were sufficient in a sealed instrument to raise a use, yet that they of themselves formed no consideration to support a mere parol gift.-r.
Though in a contest with creditors a bond or conveyance without consideration is void, yet it is not so as between the parties. It may be, and often is, an element in the question of actual fraud or duress. "What effect has want of consideration by the common law, in regard to a bond or a judgment? Certainly none to destroy the conclusiveness of the seal or of the recovery. A voluntary bond is, both in equity and at law, a gift of the money :" Gibson, C. J., in Sherk v. Endress, 3 W. & S. 255; Harrell v. Watson, 63 N. C. 454; Parker v. Flora, lb. 474; Harris v. Harris, 23 Gratt. 737. A voluntary bond from a father to his child, though it must be postponed to creditors, yet is good against heirs, legatees and all who stand in no higher equity than the obligor himself: Candor & Henderson's Appeal, 27 Pa. St. 119; Carter v. King, 11 Rich. Law 125.-s.
There are, however, some deeds deriving their effect from the Statute of Uses (x), that is, a bargain and sale, and a covenant to stand seized to uses, both of which are void without a consideration; the first requiring a pecuniary one, and the latter a consideration of blood or marriage (y).2 Contracts in restraint of trade pecuniary consideration. It has been held in some cases that this is essential; but the established rule seems to be that any valuable consideration is sufficient to support a deed of bargain and sale. It may be expressed in the deed or proved aliunde, and if a consideration be expressed, something different, provided it be not inconsistent, may be shown to have been the actual consideration. It is always competent to show that the consideration was something different from that which is stated, or that it has not in fact been paid, for any purpose except to affect the validity of the deed as a conveyance of title. For that purpose the acknowledgment of consideration in the deed is conclusive. See Williams, Real Prop.*188; 2 Washburne, Real Prop. *613; note 1, p.*21,infra. 26 tern,1 the consideration was the compromise of an indictment for perjury; in Coppock v. Bower (d), the compromise of an election petition; in Hindley v. M. of West-meath (e), a future separation between husband and wife (/). In these cases the illegality consisted in the infringement of the rule of the common law, which looks upon such contracts as *improper. In other cases, as I said, the contravention of a statute has been held equally fatal: as, of the statutes against gaming (g); of the Acts for licensing playhouses (h); of the stat. 6 Anne, c. 16, for requiring brokers acting within the city and liberties of London to procure themselves to be admitted by the Lord Mayor and Aldermen (i).2 And a great variety of examples might be
(s) Plowd. 308, supra.
(t) Post, Lect. V., " Moral Considerations."
(u) Turner v. Vaughan, 2 Wils. 339; Nye v. Mosely, 6 B.&C. (13 E. C. L. R.) 133.
(x) 27 Hen. VIII. c. 10.
(y) Sheep. Touch. 510; 2 Bl. Comm. 338.
1 The seduction of an innocent woman by a pretended marriage is a valuable consideration for a deed subsequently made to her and her children: Doe v. Horn, 1 Ind. 363. This was a case in which the question arose as to creditors, and, of course, as to them, being third parties, the seal was unimportant. A seal does not protect an illegal contract founded on a consideration, contra bonos mores: Gray v. Hook, 4 N. Y. 449. There is one American case which accords with the doctrine that past cohabitation is not a good consideration to support a promise: Singleton v. Bremar, Harp. 201. But Shenk v. Mingle, 13 S. & R. 29, rules expressly the contrary.-s.
2 Prior to the passage of the Statute of Uses it was the rule that any conveyance made without consideration passed the property to the grantee, but to the use of the grantor. That statute, in the language of Blackstone (Book II., p. 333), "executes the use, as our lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession, thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity." Hence it is essential that in the case of a covenant to stand seized to uses it shall be expressed to be made in consideration of blood or marriage, and in a deed of bargain and sale, the conveyance be either for a consideration expressed in the deed, or that it shall be made to the grantee and his heirs to and for the use of the said grantee and his heirs.
Practically, it is customary to express in an ordinary deed that it is made to the use of the grantee and his heirs, as well as to them; and that it is for a also are void, if made without consideration, although, under seal (z).
But here, again, you must observe another well-known and important distinction, namely, that though it is not necessary to show on what consideration a deed is founded, a party sued on it is always, on his part, allowed to show that it was *founded on an illegal or immoral consideration, or that it was obtained by duress or by fraud; for, were the law otherwise, deeds would, to use the expression of Lord Ellenborough (a), be made use of as covers for every species of wickedness and illegality. It is therefore a well-established proposition, that a deed may be invalidated by showing that it is tainted by such circumstances (b). And it signifies not whether the illegality objected to it be a breach of the rules of common law, or consist in the contravention of the provisions of some statute, or whether the prohibition of the statute be expressed in direct terms, or be left to be collected from a penalty being inflicted on the offender (c). Thus, in Collins v. Blan(z) Mitchell v. Reynolds, 1 P. Wms. 181. See Wallis v. Day, 2 M. & W. 277; Horner v. Graves, 7 Bing. (20 E. C. L. R.) 744; Hutton v. Parker, 7 Dowl. 739; Mallan v. May, 11 M. & W. 665; Tallis v. Tallis, 22 L. J. (Q. B.) 185; 1 E. & B. (72 E. C. L. E.) 39; Collins v. Locke, 4 App. Gas. 674; 48 L. J. (P. C)68.