Good con but you do not agree in consideration of such payment to do or forbear something at my request, there is no consideration for my promise, and the law will not give you damages if I fail to fulfil it, unless it is made by deed. But if I were to agree with you to give you five shillings if you would walk half a mile, and you were to perform your part of the contract, there would be a consideration for my promise, viz., the trouble that you would have taken in walking the half-mile. If I were to promise to give you dinner at my house if you would come at a certain time, and you were to come, there would be a binding contract, the consideration for the dinner being the trouble that you would have had in coming. On the other hand, if we were to agree that I should at my expense send to you at your house a dinner from the cook's shop, there would be no consideration moving from you, and the law would not hold me to my promise. But, in the latter case, if I engaged under seal, that is, by deed, to send you the dinner, the fact of the contract being made by deed would do away with the necessity of any consideration, and I should be bound. In the absence of fraud no inquiry is admitted as to the adequacy of the consideration. (Westlake v. Adams, 5 C. B. N. S. 248, at p. 265; Pollock, Contr. 169.) "Good consideration" merely means the motive of sideration. natural affection towards relations, and has no validity against creditors or purchasers. The only effect of it is to raise the use in covenants to stand seised (e). Recapitulation of the doctrine of considerations. The doctrine of consideration may be stated, shortly, as follows: Every simple contract requires a valuable consideration to support it. A contract under seal does not require any consideration. to support it as between the parties. But if there be no valuable consideration, it may possibly be void as against third parties under the 13 Eliz. c. 5, and 27 Eliz. c. 4. the other"; Currie v. Misa, L. R. (e) See Leake, Law of Prop. in Land, 109, 110. CONSIDERATION. 71 Either a valuable or a good consideration is sufficient to Consideraraise a use, or to prevent a resulting use. tion neces sary to The subject is explained in a very lucid manner in Leake's raise a use. Law of Contracts, ch. i. s. 1. See also Pollock, Contr. ch. iv. p. 164; M.L. R. P. 379, 380, and Interp. ch. xi. pp. 145 et seq. There are two reasons why we always express the consideration in a conveyance. The first depends upon the doctrines of Equity as to raising a use. If, before the Statute of Uses, one man enfeoffed another, the Court of Chancery held that, unless the motive was one which was adequate, the feoffor remained entitled to the use; in other words, that the use resulted" to the feoffor (ante, p. 12). On the other hand, if the motive was adequate, if the feoffment was made for consideration, whether valuable or good, the use enured to the feoffee. It will be remembered (f) that the statute has not altered the nature of a use; all that it does is to clothe the use with the legal estate. So at this day, if any conveyance operating by transmutation of possession (see M. L. R. P. 373), and containing no declaration of uses, were to be made without consideration, there would be a resulting use to the person who conveyed, so that he would retain the legal estate; though, if the conveyance contained a declaration of uses, the cestui que use would, by force of the statute, take the legal estate. On the other hand, if a conveyance purporting to operate by virtue of the Statute of Uses, were to be made without consideration, no use would be raised, and therefore nothing would pass. The second reason for expressing the consideration in a deed is that certain contracts not made for a valuable consideration may, though binding on the parties, be void as against persons who are not parties; and, although you are always at liberty to prove the true consideration when it has not been expressed in the deed (g), the fact of its not being stated gives rise to the necessity of the proof. ch. iii. Sect. II. p. 105. (ƒ) Ante, p. 6, and see Leake, Law of Prop. in Land, Pt. I. (g) See Interp. Rule 39, p. 145. Conveyances void as against creditors. Voluntary convey ance. The effect of the statute 13 Eliz. c. 5, made perpetual by 29 Eliz. c. 5, is to render any conveyance made by a man in debt to such an amount that he has not ample means to pay his debts void against his creditors, unless the conveyance be bonâ fide and for a valuable consideration. (See M. L. R. P. 110 et seq.; Holmes v. Penney, 3 K. & J. 90.) Thus, if a man after his marriage makes a settlement on his wife and children, merely on account of his natural love and affection for them (which does not constitute a valuable consideration), it is liable to be set aside by his creditors, whether it be of real or personal property. If it be of real property, the settlor could, till lately, sell the property for value, just as if he had not settled it. This was the result of the 27 Eliz. c. 4, which made void, as against purchasers for value, conveyances of lands made with intent to defraud and deceive purchasers. By a judicial interpretation of the statute it became established as a rule of law that, if a man made a voluntary conveyance of lands to A., and then made a conveyance of the same lands for valuable consideration to B., the voluntary conveyance to A. was fraudulent and void under the statute against B. This doctrine rested on the ground that "by selling the property for a valuable consideration, the seller so entirely repudiates the former voluntary conveyance and shows his intention to sell, as that it shall be taken conclusively against him and the person to whom he conveyed" (sc. by the voluntary conveyance), "that such intention existed when he made the [voluntary] conveyance, and that it was made in order to defeat the purchaser" (h). This "forced and harsh construction," as it has been called (i), is now displaced by the Voluntary Conveyances Act, 1893 (56 & 57 Vict. c. 21), which enacts that (k) no voluntary conveyance (h) Doe d. Newman v. Rusham, 17 Q. B. 724. See M. L. R. P. 112, and 2 Vaizey on Settlements, 1538 et seq. (i) Clarke v. Wright, 6 H. & N. 870, per Cockburn, C.J. (k) Subject (s. 3) to cases in which there have been dealings VOLUNTARY CONVEYANCE. of lands, whether made before or after the passing of the Act (29th June, 1893), if in fact made bonâ fide and without any fraudulent intent, shall be deemed fraudulent within 27 Eliz. c. 4, by reason of any subsequent purchase for value, or be defeated under that Act by a conveyance made upon any such purchase. (The 27 Eliz. c. 4, is not repealed.) Where there has been a voluntary settlement made before 29th June, 1893 (Clarke v. Willott, L. R. 7 Ex. 313), there is considerable difficulty in accepting a title deduced either through persons claiming under the voluntary settlement or through the settlor himself. On the one hand, it is not safe to take a conveyance from persons claiming under the settlement, because the settlor may subsequently, before 29th June, 1893, have dealt with the property for value, and thus defeated the settlement; and, on the other hand, it was not safe to take a conveyance from the settlor though made for value, before 29th June, 1893, because it might turn out that there was in fact a valuable consideration for the settlement, though it was apparently voluntary, or that the beneficiaries claiming under the settlement had dealt with their interests for value, and thus the settlement might take effect, or partial effect, against a subsequent purchaser for value from the settlor (1). The Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 47, provides that any "settlement" (i.e., any conveyance or transfer) of property, not being (1) a settlement made before and in consideration of marriage, or (2) made in favour of a purchaser or incumbrancer in good faith and for valuable consideration, or (3) a settlement on the wife or children of the settlor of property accruing to him after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of the settlement, be void as against the trustee in bankruptcy, and shall, if the settlor becomes bankrupt at any subsequent for value with the land before 29th June, 1893. (1) Clarke v. Willott, L. R. 7 Ex. 313. 733 Nominal tion. time within ten years after the date of the settlement, be void as against the trustee in bankruptcy, unless the parties claiming under the settlement can prove that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property had passed to the trustee of the settlement on the execution thereof. But a conveyance for value by a person claiming under the voluntary settlement to a person. who has no knowledge of the insolvency of the settlor, is valid against the trustee in bankruptcy notwithstanding this section, as on the construction of the Act "void" means "voidable" (m). Formerly it was usual to state the payment to every considera- conveying party of a nominal pecuniary consideration. This practice is now obsolete, except where a freeholder wishes to create a term in favour of trustees; for, in the absence of the consideration, raising a use in their favour, which becomes an estate in possession by virtue of the Statute of Uses, they would only have an "interesse termini " till they entered. In other cases it can do no good. Considera tion ex pressed in words. The consideration is always stated in words at length in the first witnessing clause; and, where there is more than one witnessing clause, it is referred to in the subsequent witnessing clauses as "the consideration aforesaid." The consideration, in the simple case of one vendor and one purchaser, may be expressed as follows, "in consideration of the sum of £, now paid to the said [vendor] by the said [purchaser];" and is generally followed by a simple receipt clause in a parenthesis, "the receipt whereof is hereby acknowledged." Till lately it was customary to follow the (m) Re Vansittart (1893), 2 Q. B. 377; In re, Brall, ibid. 381; approved by the Court of Appeal in Re Carter and Kenderdine's Contract (1897), 1 Ch. 776. Where the settlement is set aside the trustee in bankruptcy gains no priority over incumbrancers subsequent to the settlement. Sanguinetti v. Stuckey's Banking Co. (1895), 1 Ch. 176; approved in Re Farnham (1895), 2 Ch. 799. |