Wills v. Kempt

         I. The facts set out in the complaint are sufficient to maintain the action and justify the decree. So long as a right is in doubt, equalityin a compromise cannot be considered, as it is a sufficient consideration for an agreement. (Roche v. O'Brien, 1 Ball & Beatty, 354.)

         A party having doubtful title entering into a compromise agreement with due deliberation, the agreement will be enforced without inquiring into the consideration. (Naylor v. Mynch, 1 Simons & Stewart, 568; 1 Chitty's Eq. Dig. 87, sec. 6, and cases cited; Id. 89, sec. 4, and cases cited.)

         The consideration need not be expressed in the agreement, but may be alleged and proved aliunde, if the allegations and proof do not contradict the agreement. (1 Chitty's Eq. Dig. 84, secs. 4, 5, 6, and cases there cited.)

         The complaint alleges a sufficient consideration for the contract moving to appellants, and this consideration as alleged is admitted by the demurrer. Although a consideration be essential to support a contract, yet it is not necessary that it should be expressed in writing, even though the contract itself be in writing, provided it be proved in point of fact. (Story on Cont. sec. 428, and cases cited; Id. 429-442.)

         JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. and Baldwin, J. concurring.

         OPINION

         COPE, Judge

         The objection that the complaint does not show a sufficient consideration for the agreement is not well taken. The agreement is under seal, and it is unnecessary that the consideration should have been expressed. The law imports a consideration from the seal, and no averment upon the subject was required. (See McCarty v. Beach, 10 Cal. 461 .)

         The demurrer was properly overruled, and the judgment is affirmed.