The opinion
*190
Hatoher, Judge,
dissenting:
In tbe plaintiff’s amended bill be states specifically tbat tbe agreement witb Cabell in case plaintiff conld not secure tbe loan referred to in tbe majority opinion was, that Cabell “would return to tbe said plaintiff all of tbe consideration paid by the said plaintiff upon tbe said purchase and tbe said plaintiff would return to tbe said H. L. Cabell tbe said Shrews-bury Street property. ’ ’ If tbe Cabell deed was not to become effective before the loan was consummated, there would have been no need of an agreement for Brown “to return to tbe said H. L. Cabell” tbe lot. Brown would not have agreed to return something be did not expect to get. Tbat he did construe tbe deed from Cabell as effective upon delivery to pass title to, as well as physical possession of, tbe lot is demonstrated by allegations showing tbat be treated the lot as an absolute owner, namely, that be forthwith executed a deed of trust on tbe lot, and tbat be not only “moved on” tbe lot but erected thereon
at his own cost
a dwelling bouse and a store building. To my mind it is incomprehensible tbat Brown should have considered tbe deal ineffective, as be now contends, and yet have expended $8,000.00 improving tbe lot, without an agreement witb Cabell to repay him for tbe improvements. No such agreement is alleged, and no accounting for the $8,000.00 so expended is prayed for. Tbe rule upon which tbe majority opinion is based does not in my opinion apply to this suit; as Cabell delivered tbe deed to Brown not “to take effect only upon tbe happening of a future contingency” (as the rule contemplates) but to take immediate effect.
A condition subsequent is defined as one “which operates upon estate already created.” It seems to me tbe condition alleged is such a condition, and tbat oral proof is not permissible to ingraft tbat condition upon tbe written instrument between Cabell and Brown.
Continental Trust Co.
v. Witt, 139 Va. 458 ;
Bradshaw
v.
Farnsworth,
65 W. Va. 28 ;
Orrick
v.
Dawson,
67 W. Va. 403 . Moreover this court is committed to tbe rule tbat such an instrument cannot be delivered by tbe grantor to tbe grantee in escrow.
Rouss
v.
Rouss,
90 W. Va. 646, 652 ;
Hensley
v.
Swann,
93 W. Va. 49, 53-4 . Therefore I respectfully dissent.