Brown v. Cabell , 111 W. Va. 186 ( 1931 )

In the plaintiff's amended bill he states specifically that the agreement with Cabell in case plaintiff could not secure the loan referred to in the majority opinion was, that Cabell "would return to the said plaintiff all of the consideration paid by the said plaintiff upon the said purchase and the said plaintiff would return to the said H. L. Cabell the said Shrewsbury Street property." If the 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 the said H. L. Cabell" the lot. Brown would not have agreed to return something he did not expect to get. That he did construe the deed from Cabell as effective upon delivery to pass title to, as well as physical possession of, the lot is demonstrated by allegations showing that he treated the lot as an absolute owner, namely, that he forthwith executed a deed of trust on the lot, and that he not only "moved on" the lot but erected thereon at his own cost a dwelling house and a store building. To my mind it is incomprehensible that Brown should have considered the deal ineffective, as he now contends, and yet have expended $8,000.00 improving the lot, without an agreement with Cabell to repay him for the improvements. No such agreement is alleged, and no accounting for the $8,000.00 so expended is prayed for. The rule upon which the majority opinion is based does not in my opinion apply to this suit; as Cabell delivered the deed to Brown not "to take effect only upon the 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 the condition alleged is such a condition, and that oral proof is not permissible to ingraft that condition upon the 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 the rule that such an instrument cannot be delivered by the grantor to the grantee in escrow. Rouss v. Rouss, 90 W. Va. 646, 652;Hensley v. Swann, 93 W. Va. 49, 53-4. Therefore I respectfully dissent.