CHARLESTON.

#### W. R. Bartram and Gertrude Bartram *v.*Thomas Damron, Jr., Virginian Joint Stock Land Bank, *of Charleston, a corporation,*Union Trust Company, *a corporation, Trustee,*J. Dayton White and T. F. White

(No. 6076)

Submitted February 28, 1928.

Decided March 6, 1928.

*.Escrows*— Evidence—Lease, *Deed, or Other Instrument Complete on Face Cannot be Delivered to Lessee, Grcmtee, or Other Beneficiary in Person as Escrow; Delivery of Complete Lease, Deed, or Other Instrument to Lessee, Grantee, or Other Beneficiary in Person is Absolute, Regardless of Verbal Understanding.*

A lease, deed, or other instrument complete on its face cannot be delivered to the lessee, grantee, or other beneficiary-in pierson as an escrow. Such delivery is in law absolute, whatever the verbal understanding of the parties may have been.

(Escrows, 21 C. J. § 19.)

(Norn: Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Appeal from Circuit Court, Wayne County.

Suit by W. R. Bartram and wife against Thomas Damron, 'Jr!, and others for an injunction and for other relief. From .a decree of dismissal, plaintiffs appeal.

*Reversed and entered.*

*W. T. Lovins,*for appellants.

*E. J. Wilcox,*for appellee, Virginian Joint-Stock Land .Bank.

.Litz, Judge:

The plaintiffs, W. R. Bartram and Gertrude Bartram, his wife, appeal from a decree of the circuit court dismissing their '.bill, which seeks to enjoin the defendant, Union Trust Com-jpany, Trustee, from selling a tract of 120 acres of land in "Wayne county, under a deed of trust from Thomas Damron *285to it, dated June 14, 1922, and to have tbe deed cancelled as. a cloud upon tbe title of tbe defendants, J. Dayton White- and T. F. White, grantees of tbe plaintiffs.

On June 13, 1922, tbe plaintiffs signed and acknowledged, a deed granting tbe land to tbe defendant Thomas Damron,. Jr., for $3,250.00, to -be paid as follows: $1,000.00 upon delivery of tbe conveyance, and tbe balance evidenced by two-notes for $1,125.00 each, payable to said W. R. Bartram in one and two years, respectively. Tbe same day Damron signed, acknowledged and delivered to W. R. Bartram a deed conveying tbe property to Mont Bartram, Trustee, to secure tbe payment of tbe notes. This deed was recorded June 26,. 1922. By deed dated June 14, 1922, and recorded June 20,. 1922, Damron conveyed tbe land to tbe Union Trust Company,, Trustee, .to secure a note of $1,500.00 for a loan of that amount obtained by him from tbe Virginian Joint Stock Land Bank. On receiving tbe cash payment, June 22, 1922, tbe plaintiffs, delivered the deed conveying tbe property to Damron. The defendant, Damron, failing to pay any of tbe deferred purchase money, tbe property was sold under tbe first deed o-f' trust and conveyed by tbe trustee, Mont Bartram, to tbe purchaser, W. R. Bartram, by deed dated August 26, 1924. By deed bearing date April 3, 1925, tbe plaintiffs conveyed the-land to tbe defendants J. Dayton White and T. F. White, with covenants of general warranty of title. Damron having defaulted also in bis -obligations under tbe second deed of trust, tbe Union Trust Company, Trustee, published notice of its. intention to sell tbe property -on January 22, 1927. This suit was instituted to enjoin tbe sale and' remove tbe second deed: of trust as a cloud upon tbe title of tbe defendants, J. Dayton White and T. F. White.

Tbe sole issue is a question o-f priority between tbe two trust deeds. Although tbe second was executed before tbe recordation of tbe first, tbe Land Bank through its attorney, E. J. Wilcox, who negotiated the- loan to Damron, was informed, before its execution that tbe first bad been signed and delivered to tbe plaintiff, W. R. Bartram. Wilcox in bis testimony on behalf of tbe Bank, states: “After I started to look after *286tbe matter, and perhaps before that time, in conversation with 'Thomas Damron, Jr., he told me he was purchasing the property now in litigation from W. R. Bartram, and that he had made arrangement with Mr. Bartram to make a deed to him for the property. He also stated that he would have to pay Mr. Bartram the sum of $1,000.00. I asked Mr. Damron at that time if he would owe Mr. Bartram anything after paying the $1,000.00, and he says, ‘'Will owe him some money but I have arrangement with him *to take the second Uen for that,’*that he, Damron, *tumid give W. B. Bartram a, trust deed on the property, hut he had arrangement with W. B. Bartram that he would hold this trust deed*— not *put it on record until this matter was closed up and the trtost deed being in favor of the Virginian Joint Stock Land Bank was placed of record.”*Damron, also a witness for the Bank, says he informed Wilcox prior to the execution of the second trust deed that he had already signed, acknowledged and delivered to W. R. Bartram a trust deed to secure the balance of the purchase price. Dam-ron claims that W. R. Bartram agreed to withhold the first trust deed from record until a trust deed securing the Bank had" been recorded. His evidence on this point, however, is unsatisfactory and of little weight. W. R. Bartram emphatically denies the alleged contract. Besides it is unreasonable that the plaintiffs would consent to a prior lien upon the property in favor of a third party for 50% more than the cash payment. But such agreement, if made, is immaterial in view of the delivery of the ¡trust deed to the beneficiary, W. R. Bartram. *“A*lease, deed, or other instrument, complete on its face, cannot be delivered to the lessee, grantee, ■or other beneficiary in person as an escrow. Such delivery is in law absolute, whatever the verbal understanding of the parties may have been.” *Gaffney*v. *Stowers,*73 W. Va. 420.

The first trust deed having been signed, acknowledged and •delivered, to the knowledge of the Land Bank before the execution of the second, the plaintiffs ’are entitled to the relief prayed for. The decree of the circuit court will, therefore, be reversed, and a decree entered here for the plaintiffs.

*Beversed and entered.*