#### Von Mosch v. Waldrop.

Opinion delivered July 9, 1928.

*905 G. R. Herndon, ¡for appellant.

Isaac L. Awtrey, for appellee.

Hart, C. J.,

(after stating the facts). The decree of the chancery court was correct. In Chaffin v. Harpham, 166 Ark. 578, 266 S. W. 685, it was held that a delivery in escrow is irrevocable until failure to perform the stipulated conditions. Again, in Ford v. Moody, 169 Ark. 649, 276 S. W. 595, it was held that, when a deed is delivered merely as an escrow, to take effect upon the performance of some condition by the grantee in the future-, no title passes until the condition has been performed, and it is immaterial that the grantee obtains possession of the instrument before the condition is performed.

In the case at -bar, the record shows that Richardson sent the deed to the Caddo Valley Bank to be delivered to Gust Von Mosch upon the payment of the purchase money. Von Mosch was notified that Richardson was in need of money, and wished to sell at once. In each subsequent letter about the transaction Richardson notified Von Mosch that he was in pressing need of money, and must receive payment of the purchase price of the land quickly. On November 19, 1927, Richardson wrote Von Mosch, assuring him that the title was O. K., and that the Caddo Valley Bank had loaned him $100 on it. He had agreed to sell the land to Von Mosch for $125, to *906be paid in cash. He notified Yon Mosch that be bad an obligation coming dne on November 28 that be must meet, and also that be bad been offered a little more money than be asked Von Moseb for tbe land. He notified Von Mosch, however, that he was willing’ to stand by his proposition provided it was accepted within a reasonable time. 'The fact that be referred to November 28 as tbe date upon which be was in pressing need of money showed that be considered that a reasonable time. Instead of paying tbe purchase price of tbe land, Von ' Mosch waited until after Richardson bad sold the land to Waldrop and bad executed a deed to him for it, which Waldrop bad filed for record.

It does not make any difference that Waldrop bad notice that Von Mosch claimed title to tbe land. Under tbe facts presented, Von Mosch could only claim title to tbe land provided be complied with tbe condition upon which tbe sale was made. He was notified in express terms that Richardson was badly in need of money on the 28th day of November, and, under the circumstances, we think it was his duty to have sent the moneyjpromptly so thiat Richardson could meet his obligation. Not having done so, Richardson had the right to sell the land to some one else; and it did not make any difference whatever that the purchaser had notice of the contemplated sale to Von Mosch, because the latter failed to comply with the stipulated condition upon which the land was offered to him, and, upon his failure to do so, Richardson had a perfect right to sell the land to Waldrop. Waldrop paid the purchase money for the land and filed the deed for record before Von Mosch attempted to comply with the condition upon which he purchased the land. That condition was that he should pay the purchase price in cash. He did not offer to pay the purchase price until after the deed ifrom Richardson to Waldrop had been delivered and filed for record and Waldrop had paid the purchase money to Richardson.

The result of our views is that the decree of the chancery court is correct, and it will be affirmed.