¶1delivered the opinion of the court.
¶2The plaintiff in error instituted an. action of debt in the circuit court of Rockingham county against Peter S. Roller, upon a writing obligatory executed by him and Josiah S. Roller.
¶3*45The defendant filed two pleas in writing setting forth substantially that he signed and sealed that writing which is the subject of controversy, and delivered the same to his obligor, Josiah S. Eoller, the principal, as an escrow, upon the condition that if Peter Eoller should execute the same as security, then the same should be delivered as the deed of the defendant, and not otherwise, and the same was never executed by the said Peter Eoller.
¶4Upon these pleas issue was joined, and the parties agreed the facts in lieu of a special verdict. And upon these facts the court gave judgment for the defendant.
¶5The case is before us upon a writ of error to that judgment.
¶6It is proper to observe that the instrument is complete on its face, and the facts agreed show that the obligee at the time of the delivery to him had no notice of the agreement stated in defendant’s pleas.
¶7The case presents identically the same questions decided . by this court in the case of Hash v. Fugate, recently decided by this court. It was there held that a surety, who executes and delivers to his principal, a bond complete and perfect on its face, is estopped to claim that it is a mere escrow, as against the obligee who receives the instrument iona fide, for a valuable consideration in ignorance of the agreement which renders it a mere escrow.
¶8It is therefore only necessary to refer to the opinion delivered in that case as embracing all that is necessary to be said ' in this ; and as conclusive of the decree to be made here.
¶9This now renders it unnecessary to express any opinion in regard to the competency of Peter S. Eoller as a witness. For if it be conceded that he is competent, the facts stated by him constitute no defence against the claim *46of the plaintiff. If on the other hand he is considered incompetent, there is an entire absence of his testimony to show the alleged agreement upon which the defence is founded.
¶10The judgment of the circuit court must therefore be reversed, and judgment given here for the plaintiff.