Opinion or the cotjet by
JiJDGH PAYNTER
Revebsing.
This is the fourth time- this case has been here. However, each appeal presented a different question for review. On a former appeal it was decided that of the land conveyed by J. C. Dupoyster and Ben S. Dupoyster to, the appellee Ft. Jefferson Improvement Company one-half belonged to J. B. Dupoyster and Deiva D. Edwards, three-eighths to J. C. Dupoyster, and one-eighth to Rebecca S. Dupoyster; but the latter was not before the court in the proceeding wherein the court adjudged a lien on one-half of the land on the rescission of the contract between J. C. and Ben S. Dupoyster and the appellee. The various proceedings had are made to appear in the opinions of the court on former appeals (Ft. Jefferson Improvement Co. v. Dupoyster, etc., 51 S.W., 810" court="Ky. Ct. App." date_filed="1899-06-15" href="https://app.midpage.ai/document/fort-jefferson-improvement-co-v-dupoyster-7134477?utm_source=webapp" opinion_id="7134477">51 S. W., 810, 21 Ky Law Rep., 515, 48 L. R. A., 537; Ft. Jefferson Improvement Co. etc., v. Dupoyster, etc., 66 S.W., 1048" court="Ky. Ct. App." date_filed="1902-02-25" href="https://app.midpage.ai/document/ft-jefferson-improvement-co-v-dupoyster-7134965?utm_source=webapp" opinion_id="7134965">66 S. W., 1048, 24 Ky. Law Rep., 1199; and Dupoyster, etc., v. Ft. Jefferson Improvement Co., 72 S. W., 268, 24 Ky. Law Rep., 1782); hence much detail of fact will be omitted here. The appellant claims that she not *200only owns the one-eighth by inheritance, but that she had acquired her husband’s three-eighths interest in the land by virtue of a deed dated August 14, 1889, which he executed to her. The facts are the appellee procured a rescission of the contract of sale and claimed a lien upon J. C. Dupoyster’s ■three-eighths interest in the land and the one-eighth interest which the appellant owned by inheritance for the purchase money which had been paid to J. C. Dupoyster as an individual and as administrator of the estate of Ben S. Dupoyster. It appears that on September 17, 1890, in consideration of a large sum of money, Ben S. Dupoyster, J. C. Dupoyster, and the appellant acknowledged a deed to appellee for a large tract of land, which deed' was delivered to S. J. Moore in escrow. In a writing which accompanied the deed it was recited that when appellee presented J. O. Dupoyster’s receipt for the first payment on the land — it being $25,000 — the deed' was to be recorded. Instead of presenting a receipt for that amount, J. C. Dupoyster in writing consented that the deed should be recorded by means of the payment to him of $5,500 as administrator of Ben S. Dupoyster whereupon the deed was recorded. Subsequently the appellee paid J. C. Dupoyster sums aggregating about, $3,000. The record shows that the $5,500 was paid out on the debts due by Ben S. Dupoyster’s estate, and that the appellant, who is the wife of J. C. Dupoyster, never received any part of the purchase money paid to J. C. Dupoyster individually or as administrator, and that she never consented that such payments should be made to her husband, or. that tin? deed might be recorded. The court decreed, at the instance of the appellee, that the contract of sale should be rescinded, and that it was entitled to a lien upon one-half of the land, being J. O. Dupoyster’s three-eighths and the appellant’s one-eighth in*201terest in tlie land. From this judgment this appeal is prosecuted.
We will first consider the question as to J. C. Dupoyster’s three-eighths interest. The deed’ which he executed to the appellant August 14, 1889, was not recorded until 12 years after the sale to the appellee; therefore was not on record when the sale was made. We have reached the conclusion that the appellee’s agents were not aware of the existence of the deed at the time of the sale to it, and that three-eighths: of the land should be treated as' the property of J. C. Dupoyster for the purpose of an equitable adjustment on the rescission of the contract between the appellee and J. C. Dupoyster. It therefore follows that the court properly adjudged a lien on that three-eighths interest in the land for the amount found to be due the appellee. ■
As to Rebecca S. Dupoyster’s one-eighth interest, we reach a different conclusion. She never consented to part with her title to it, except on the condition that the cash payment was made. She only consented that the deed should be delivered and recorded when this was done. Of this fact the appellee was fully aware. From the terms of the writing placing, the deed in escrow, the appellee is not only charged with notice that the deed was only to be delivered upon that condition, but it actually agreed with the appellant that it was only to receive the deed on that condition. It knew the limitation that was placed upon the authority of J. C. Dupoyster to receive the money, and the authority of Moore to have the deed recorded. It was not misled in this regard. So far as the appellant was concerned, no contract of sale of her one- eighth interest in the land was ever consummated. Her husband had no authority in law or otherwise to sell her interest in the land, nor could his wrongful act in consenting that the deed should be recorded be treated as a consent by her to the delivery *202of the deed, nor should' it operate to divest her of title to her interest in the land, or to incumber it with a lien for money; which she never received or consented that any one else should receive. If the husband’s wrongful act can have either of these effects, it would be allowing him to consummate a sale ' of her land and incumber it in opposition to her wishes. If A., B., and 0., owned a tract of'land, and they made a deed therefor, and placed it in escrow with an agreement that it was to be delivered and recoi’ded upon the payment to A. of a specified sum, and A., in violation of that agreement, accepted a less sum, and consented that the deed should be recorded, it would not be binding on B. and C., because it was delivered and recorded in violation of an agreement made with the grantee. B. and C. only agreed to a consummation of the sale upon a certain condition which never happened. The grantee in such a deed could not claim that he acquired B. and C.’s title to the land under the deed, because he obtained it in violation of the agreement. It follows that there was no contract of sale consummated between the appellee and Mrs. Dupoyster; hence it is a misnomer to say that a contract- has been rescinded, so far as she is concerned. It would be most inequitable to burden her interest with a lien for money which J. C. Dupoyster received for himself individually and as adr ministrator of Ben S. Dupoyster. It is urged that, where a married woman sells her land by executor contract or otherwise, and the contract can not be- enforced, the court will adjudge a lien upon her land for the amount which she has received by virtue of the contract. We concede this to be true, but the principle does not apply here, because the contract of sale as to her interest in the land was never consummated ; hence there could be no rescission of the contract, so far as she is concerned. The deed to the appellee should be set aside so far as it purports to convey her one-eighth.
*203The rule that the payment to one joint payee is a payment to all is invoked to support the appellee’s claim to a lien on appellant’s interest in the land. In no proper sense was the appellant ever a payee, nor could she have been except on the consummation of the sale in accordance with the terms of the writing evidencing the contract placing the deed in escrow. It was not within the power of the appellee and J. C. Dupoyster to make a contract of sale of her land to which she never gave her consent, and claim that thereby she became a joint payee with her husband, and thus give him the right to collect her money. She never ratified or agreed to ratify the transaction, except upon the condition that the appellee pay all the purchase money, which it refused to do, because it could not obtain the interest of J. B. Dupoyster and Mrs. Edwards, which the appellant never owned or represented that she owned.
For the appellant it has been urged, that a married woman can not deliver a deed in escrow so as to thereby divest her of title to her land, but we have not deemed it necessary to enter into a discussion on this question, as is apparent from the conclusion we have reached.
The judgment is reversed, with directions to the court b.e-low to adjudge td the appellant her’one-eighth interest in the land free from the appellee’s claim, and for further proceedings consistent with this opinion. And the judgment is affirmed-in the appeal of J. C. Dupoyster, J. B. Dupoyster, and .Mrs. Edwards.