¶1 (dissenting). I am in accord with the finding of- the circuit judge that the escrow agreement was solely between Mr. Eadus and the lessee after the lease was'executed and in the hands of Mr. Eadus for unconditional delivery.
¶2 The escrow agreement made by the husband did not inure to the benefit of the wife and estop the husband from making such a delivery as he had a right to malee in the first instance. What he did without her knowledge he could undo without her consent. She attached no condition precedent to delivery. He attached a string and then cut it.
¶3 I think the decree dismissing the bill should be affirmed, with costs to defendants.
¶4 (concurring). The second paragraph of plaintiffs’ verified bill of complaint reads as follows :
“That it was part of the agreement between the parties that said oil and gas lease was to be held by the Peoples State Bank of the city of Muskegon, Michigan, in escrow, according to a certain agreement. A copy which is hereto attached and made a part of this bill of complaint and marked Exhibit B. And it was agreed that said oil and gas lease was not to be recorded by the defendants herein until drilling had been actually begun upon said property.”
¶5*197 The second paragraph of the “joint and several answer” of the defendants, verified by the defendant Moyer, reads as follows:
“They admit that said oil and gas lease was first placed in escrow with the Peoples State Bank of Muskegon, as* stated in the second paragraph of said bill, but aver the fact to be that the original agreement with reference thereto was afterwards modified so as to permit immediate delivery and recording of said lease, and that as a consideration for such modification the plaintiffs were paid the sum of $100', and that for the same consideration the time for commencing the drilling of a well on the leased premises was altered and extended. ’ ’
¶6 The issue was thus squarely presented as to whether, after deposit of the escrow agreement, there was a modification thereof which permitted its withdrawal and relieved the lessee from his undertaking to begin drilling upon the land “within sixty days from the date” when the well then being drilled in the same section produced oil or gas in paying quantities, which date is conceded to be September 14, 1928.
¶7 The fact that Fred Eadus, for a consideration paid to him by the defendants, authorized withdrawal of the agreement from escrow, is clearly established. That Katherine J. Eadus, his wife, objected thereto, when informed of his action, is also clearly established. The only question presented on this record, as I view it, is whether his act in doing so is binding upon Mrs. Eadus. Their title to this property as husband and wife was an estate by the entireties. The escrow agreement was in the nature of a condition annexed to the lease for the benefit of both. While not signed by her, it was delivered with her *198 consent, and both parties concede that it was binding upon her. In my opinion, she conld not be deprived of the benefit accruing to her thereunder by his action alone. She repudiated it when first informed of what he had done, and was in no way bound thereby. In legal effect, it remained in the bank, and defendants’ leasehold rights were subject to its provisions, and, as defendants did not begin drilling- at the time fixed therein for doing so, their rights under the lease became terminated, and the plaintiffs were entitled to have the lease declared null and void and its record removed as a cloud upon their title as prayed for in their bill of complaint.