majority">STAYTOU, Chief Justice.

This action was brought by appellee against plaintiffs in error to recover from W. V. Clark $117, and to foreclose vendor’s lien on land sold by her to him.

Under the findings and evidence the facts are that Clark was bargaining to buy a tract of land from Edmiston, which was offered for $700, but Clark desired that a contiguous tract of land belonging to Mrs. Collins should be embraced in the purchase, and proposed to purchase the two tracts -at price named.

At the time negotiations were pending between Clark- and Edmiston, it was supposed that the strip of land owned by Mrs. Collins did not contain more than five acres, and Edmiston agreed, if the land could be bought from Mrs. Collins, that he would pay for as much as five acres, and sell the two tracts at price named.

Edmiston saw the agent of Mrs. Collins, who agreed for her to sell the ■strip of land at $6.50 per acre, and upon measurement it was found to contain eighteen acres.

Mrs. Collins executed a deed to Clark for the land, which recited a cash payment of $117, which she supposed would be paid to her agent on delivery of the deed, but he made an agreement that this should be paid at *36a future time, of which agreement Mrs. Collins had no knowledge until some time after the deed was delivered.

At the time the agreement was made between Edmiston and the agent of Mrs. Collins, the former stated that Clark would pay the price agreed upon, and a time when this should be done was fixed.

After the land was measured Clark informed Edmiston that he wanted it all, knowing the number of acres, and the deed was afterwards made. The deed was delivered to Clark, and since that was done he has asserted title to it, and resisted an action brought by Mrs. Collins for rescission, asked because the purchase money was not paid.

Edmiston also conveyed to Clark the tract which he owned.

Nothing passed between Mrs. Collins or her agent and Clark until some time after the conveyances were made, but when called on for the purchase money he refused to pay it, insisting that Edmiston had agreed to' sell to him both tracts for $700, which had been paid.

Edmiston was not authorized to sell the land of Mrs. Collins nor to receive the purchase money, and the court found that neither she nor her agent had done any act to induce Clark to believe that he was her agent.

There was some conflict in the evidence as to what the agreement between Clark and Edmiston was, but the court found that the latter was the agent of the former, and that having accepted the deed and retained the land, Clark was liable for the purchase money, and judgment was so entered, with foreclosure of vendor’s lien.

We are of opinion that the court’s findings are sustained by the evidence, and that under the facts shown, the contract made by Edmiston must be held binding on Clark.

Mrs. Collins had not agreed to sell the land to Edmiston, and if Clark was unwilling to abide by the agreement made by his agent, he should have consented to cancellation of deed made to him by Mrs. Collins when she sought this.

Although there was no lien reserved in the deed'made by Mrs. Collins, the purchase money not having been paid, the law gives lien. There can be no pretense that the lien was waived.

Clark in his answer set up his version of the facts and asked that Edmiston be made a party, and that “ he and plaintiff be required to settle the rights betAveen themselves and that defendants be protected in their rights,” but asked no relief against Edmiston.

Edmiston answered, and stated that the facts were as found by the court, but expressed his willingness at all times to pay the purchase price for five acres of th'e land.

The court held that Clark’s pleading did not authorize the rendition of any judgment against Edmiston, and it is claimed that this was error-*37If Clark desired any affirmative relief against Ed misten he should have asked it, and not having done so can not now be heard to complain.

Prewitt bought from Clark with full knowledge of the claim and right of Mrs. Collins, and can not complain of the enforcement of the lien in her favor.

There is no error in the judgment, and it will be affirmed.

Affirmed.

Delivered February 4, 1890.

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