The appellants moved for a rehearing; and the following opinion was filed May 10, 1882:
LyoN, J.The argument of the learned counsel for the defendants on the motion for a rehearing of this cause calls our .attention to the fact that the order confirming the agreement by the plaintiff Brindley, the special guardian, for a sale of the land of his ward to the defendants, was made over a year •after the action was commenced. This fact was overlooked when the cause was decided by this court, and is not mentioned in the opinion or in the arguments of counsel. Ve think, however, that the omission is immaterial, and that the *50judgment is right, notwithstanding the action was brought before the plaintiffs could make a good title to the premises. It seems to be settled that a court of equity will decree specific performance of a contract for the sale of land in which time is not of the essence of the contract, if the vendor is able to make a good title at any time before the decree is pronounced. Hepburn v. Dunlop, 1 Wheat., 179, and cases cited in note; Story’s Eq. Jur., § 777, and cases cited. No good reason is perceived why the same rule should not apply to an action to foreclose the interest of the vendee in such an agreement who has failed to pay the consideration for the land as agreed. We are of the opinion that it is within the power of a court of equity to grant relief in either case if the vendor can make a good title at the hearing, although he may not have been able to do so when the action was commenced. This inability may affect the question of costs, but that rests in the discretion of the court.
The circuit court having granted relief, and having exercised its discretion as to the costs, there is no ground for disturbing its judgment, i
By the Court.— The motion for a rehearing is denied.