concurred and filed the following separate opinion:
We are agreed, for the reasons stated in the opinion of the Chief Justice, that the vendor did not have, at the time of making his demand for a specific performance of the contract' of sale, a good and marketable title to the lands agreed to be sold. It is therefore a matter of discretion whether the Court will permit the title to be completed at the present time. I think that such permission ought not to be granted. There is an outstanding encumbrance by judgment, such judgment creditor not having been made a party to the foreclosure suit. It may prove on investigation that the lien of that judgment is lost, but that fact should be determined in a proceeding to which the judgment creditor is a party, as the question involved is worthy of judicial consideration.
At all events, in my judgment, the objection urged tends to affect prejudicially the marketable value of the premises, and, as the question of allowing the completion of the title is one of discretion, and not of strict right, I think specific performance should not be decreed.
For the reasons above stated, I concur in the judgment of the Court.