decided: March 16, 1965.
Appeal from decree of Court of Common Pleas of Lackawanna County, Nov. T., 1961, No. 3, in case of Jack Tick and Sidney Tick v. Frances Sholin.
Claude Bialkowski, with him Bialkowski & Bialkowski, for appellant.
Joseph P. Kane, with him Emanuel Laster, and Laster, Strohl, Kane & McDonald, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ.
Author: Per Curiam
[ 417 Pa. Page 566]
This action in equity was instituted by the plaintiffs, Jack Tick and Sidney Tick, against the defendant, Frances Sholin, seeking partition of certain real estate devised to the parties by the will of their mother.
Before appellant filed her answer, the parties entered into a written agreement for the sale by plaintiffs to defendant-appellant of their interest in the property. Defendant maintains that since the plaintiffs breached the sales agreement the equity action cannot be pursued.
The chancellor determined that plaintiffs were entitled to a decree directing partition, which decree was affirmed by the court en banc. We agree with the determination of the chancellor that the agreement to purchase was not fully performed by the defendant and that the plaintiffs properly rescinded the agreement,
[ 417 Pa. Page 567]
thus permitting them to pursue the partition action. The order of partition was properly decreed.
Decree affirmed at appellant's cost.
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