Barry v. Barry

• Decision Date: 02 May 1887
• Citation: 64 Miss. 709,3 So. 532
• Court: Mississippi Supreme Court
• Parties: BERENICE BARRY v. SALLIE F. BARRY

3 So. 532

64 Miss. 709

BERENICE BARRY v. SALLIE F. BARRY

Supreme Court of Mississippi

May 2, 1887

APPEAL from the Chancery Court of Le Flore County, HON. R. W WILLIAMSON, Chancellor.

In September, 1885, Mrs. Sallie F. Barry filed this bill against her son, W. S. Barry, and his wife, Berenice Barry.

The bill alleges that W. S. Barry, Sr., died in 1868, and left a will, by which his estate was given to complainant in trust for herself and her son, W. S. Barry; that she assumed the control and direction of the property, which consisted of a plantation and appurtenances, and improved the same greatly using her own means therein; that with the profits accruing she purchased a certain tract of land known as the "Wilson deadening;" that defendant, W. S. Barry, in full knowledge of the terms of the will of W. S. Barry deceased, fraudulently induced the vendors of the Wilson land to make a deed thereto to him individually; that on complainant's learning of this deed, she required defendant, W. S. Barry, to make her a deed to this land, but before this deed could be recorded it was mysteriously abstracted from her papers, and subsequently (in 1882) W. S Barry executed a voluntary deed to this "Wilson" tract of land to his wife, Berenice Barry, who knew all the circumstances, and that this latter deed was duly recorded that in 1883 complainant, in order to avoid litigation, entered into an agreement with defendant, W. S. Barry, by which he was to take charge of the plantation and a certain store situated thereon, manage them, and on the first day of each year pay complainant one thousand dollars for the use thereof; that complainant was to have certain mortgage bonds belonging to the estate, and that the Wilson land was to be conveyed to complainant and W. S. Barry in fee simple. The bill further alleges that the defendant, W. S. Barry, has wholly failed and refused to carry out his part of the agreement, and asks for a specific performance of the agreement both as to the payment of the rents and the making of the deed to the "Wilson" land, and also asks that the deed to Berenice Barry be cancelled. The defendant, Berenice Barry, demurred to the bill for multifariousness in making her a party and for want of equity. The Chancellor overruled the demurrer, and she appealed.

Decree affirmed.

Hooker & Wilson, for the appellant.

1. The gist of the bill is for the specific performance of a contract between complainant and one W. S. Barry, and the attempt is made to draw into the charmed circle the outstanding title of a third party which existed prior to the making of the agreement. Appellant received her title and was enjoying the fruits of it long before the contract in question was made, and she cannot be drawn into this litigation as to the enforcement of this contract unless it was done on the simple ground that she was the wife of W. S. Barry. If she had been a stranger to the contracting parties, and held an outstanding title to the land, a court called on to enforce a specific performance of the contract would not draw into the vortex of their litigation her title, and say that she had to dispose of it in accordance with their contract, and yet this is what the court is called upon to do.

Appellant's title was of record, and whatever title W. S. Barry may have had was in appellant, and her title was well known to complainant.

With this state of facts existing, complainant and W. S. Barry contract that this title shall be conveyed to S. F. Barry and son. Now, it is impossible, if necessary, for W. S. Barry to convey.

There is no intimation that W. S. Barry is insolvent and unable to respond in damages for breach of the contract.

Complainant must look to the party with whom she contracted, and if he is unable to carry out his contract, must look to him for damages for breach thereof.

2. Besides this, what right has complainant to demand of appellant that she convey this property to S. F. Barry and W. S. Barry jointly? Certainly not by reason of any contract so to do upon her part.

If there is no contract on her part to that effect, then...