Missouri Real Estate Syndicate v. Sims
| Decision Date | 10 February 1904 |
| Citation | 78 S.W. 1006,179 Mo. 679 |
| Parties | MISSOURI REAL ESTATE SYNDICATE, Appellant, v. SIMS |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.
Reversed and remanded.
Heffernan & Heffernan and Gideon & Gideon for appellant.
(1) A sale before the debt is due is void. Long v. Long, 79 Mo. 644; Eitelgeorge v. Assn., 69 Mo. 55. By a foreclosure of a deed of trust the legal title passes to the purchaser, although the sale thereunder may be irregular as not to extinguish the mortgagor's equity of redemption. Long v. Long, 141 Mo. 352. An agreement made before the time of redemption has expired to allow further time though made without consideration, can not be disregarded after the time of redemption has passed, but will be enforced by the court. Jones on Mortgages, secs. 1053, 1189; Davis v. Dresback, 81 Ill. 393; Ross v. Southerland, 81 Ill. 275; Dodge v. Brewer, 31 Mich. 227. A verbal agreement to extend the time of payment is binding, and suspends the right to foreclose if founded on a good consideration. Jones on Mortgages, sec. 1190. Any expense trouble or inconvenience experienced by plaintiff makes the consideration valuable in law. Brown v. Cory, 74 Mo.App. 462; Brownlow v. Wollard, 66 Mo.App. 636; Wirt v. Sherman, 67 Mo.App. 172. (2) Plaintiff's contract imports a good consideration. Carter v Foster, 145 Mo. 383; 1 Chitty on Contracts (11 Ed.), p. 36; Glasscock v. Glasscock, 66 Mo. 631; Cass Co. v. Oldham, 75 Mo. 50; Martin v. Nixon, 92 Mo. 26; Calkins v. Chandler, 36 Mich. 320. Payment of interest in advance is a sufficient consideration for extension of note to a fixed time. Nelson v. Brown, 140 Mo. 580; Ins. Co. v. Hauch, 71 Mo. 465. (3) It was not necessary to have all contracts in writing. A written agreement is not alleged, nor was it necessary to allege that the agreement to sell was in writing. Assn. v. Dubach, 81 Mo. 479. The measure of damages is the value of the property taken. 1 Sutherland on Damages, p. 173; Forwell v. Price, 30 Mo. 587.
Benj. U. Massey for respondent.
(1) The first count asks for damages for the wrongful conversion of real estate. An anomaly in pleading. If the foreclosure sale was legal, no cause of action of any kind would lie. If such sale was made before the debt secured was due, it was without authority and void, and entry by Sims was without right, and wrongful. In such an event, plaintiff could recover in an action of forcible entry and detainer, or in an action of ejectment, or for redemption from said deed of trust, just as if Sims had entered upon plaintiff's possession without excuse of trustee's sale, or authority of the deed of trust made thereunder. (2) Plaintiff was not privy to the contract of extension made between Sims and the Springfield Milling Company. Plaintiff did not assume or agree with Sims, or with any one else, to pay said note or any interest thereon and was in no way a party to that note by reason of any assumption of or agreement on his part to pay it; consequently the extension made to the milling company did not inure to the benefit of said plaintiff, and the debt was past due when the deed of trust was foreclosed. (3) There was no extension of time of the payment of this $ 4,000 note made between the plaintiff and defendant. The leasing of the third story of the building by plaintiff and defendant to the Odd Fellows did not operate as an agreement for such extension, nor did the making of improvements on the building, so operate. Agreements for extension of time of payment beyond the time stated in the instrument itself must be based upon a valuable consideration, and the period of extensions must be certain.
This is an appeal from the judgment of the circuit court on sustaining a demurrer to the plaintiff's petition, the plaintiff declining to plead further.
The cause stated in the petition is an action at law for damages for the breach of a contract to extend a mortgage note.
The substantial averments in the petition are to the effect as follows: On December 12, 1894, one George P. Miller, being then the owner of certain real estate in the city of Springfield, executed his note for $ 4,000, due in two years, bearing eight per cent interest from date, payable to one George Lawrence, and a deed conveying the real estate to one James Bray as trustee to secure the note; that afterwards Miller conveyed the property to one Kerr, subject to the deed of trust, and Kerr conveyed it in like condition to a corporation called the Springfield Milling Company; that in 1895 the holder of the $ 4,000 note sold it to the defendant Sims; that while the defendant was the owner of the note, and the Springfield Milling Company the owner of the property subject to the deed of trust, the latter made a contract with the former to extend the note for a period of five years from the date of its face maturity, that is, from December 12, 1896, to December 12, 1901, the consideration for the extension being one hundred dollars, which the Milling Company then and thereupon paid the defendant; that afterwards the Milling Company sold the property to one Coombs, who assumed the payment of the note, and Coombs sold it to other parties who also assumed the payment of the note, and they, on February 16, 1899, sold it to the plaintiff for $ 6,000, subject to the deed of trust; that plaintiff bought with knowledge of the contract for the extension, and with the knowledge and consent of the defendant, and after so purchasing, the plaintiff, with the knowledge, consent and approval of the defendant, put extensive and valuable improvements specified on the property, and made a lease for a term of ten years of the third floor of the building with like knowledge and consent of the defendant, he in fact signing the lease, and agreeing that his deed of trust "should be subject to the terms and conditions of said lease;" that afterwards, although the plaintiff had fully complied with all the other terms of the deed of trust, the defendant in violation of his agreement to extend the note did, in July, 1900, instigate the trustee to sell the property under the terms of the deed of trust, and at the sale the defendant became the purchaser for $ 1,000, received the trustee's deed therefor, entered into possession and has so continued, collecting the rents, etc.; that at the date of the sale the property was worth $ 8,000, or $ 4,000 over and above the deed of trust debt, and, therefore, by the defendant's act the plaintiff was damaged in the sum of $ 4,000, for which judgment was prayed.
There were three other counts in the petition predicated on the same facts, and the breach of the agreement to extend the note. The court sustained the demurrer as to the first, second and fourth counts, and overruled it as to the third, whereupon the plaintiff took a voluntary nonsuit as to the third count, and declined to plead further. The court then rendered final judgment for the defendant, from which judgment the plaintiff prosecutes this appeal.
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