Sigman v. Rubeling

Decision Date21 September 1954
Docket NumberNo. 28892,28892
CourtMissouri Court of Appeals
PartiesAugust SIGMAN (Plaintiff), Respondent, <br> v.<br> Alex E. RUBELING (Defendant), Appellant

Charles E. Schaffner, St. Louis, George F. Heege, Clayton, and John H. Martin, St. Louis, for appellant.

John T. Sluggett, III, Clayton, for respondent.

OPINION BY: BENNICK, J.

Not to be reported in State Reports.

This is an action for damages for the alleged breach of an agreement not to foreclose under a deed of trust.

Upon a trial to a jury a verdict was returned in favor of plaintiff, and against defendant, for the sum of $2,500. Judgment was entered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.

Plaintiff, August Sigman, acquired his interest in the property on October 8, 1945, by general warranty deed executed by defendant, Alex E. Rubeling, and his wife, Mabel N. Rubeling, to him and his then wife, Mary L. Sigman, as tenants by the entirety. The property consisted of 7 unimproved contiguous lots located in a subdivision known as Hollywood Park in Normandy, St. Louis County.

The purchase price of the property was the sum of $1,750, of which plaintiff paid $50 in cash, and for the balance of which he and his wife, Mary L. Sigman, executed a series of 36 negotiable promissory notes of even date, payable to defendant in monthly installments. Each note except the last was for the principal sum of $20, with interest of $8.50 in the case of the first note, which was thereafter decreased in the amount of 10 cents in each succeeding note through the 35th. The last or 36th note in the series, due October 8, 1948, was for the sum of $1,005.

As security for the payment of the notes plaintiff and his wife, Mary L. Sigman, executed a deed of trust upon the property to one Grover W. Devine, as trustee, with defendant alone named as beneficiary. The deed of trust contained the usual provision, among others, that whenever any one of the series of notes should not be paid at its maturity, all of the remaining notes should immediately become due and payable at the option of the holder of the notes.

After acquiring the property plaintiff built a 2-room house upon it, and moved into the house upon its completion.

Plaintiff was divorced from Mary L. Sigman during 1946, and then married Betty Ray Sigman on May 2, 1948. Upon his divorce from Mary L. Sigman there was no conveyance or legal transfer to him of her interest in the property.

It was shown that plaintiff paid the first 17 notes covering the period up to March 8, 1947, and that in the course of a discussion he had with defendant around that time, the latter inquired why he did not make an addition to the 2-room dwelling which had been erected on the property. Plaintiff replied that if he should undertake such an improvement, he would lack the means to continue his payments on the notes, whereupon defendant assured him that if he would go ahead and make the improvement, he would not ask for the monthly payments.

Acting upon the understanding reached with defendant, plaintiff proceeded to add the 2 rooms, but for the time being made no further payments on his notes.

In October, 1949, having in the meantime acquired some $800 to his account, plaintiff called upon defendant for the purpose of once again taking up the payment of his obligations. In this conversation defendant expressed concern as to why plaintiff did not build a 'nice' house on the property in view of the fact that the surrounding neighborhood was being substantially improved. Plaintiff answered that he had had in mind to build a 7-room house, but would be compelled to arrange for credit. Defendant then asked him whether, if he should erect such a house, he would be in a position to start payments on his notes after a period of 3 years, and upon being told that he would, defendant informed him that he should build the 7-room house on the property; that in return for this defendant would allow him a period of 3 years before he would be required to resume payments on his notes; and that during such period of 3 years defendant would not foreclose under the deed of trust.

Plaintiff's second wife, Betty Ray Sigman, was present at the conference between plaintiff and defendant, and corroborated plaintiff in all substantial respects regarding defendant's promise of forbearance.

Defendant denied any such agreement, thus raising an issue for the jury, which was resolved by their verdict in favor of plaintiff's version of the facts.

In reliance upon the agreement plaintiff began the erection of a 7-room building, which had not been fully completed when defendant, in disregard of his promise, instructed Devine, the trustee, to commence foreclosure proceedings under the power of sale contained in the deed of trust. The sale was held on June 25, 1951, far short of the expiration of the period of 3 years, and the property was bid in by defendant himself, with title placed temporarily in the name of Marion Hubbard. Later, on July 20, 1951, the property was conveyed by Marion Hubbard to Thomas J. Schultz and Alma P. Schulz, his wife.

Meanwhile, by letter dated June 27, 1951, plaintiff was notified by defendant that the deed of trust had been foreclosed on account of his being in default in his payments, and that he would be expected to vacate and surrender the premises. A similar letter was sent plaintiff on July 25, 1951, by a representative of Mr. and Mrs. Schulz. Plaintiff did vacate the premises on or about September 15, 1951. This action for damages for defendant's breach of his agreement not to foreclose was thereafter instituted and tried to the result already indicated.

Plaintiff counted upon the facts about as we have related them for the statement of his claim, to which defendant answered by a bare general denial.

Defendant does not question the fact that the breach of an agreement not to foreclose, where the agreement is supported by a valuable consideration, may give rise to a claim or cause of action for damages occasioned by the breach, regardless of any other remedy that the injured party might have been entitled to assert. Missouri Real Estate Syndicate v. Sims, 179 Mo. 679, 78 S.W. 1006. He insists, however, as a matter of chief concern, that plaintiff has no such cause of action under the facts of the instant case.

The effect of the divorce which plaintiff obtained from his first wife, Mary L. Sigman, was to destroy the tenancy by the entirety under which the...

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4 cases
  • Willits v. Peabody Coal Co. Llc
    • United States
    • Missouri Court of Appeals
    • December 28, 2010
    ...in common, creating a fee simple interest in severalty. See Davis v. Broughton, 369 S.W.2d 857, 859 (Mo.App.1963); Sigman v. Rubeling, 271 S.W.2d 252, 255 (Mo.App.1954). See also Shelton v. Vance, 106 Cal.App.2d 194, 234 P.2d 1012, 1014 (1951); Sullivan v. McLenans, 2 Iowa 437 (Iowa 1856); ......
  • Poetz v. Klamberg
    • United States
    • Missouri Court of Appeals
    • December 12, 1989
    ...common. It is the general rule that tenants in common must join in all personal actions concerning the common property. Sigman v. Rubeling, 271 S.W.2d 252 (Mo.App.1954) [7-9]. There are many exceptions to that rule. 20 AmJur 2d § 110; 4A R. Powell, Powell Real Property p 606. It is not at a......
  • Bankers Trust Co. v. Woodall
    • United States
    • Court of Appeals of New Mexico
    • August 23, 2006
    ...the blanket proposition that a foreclosure sale terminates the cotenancy. See 86 C.J.S. Tenancy in Common § 11; Sigman v. Rubeling, 271 S.W.2d 252, 255 (Mo.Ct.App. 1954). However, in New Mexico, a foreclosure sale is always subject to the owner's right of redemption. NMSA 1978, § 39-5-18(A)......
  • Mueller v. Mueller
    • United States
    • Missouri Court of Appeals
    • May 25, 1982
    ...Co., 255 Mo. 305, 164 S.W. 618, 625(1) (1914); accord, State ex rel Paden v. Carrel, 597 S.W.2d 167, 173(2) (Mo.App.1979); Sigman v. Rubeling, 271 S.W.2d 252, 255(4-6) Appellant's incompetency was determined by Judge Campbell when he appointed Raymond. Any alleged imperfection in Judge Camp......

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