Helweg v. Heitcamp

• Decision Date: 31 March 1855
• Citation: Helweg v. Heitcamp, 20 Mo. 569 (Mo. 1855)
• Parties: HELWEG, Plaintiff in Error, v. HEITCAMP, Defendant in Error.
• Court: Missouri Supreme Court

20 Mo. 569

HELWEG, Plaintiff in Error,

v.HEITCAMP, Defendant in Error.

Supreme Court of Missouri.

March Term, 1855.

1. Where there are three successive deeds of trust on real estate, the surplus proceeds of a sale under the second must be applied in the payment of the third, and not of the first.

Error to St. Louis Circuit Court.

C. Gibson, for plaintiff in error, submitted the case upon the record.

J. R. & R. T. Barret, for defendant in error.RYLAND, Judge, delivered the opinion of the court.

The property in this case was incumbered by three deeds of trust regularly made and recorded in succession, in order to secure the payment of three distinct debts.

The trustee in the second deed advertised and sold the property, and there remained in his hands, after payment of the debt for which he was acting as trustee, some two or three hundred dollars surplus.

This action is brought to recover from the trustee this surplus fund, that it may be applied to the extinguishment, as far as it goes, of the debt mentioned and secured by the third deed of trust; and the only question is, how shall the surplus be applied, to the payment of the debt mentioned in the first deed of trust, or to the payment of the debt in the last or third deed of trust? The court below decided that the money must be paid over on the debt secured by the first deed. The plaintiff excepted to that decision, and brings the case here by writ of error.

1. This court is of...