Hurck v. Erskine

• Decision Date: 31 March 1870
• Citation: 45 Mo. 484
• Parties: PETER J. HURCK and WM. M. PRICE, Defendants in Error, v. GREENE ERSKINE, Plaintiff in Error.
• Court: Missouri Supreme Court

45 Mo. 484

PETER J. HURCK and WM. M. PRICE, Defendants in Error,

v.GREENE ERSKINE, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Circuit Cou

Gantt, for plaintiff in error.

When the deed contains a contract or provision changing the order of payment, such contract or provision will be enforced by the courts. (Ellis, Adm'r of Lamme, v. Lamme, 42 Mo. 154; Bank of U. S. v. Singer, 13 Ohio, 240; Morgan v. Martin, 32 Mo. 438; Mason v. Barnard, 36 Mo. 384; Mitchell v. Ladew, id. 526; Thompson v. Field, 38 Mo. 320.) These provisions, in the deed under consideration, place all the notes upon an equal footing so far as the security furnished by the deed is concerned; and upon default in the payment of the first note, the trustee was compelled to treat them as being on an equal footing. (See authorities above cited.)

Harding & Crane, for defendants in error.

WAGNER, Judge, delivered the opinion of the court.

In this case Hurck, the plaintiff, was the trustee in a deed of trust executed by Frank Erskine and G. W. Rucker, to secure the payment of three several promissory notes, each for $6,250, to Wm. M. Price, due in one, two, and three years, respectively. Before maturity, Price, the payee, sold and assigned the first note to Greene Erskine, one of the defendants in this suit. The note was not paid when it became due, and no steps were then taken to enforce collection. After several months had elapsed, Greene Erskine desired Hurck, the trustee, to proceed and sell the property for the purpose of satisfying the debt. Hurck waited till the second note became due, and then sold the property, Price becoming the purchaser, for more than enough to pay off the first two notes, but less than enough to satisfy all three.

After the usual granting clause, the deed of trust contained the following provision: “Now, if said notes and interest, and every part thereof, be well and truly paid when due, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of said parties of the first part; but if said notes or interest, or any part thereof, be not well and truly paid when due, then all of said notes shall become forthwith due and payable, whether due on their face or not.”

Erskine claimed that his note first falling due, he was entitled to full satisfaction out of the proceeds, whilst Price contended that he was only entitled to an equal distributive share. In this contention the trustee brought his suit to compel the defendants to interplead and have their rights adjusted by the court. The Circuit Court adjudged a pro rata distribution, and decreed that an equal third be applied to each note respectively. Erskine excepted and sued out his writ of error.

In Mitchell v. Ladew, 36 Mo. 526, it was held that where a deed of trust secures several notes maturing at different dates, the notes shall be paid and satisfied in the order of priority in which they mature, notwithstanding they may be all due at the time the sale is made. The question was again considered and affirmed in Thompson v. Field, 38 Mo. 320.

But it was argued here that by the express terms of the deed of trust the notes all became due upon the first default in payment, and therefore they stood on an equality in the distribution of the fund. We do not concur in this view. A similar question arose in the case of Mason v. Barnard, 36 Mo. 384....