In re Miller

• Decision Date: 01 October 1928
• Docket Number: No. 38,June Term, 1928.,38
• Citation: 244 Mich. 302,221 N.W. 146
• Parties: In re MILLER. Petition of FREMONT CO-OP. PRODUCE CO.
• Court: Michigan Supreme Court

244 Mich. 302

221 N.W. 146

In re MILLER.

Petition of FREMONT CO-OP. PRODUCE CO.

No. 38, June Term, 1928.

Supreme Court of Michigan.

Oct. 1, 1928.

Appeal from Circuit Court, Newaygo County, in Chancery; Joseph Barton, Judge.

In the matter of the assignment of Oscar c. Miller, doing business under the name and style of Fremont Greenhouses, for the benefit of his creditors, to Fremont Lumber & Fuel Company, assignee and trustee. Petition by Fremont Co-operative Produce Company for an order that assignee surrender mortgaged property to petitioner or that chattel mortgage be foreclosed. From decree dismissing petition, petitioner appeals. Reversed and rendered.

Argued before the Entire Bench.

Harry D. Reber, of Fremont, for appellant.

Wm. J. Branstrom, of Fremont, for appellee.

NORTH, J.

Oscar C. Miller, doing business as the Fremont Greenhouses, became indebted to the Fremont Co-operative Produce Company for coal in the sum of $2,954.62; and on April 30, 1924, he gave the Fremont Co-operative Produce Company notes for the foregoing amount and a chattel mortgage to secure their payment. This mortgage described the property covered by it as follows:

‘All and singular the crops of radishes, lettuce, tomatoes, flowers, plants and other crops whatsoever, now standing or growing, or that may hereafter be raised, grown, or produced in the greenhouses owned or operated by said first party and situated upon the following described premises in the city of Fremont, Newaygo county, Michigan.’ (Description follows.)

The mortgagor was the owner in fee of the land on which the greenhouses were located. By its terms the mortgage authorized the mortgagee to enter upon the premises and to retain possession thereof to the extent necessary to mature and harvest growing crops covered by the mortgage and to sell the same to satisfy the indebtedness. The mortgage notes matured in 1924, and during that year the indebtedness was reduced by payments to $1,242.50. Nothing further was paid on this mortgage, and on the 30th of December, 1926, Mr. Miller, who had continued to operate the greenhouses in the meantime, made an assignment for the benefit of creditors. The Fremont Lumber & Fuel Company was named as assignee and trustee. At the time of this assignment there was a crop growing in the greenhouses, which was inventoried at $1,000. On May 1, 1927, Miller demanded that the assignee and trustee surrender possession of the greenhouse premises and the property which he claimed was covered by the chattel mortgage for the purpose of foreclosure. Possession was refused, and thereupon the mortgagee filed a petition in the assignment proceedings pending in the circuit court of Newaygo county, praying that the assignee be ordered by the court to surrender the mortgaged property to the petitioner, or that the chattel mortgage be foreclosed...