Plaintiff brought suit against defendant for the sum of $444, the proceeds of the sale of 60 young pigs which had been raised by Adolph Opel, upon which it held a mortgage. The sale of the pigs was consented to by the mortgagee and made by the mortgagor for the sum of $444, which he took to the defendant bank, with the request that it be forwarded to the plaintiff. The bank kept the money, under the claim that it was covered by its mortgage, refused to forward the money to plaintiff or refund the money to Opel and plaintiff brought suit. The case was tried by the court without a jury and a judgment was rendered for defendant. Plaintiff appealed by leave of this court.
Adolph and Julia Opel had given a chattel mortgage on December 3, 1930, to the Deerfield State Bank of Deerfield, Michigan, in the sum of $1,200, with interest at 7 per cent, covering 5 cows (2 Guernsey, 3 Holstein), 7 brood sows, 5 head of horses (1 team grey mares, 10 years old, one roan colt, two years old, one roan horse colt, yearling, one *Page 643 sucking colt), one Dodge victory six sedan, all of said property being situated on their farm in Deerfield township, Lenawee county, Michigan.
This mortgage was filed in the proper township clerk's office on December 4, 1930, at 8:30 o'clock a. m. and is exhibit A, page 12 in the record. On July 31, 1931, Adolph and Julia Opel made a chattel mortgage to the plaintiff to secure a debt of $784.66, on the following property, — 7 brood sows, 60 spring pigs, 20 acres growing barley, 52 acres growing oats, 60 acres growing corn, 10 acres growing beets, 30 acres growing alfalfa, all of which property was situated on their farm in Deerfield township.
On December 23, 1931, Opel sold the 60 spring pigs for the sum of $444, which he was authorized to do by plaintiff, which money he took to the Deerfield bank with the request that it be forwarded to the C. F. Medaris Company as a payment on his debt. The bank refused to transmit the money to the Medaris Company and kept it and applied it on their own debt and the plaintiff brought suit for the $444.
The mortgage to the Deerfield Bank, marked exhibit A on page 12 of the record, was dated December 3, 1930, made by Adolph and Julia Opel for the sum of $1,200 and the property described was 5 cows (2 Guernsey, 3 Holstein), 7 brood sows, 5 head of horses (1 team grey mares, 10 years old, 1 roan colt, 2 years old, 1 roan horse colt, yearling, 1 sucking colt), 1 Dodge victory six sedan, all of said property being located at the farm of Adolph Opel in the township of Deerfield.
This mortgage was filed on the 4th day of December, 1930, at 8:30 a. m., and was not renewed within the 30 days prior to the expiration of the year, but a new mortgage was given by the same parties to *Page 644 the Deerfield bank on the same property as in the first mortgage for the sum of $960.97. It did not mention the spring pigs and it was filed on the 4th day of December, 1931. On the execution and delivery of the mortgage of December 3, 1931, the former note and chattel mortgage of December 3, 1930, were returned to Mr. Opel. Judgment was rendered for defendant on October 18, 1932, and a motion for a new trial was denied.
The notation that this chattel mortgage is a renewal of the chattel mortgage filed with the clerk on December 4, 1931, was not signed by any person, and no mention is made of the 60 pigs in the so-called renewal mortgage, although they were born several months prior to December 4, 1931.
The mortgage to the bank not having been renewed by a renewal affidavit filed within 30 days before the end of the year, and the pigs sold not being increase under the second mortgage, the sale of the 60 spring pigs was legal, and the bank had no right to refuse to forward the money to plaintiff or to apply it on its debt. If it refused to forward the money it should have returned it to Opel. Besides that, its debt had been reduced from $1,200 to $960.97, and it apparently had ample security, as its mortgage was still good as against the mortgagors.
The judgment for defendant is reversed, with costs of both courts, and the case is remanded to Lenawee circuit court with directions to enter judgment for plaintiff.
POTTER and SHARPE, JJ., concurred with WEADOCK, J.
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