James Francis, for appellants.

Dafoe & Gustin, for appellees.

GRANT, C. J. 1. Defendants appear to rest their case upon the theory that they were subsequent creditors of McPherson, and that there was no proof of the filing of plaintiffs' mortgage. The original mortgage was introduced in evidence, and the record shows that it was filed in the township clerk's office November 8, 1895, at 6 o'clock p. m. The credits for which judgments were rendered were given after this mortgage was filed. least, the defendants failed to show that the mortgage was not filed before they extended credit. Unless, therefore, the lien law gave the lien of these parties precedence over the mortgage, they were subsequent creditors, with notice. As this question of precedence of liens under the statute is not argued, we express no opinion upon it, but dispose of this point upon the theory on which it was presented below and is argued here, and hold the mortgage good against subsequent creditors.

2. The sole evidence of the regularity of the proceedings before the justice was the docket entries made by him. These entries did not show the affidavit for the attachment, or any of the proceedings taken to establish a lien. When the defendants had rested and the proofs were closed, the circuit court stated that in all but one of these suits the writs were issued before any statements of lien were filed. The filing of a statement of lien is a condition precedent to the right to maintain a suit. 3 How. Stat. § 8427e. This being so, the justice had no jurisdiction in the cases under the lien law. Whether he had the right to proceed to judgment as if the suits were commenced by ordinary summons, we need not consider. If the liens failed, the defendants were only ordinary creditors, and the execution levy was subject to the mortgage.

3. Defendant Rea was the officer who sold the property upon the executions. Defendant Francis was the attorney for the plaintiffs in the four suits. The evidence for the

plaintiffs showed that the demand was made while Rea was advertising the property for sale under the executions; that Rea and Francis claimed that they were in possession of the property. There was no evidence of any actual possession on the part of any other one of the defendants. These defendants were simply judgment creditors. They were not shown to be in possession of, or exercising any control over, the property. No judgment could therefore be rendered against them. House v. Turner, 106 Mich. 240.

Judgment will be affirmed as to defendants Francis and Rea, and reversed as to the other defendants, with costs, and judgment entered in this court for them.

The other Justices concurred.

TAGGART v. WATERS.

JUSTICES OF THE PEACE-INTEREST IN CASE.

A justice of the peace is not disqualified from trying an action of assumpsit because he had written defendant to the effect that he had the claim for collection, and had been instructed to inform him that suit would be brought if it was not paid. Moon v. Stevens, 53 Mich. 144, followed.

Error to Saginaw; Wilber, J. Submitted January 6, 1898. Decided January 25, 1898.

Assumpsit by Hiram H. Taggart and others against Charles H. Waters for goods sold and delivered. From a judgment for defendant, plaintiffs bring error. versed.

John F. O'Keefe, for appellants.
Trask & Smith, for appellee.

Re

PER CURIAM. Plaintiffs brought suit in justice's court. Defendant appeared specially, and moved to quash the case, because the justice had written him that he had the claim for collection, and had been instructed to write him, and inform him that suit would be brought if it was not paid. Plaintiffs had judgment. Defendant took a special appeal to the circuit court, where it was sustained.

The court was in error. The case is ruled by Moon v. Stevens, 53 Mich. 144.

Reversed, and court below directed to proceed to trial upon the merits.

LIFE INSURANCE-CONDITIONAL ASSIGNMENT-BENEFICIARIES.
A policy of insurance was made payable to the beneficiary,
his executors, administrators, or assigns, in 60 days after due
notice and proof of death of the assured. The assured, who
was named in the policy as the beneficiary, assigned to his
wife all rights thereunder, with a provision that, in case of her
death before the policy should become "due," the proceeds
should go to the heirs or assigns of the assured. Held, that
the policy was not due, at the earliest, until 60 days after the
death of the assured, and that, under the terms of the assign-
ment, his heirs were entitled to the proceeds of the policy
where the assignee died within such period.

Appeal from Kent; Adsit, J. Submitted October 14, 1897. Decided February 16, 1898.

Bill of interpleader by the Northwestern Mutual Life Insurance Company against Julius Greiner, Orlando B. Scobey, administrator of the estate of Robert C. Greiner, deceased, and Elmer E. Whitted, administrator of the estate of Louise C. Greiner, deceased, to determine the bene

ficiary of a policy of insurance. From a decree for defendant Greiner, defendant Whitted appeals. Affirmed.

Taggart, Knappen & Denison, for appellant.

Uhl, Hyde & Earle, for appellee Greiner.

Frank W. Hine, for appellee Scobey.

HOOKER, J. May 22, 1879, a policy of insurance was issued to Robert C. Greiner, who married in 1880, and in December, 1881, assigned the policy to his wife, by a writing which reads as follows, viz.:

"December 28, 1881.

"For a valuable consideration, the receipt whereof is hereby acknowledged, I hereby assign and transfer to my wife, Louise C. Greiner, of Grand Rapids, Michigan, and for her sole use and benefit, all the right, title, and interest in and to policy No. 99,508, issued by the Northwestern Mutual Life Insurance Company. In case of the death of said assignee before the policy becomes due, then and in that case it shall be payable to the heirs or assigns of Robert C. Greiner.

"ROBERT C. GREINER. [L. S.] "LOUISE C. GREINER." [L. S.]

Premiums were paid seasonably and regularly, until Greiner's death, which occurred in August, 1895, both himself and wife being killed at Denver, in an hotel which was destroyed by explosion and fire. There is no evidence by which it can be determined whether either survived the other. Claims were made by the administrators of both husband and wife, and by the father of the husband, who was his heir. A bill of interpleader was filed by the company, and the money was paid into court. Upon the hearing of the cause, the claim of Julius Greiner, the father, was sustained, and Whitted, the administrator of the wife, has appealed.

Apparently, the case must turn upon the construction to be given the policy, with reference to the question of its maturity, and the meaning to be given to the words

"become due," as used in the assignment, unless we can say that the law will presume that the wife died first, which would become an important question if it should be held that the policy matured upon the death of the assured. Counsel for the administrator of the wife claim that the policy became due at the death of the husband, but, if it did not, that the provision of the assignment, viz. "In case of the death of the assignee before the policy becomes due, then and in that case it shall be payable to the heirs or assigns of Robert C. Greiner," should be held to mean that the death of the wife before that of her husband was necessary to give the father a right to the insurance.

There is no ambiguity in the language of the assignment, and we discover no circumstances surrounding the transaction which indicate that the assignor intended any but the ordinary meaning of the term "due," in its legal sense, unless we are to say that the natural regard for a wife should exclude the belief that he designed to deprive her representative of the insurance, though she should survive the husband, but not live until the policy should become a matured obligation. Under the terms of this policy, by prompt action in furnishing notice and proofs, it could be made payable within a period of a little more than 60 days, when it would certainly become due. There are forcible reasons for thinking that a man would naturally intend the wife to become the beneficiary upon his death, but it is not so clear that he would feel so if he could know that, by reason of her death before collection, the amount would be diverted from his father to persons of his wife's family. It is not improbable that many men would avoid such a result if anticipated. Certainly, it is not a natural inference from common knowledge that he would not. We think, therefore, that, unless we can say that this policy became legally due upon the husband's death, the wife's administrator has no claim upon it. The policy reads as follows:

115 MICH.- 41.