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than ordinary importance. Some of the questions involved in this case have never before been presented in this court, which is one reason for presenting my own views concerning them. Another reason is that the argument made by Mr. Justice MOORE favors the idea that the policy in suit was not avoided as to the owner of the property, the subject of the insurance, by the admitted change of interest in and title to the property.
The facts are simple. The owner of certain real and personal property insured it, in the usual way, for a total sum of $3,000. He insured the dwelling house for $500; household furniture for $200; barn and sheds for $1,500; hay and grain for $300; wagons, harnesses, etc., for $300; live stock for $200. He conveyed the real estate and appurtenances to plaintiffs by deed, and plaintiffs made with the insured and his wife a contract to reconvey the same to them upon conditions and, pending performance of the conditions, to give them possession of the premises. A lien was given in the contract upon all of the personal property of the vendees for any sum accruing to the vendors. This transaction was brought to the attention of the defendant, and it indorsed upon the policy of insurance the words:
"It is understood and agreed that M. S. Harkness holds this property under contract of purchase, loss, if any, payable to Joseph G. Gourlay and Mary L. Gourlay and M. S. Harkness as their respective interests may appear.”
So far the case is not complicated; the policy, with its indorsement, being, in effect, a new policy insuring the vendee in the land contract, who was also the owner of the personal property, against loss or damage by fire, loss payable to the Gourlays as their interest may appear. It is not very material to inquire whether, if a fire had occurred before other changes took place, plaintiffs might have maintained a suit upon the policy. Before the standard form of policy was adopted, it was generally understood that in this State a mortgagee, or other lienor, mentioned in a policy of insurance was a mere appointee of the insured, the contract being a personal contract between the insured and the insurer. Commentators and textbook writers regarded the decisions of this court as conclusive upon this subject. The apparent exceptions to the rule made in some of the cases only confirmed the rule. In Westchester Fire Ins. Co. v. Dodge, 44 Mich. 420 (6 N. W. 865), referred to in the opinion of Mr. Justice MOORE, it was said that the mortgagee named in the policy was one of the persons assured, within the meaning of the policy. Reference to the opinion in that case and in the one upon which it is based (Watertown Fire Ins. Co. v. Sewing Machine Co., 41 Mich. 131 [1 N. W. 961, 32 Am. Rep. 146]), shows that it was not intended to hold that the mortgagee was a party to the contract of insurance. In the case last mentioned one question was whether the provision in the policy relating to notice of the fire had been complied with. The insured did not give any notice; the mortgagee mentioned in the policy did give the notice. The provision of the policy was that “in case of loss the assured shall give immediate notice.
It was held that the notice given by the mortgagee was sufficient because the insured ought not to be permitted by the neglect or refusal to give it to deprive the mortgagee, who had a direct interest in the matter, of his rights. And it is said, although it was not necessary to say it, and the point was not necessarily involved, that the mortgagee was one of the parties "assured" within the meaning of the policy. In Westchester Fire Ins. Co. v. Dodge, supra, one question was whether the death of the person insured before the loss occurred rendered the policy void, because thereby title to the property changed, and it was held that it would not in a case where the policy by its terms made the loss payable to a mortgagee; since the mortgagee's rights could not be cut off by the death of the person to whom the policy was issued. Another question was whether suit was begun (by the administrator of the estate for the use and benefit of the mortgagee) in season; the policy providing that suit must be begun within 12 months after the loss occurred. It was held that the insurer was estopped to raise the question, and in this connection it is said that:
"The mortgagee was one of the persons assured within the meaning of the policy (Watertown Ins. Co. v. Sewing Machine Co., 41 Mich. 136 [1 N. W. 961, 32 Am. Rep. 146]), and there may be some question whether his rights could be made to suffer by the delay in the appointment of an administrator and the furnishing of proofs of loss."
Another question was whether the administrator (personal representative of the deceased insured) could bring the action, the title to the property having descended to heirs or passed by the terms of his will. Without deciding this, it was said that, being brought for the use and benefit of the mortgagee to whom the loss was made payable by the policy, the objection was without force.
I think it may be said, in view of earlier and of later decisions, notably Van Buren v. Insurance Co., 28 Mich. 398, Minnock v. Insurance Co., 90 Mich. 236 (51 N. W. 367), and Jaskulski v. Insurance Co., 131 Mich. 603 (92 N. W. 98), that before the standard form of policy came into use the usual loss payable clause or rider in or upon a policy of insurance created no contract relations between the mortgagee and the insurer. The default of the insured or his breach of the conditions of the policy avoided it, and no right of the mortgagee survived the breach of conditions avoiding the policy. It does not avoid the force of our own decisions or advance us in the determination of the real questions involved here to cite cases holding that the mortgagee or other lienor named in a policy may bring suit upon the policy in his own name. Those decisions depend upon a great variety of circumstances, in most of the cases upon the provisions of Codes or other forms of statutes.
The vital questions in the case at bar arise upon circumstances occurring after the policy had been indorsed in the manner above stated, and before loss occurred. Without the consent of defendant, the wife of Harkness transferred her interest in the land contract to her husband. He defaulted, the contract was forfeited, and by him was surrendered and canceled. He again transferred the premises to the plaintiffs by deed, and gave to them a bill of sale of the personal property. Thereafter the insured had no interest, legal or equitable, in any property described in the policy. Whether before or after the fire does not appear, but the insured also assigned to plaintiffs the policy of insurance. The policy provides that, if any change, other than the death of an insured, take place in the interest, title, or possession of the subject of insurance, whether by legal process or judgment, or by voluntary act of the insured, or otherwise, the policy shall be void. We have held that, where possession and control of the insured premises were retained by the insured (owner), the making of an executory contract of sale thereof, the vendee not having acquired such an interest as would authorize him to enforce the contract specifically or enable him to secure possession, there was not such a change of title as would avoid the policy. Zeitler v. Insurance Co., 169 Mich. 555 (135 N. W. 332). It was said in the opinion in this latter case:
“The contract of insurance in this case is a 'Michigan standard policy-a form of insurance policy adopted and promulgated by statutory authority for general use throughout the State. It would be narrow and unjustly technical to hold that the form of words adopted for such a policy is inelastic and must have an exact and definite meaning by strict construction, always conveying the same understanding between the parties under all varying circumstances. We think such contracts should be construed with reference to the relations of the parties and the character and situation of the property insured. The court should interpret those forfeiture clauses in the light of the facts and circumstances proven, within proper limits, having in mind the ordinary meaning of the language found in them as applied to the purpose for which the contract was made.”
Having determined that there had been no change of title or ownership, which decided the point in controversy, the significance of the language quoted is open to question. The Michigan standard policy, when it is issued, is a contract. Its terms may need construction. But upon the question involved the fact that there has been a change in interest, title, or possession of the subject of insurance either does or does not avoid the policy. The opinion received the assent of less than a majority of the justices, although all sitting concurred in the result, for which reason it may be said that the decision rests upon the point that change of interest, title, or possession in the subject of insurance was not established.
In Foiles v. Insurance Co., 175 Mich. 716 (141 N. W. 879), it appeared that plaintiff was the owner of the title to real estate which she insured in her own name, the policy containing evidence by a rider thereupon that the property had been sold upon land contract and that it was mortgaged. Loss, subject to all the terms and conditions of the policy, was made payable to a third person. Before the loss occurred, the mortgage was foreclosed by advertisement, but plaintiff had no knowledge thereof. This, by the