Page:North Dakota Reports (vol. 48).pdf/328

 fraud in procuring the issuance thereof, there would be no opportunity to discover it before the policy became operative, but here the defendant had an entire year from the date of the policy in which to discover fraud, or any other sufficient cause, to rescind the policy and tender back the premium. It wholly failed to do so within that time, after which, by the terms of the contract, it had no right for any cause whatever, except the nonpayment of premium, to rescind it and void the policy.

In other words, after the expiration of a year, where there is no default in the payment of the premium, and thereafter the death of the insured should occur, the defendant has no defense against the collection or payment of the amount specified in the policy. It, in substance, has stipulated to that effect in its policy.

As above stated, the jury specifically found there was no fraud. That determined that question. We think it is a general rule, however, that, whatever form fraud may assume, or in whatever guise it makes its appearance, it is not countenanced by the court. Here, however, the defendant reserved a specific period of time, it must be presumed, within which to examine every reason, if any existed, why it should not continue the policy in force. If it had done so, it could perhaps have discovered within the year the facts with reference to the insured’s consultation with Dr. Oliver. It did not, however, so far as this record shows, make any investigation of any kind or character, within the year as to the truth of any of the statements of the insured, made in her application, nor otherwise do any act looking toward rescinding the policy.

It is not a case where there were no means, opportunity, or possibility of discovering fraud. The incontestability clause is one, no doubt, used by the defendant as an inducement to those desiring to purchase insurance. It, no doubt, points out to them, by its agents, that by the terms of the policy after the expiration of the year there can be no defense of any kind or character interposed against the collection of the amount specified in the policy, in case the death of the insured should occur and proceedings were had to collect the amount specified in the policy, except only for the nonpayment of premium, The defendant ought not be permitted to lull the insured into a feeling of security by the use of the incontestability clause. and then endeavor to avoid its contract when death has forever sealed the lips of the insured, after having had the time specified by that clause to rescind the whole contract, which it wholly failed to do.

It would seem the same rule is applicable as that which obtains where