[2] The agreement is nothing more than an option to purchase. Under it appellees could not require appellant to do anything, and if he failed to pay the $5,440 on October 17th, it is specifically provided in the agreement that the receipt is to become void and of no effect, and that both parties should be released from all obligations thereunder, and it was further provided that the $500 paid at the time the receipt was signed should constitute liquidated damages. Under these circumstances, the judgment of the trial court, canceling the option agreement and quieting title to the land therein described, and in this action involved, in the plaintiffs, was eminently proper, and the same will be affirmed. Judgment affirmed.

Neal, William D. Thomas, Present Owners." | good title, is wholly without merit, and the October 17th, the last day provided for the merest subterfuge. transfer of the land described in the foregoing agreement, and the payment of the money, fell upon Sunday. On Saturday, October 16th, appellees called at appellant's office for the purpose of carrying out the conditions provided in the agreement, but appellant was not in. They called again on Monday, and offered to carry out their part of the agreement. The evidence shows clearly that appellant was unable to raise the money, but asked for an extension of time. This the appellees declined to grant. Thereafter, appellant placed the agreement of record, and this suit was brought by appellees to have the same declared void and their title quieted. Appellant answered, alleging the performance on his part of all the conditions of the agreement, pleading a tender, and alleging his ability and willingness to pay the money which, by the agreement, he was required to pay. But on the trial his own testimony showed that he was, even then, unable to raise the money, and that on October 29th, when he had made a written, and his only, demand for an abstract, he did not have the money with which to meet his obligations under the agreement.

[1] Appellant seeks to excuse his failure to comply with the conditions of the agreement requiring the payment of $5,440 on October 17th by the fact that the appellees did not voluntarily, and without any request on his part, tender an abstract showing good, merchantable title, until within a day of the time, or a day after the time, the contract expired, and he insists that no sufficient abstract was ever tendered, and that therefore he has never been in default. This contention is wholly without merit. The evidence shows that appellees, on Monday, October 18th, tendered an abstract certified down to within three days of that time, and produced a patent, which had just been issued, running from the state to themselves, for the land in question. The land was situated in Weld county, and it was not reasonable to expect that an abstract to land situated in another county could be tendered in Denver, where all the parties lived, certified down to the hour at which it was tendered. Moreover, appellant did not, at the time the abstract was produced, base his refusal to pay the money which the contract required he should pay upon any defect in the title or the insufficiency of the abstract, but solely upon his financial inability to meet his payments. His own testimony shows conclusively that the allegations in his complaint that he has “always been ready and willing, and still is ready and willing, to pay the purchase price mentioned and set forth in said contract" were false, and it also shows that his attempted defense, based on the alleged failure of appellees to tender

(25 Colo. A. 326)

GERMANIA LIFE INS. CO. OF NEW
YORK CITY v. KLEIN.

(Court of Appeals of Colorado. Dec. 8, 1913.)
1. INSURANCE (8 151*) - LIFE INSURANCE
CONTRACTS.

A life policy which stipulates that insurer issues the policy in consideration of the representations made in the application which is made the basis of and a part of the contract makes the application a part of the contract.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 308-311; Dec. Dig. § 151.*] 2. INSURANCE (§ 256*) - LIFE INSURANCE MISREPRESENTATIONS IN APPLICATION.

Where statements in an application for life insurance are false and material to the risk on which the policy is based, the false statements avoid the policy whether the representations were the result of intention or of mistake or whether made in good faith or not.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 540, 549; Dec. Dig. § 256.*] 3. INSURANCE (§ 292*) - LIFE INSURANCE MISREPRESENTATIONS IN APPLICATION.

life policy that the applicant had not had any
A statement made in an application for a
of diseases inquired of and had never consulted
a physician, while as a fact she had consulted
a physician who had treated her for carcinoma
of the liver without advising her of the gravity
of her disease, is a false statement invalidating
the policy issued in consideration of the state-
ments in the application, whether deemed a rep-
resentation or a warranty.

Cent. Dig. §§ 691, 692; Dec. Dig. § 292.*]
[Ed. Note.-For other cases, see Insurance,

4. TRIAL (§ 296*)-INSTRUCTIONS-INCONSIST-
ENT INSTRUCTIONS.

Where two instructions are irreconcilable and one of them is wrong, the instructions are bad as a whole.

[Ed. Note.-For other cases, see Trial, Cent. 296.*1 Dig. 88 705-713, 715, 716, 718; Dec. Dig. § 5. INSURANCE (§ 290*) — LIFE INSURANCE

REPRESENTATIONS AS TO AGE.

A misrepresentation by an applicant for life insurance of her age by representing that she was 50 years old at her nearest birthday, while in fact 63, defeats only the policy pro tanto, and insurer is liable to the amount of

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

-SUBMIS

the insurance which the premium paid would | tract. What constitutes the application is have purchased at the age of 63. declared and agreed upon as follows: "It [Ed. Note. For other cases, see Insurance, is hereby declared and agreed that all the Cent. Dig. § 671; Dec. Dig. § 290.*] statements and representations contained in the foregoing application and those conWhere a fact defeating a recovery by plain-tained in the declarations made to the medtiff was established by uncontradicted evidence, ical examiner, which, together with this decit was error to submit the issue to the jury as laration of agreement, constitute an applicaone in dispute.

6. TRIAL ( 141*) - INSTRUCTIONS SION OF ISSUE TO JURY.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 336; Dec. Dig. § 141.*]

Appeal from District Court, Pueblo County; J. E. Rizer, Judge.

Action by Julia Klein against the Germania Life Insurance Company of New York City. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

F. A. Williams and G. Q. Richmond, both of Denver, for appellant. James A. Park and Benj. F. Koperlik, both of Pueblo, for appellee.

KING, J. This was an action, brought to recover on a life insurance policy, in which the verdict and judgment were for the plaintiff.

tion to the Germania Life Insurance Company of New York for an insurance upon the life of the undersigned Pauline Klein in the amount of fifteen hundred dollars, are offered to the said company as a consideration of the contract applied for, each of which statements and answers, whether written by his or her own hand or not, every

person whose name is hereto subscribed adopts as his or her own, admits to be material, and warrants to be full, complete and true, and to be the only statements given to the company in reply to its inquiries, and upon which, should the insurance applied for be granted, the company's contract will be founded." The application proper, including this declaration and agreement, and also the answers made to the questions asked by the medical examiner, were subscribed by Pauline Klein, so that, by the express terms of both the policy and the application, all these statements, representations, and declarations, by whatever name they may be called, became a part of the contract of insurance and the basis upon which the policy was issued.

The evidence conclusively showed, and the jury found, that, at the time of making the application, insured was 63 years of age at her nearest birthday instead of 50 years of age, as stated in her application, and for that reason the verdict was returned and judgment rendered for $898.42, the amount of insurance which the premium actually paid would have purchased at the age of 63 years.

On the 22d day of September, 1905, Pauline Klein made written application to the Germania Life Insurance Company of New York for $1,500 insurance on her life. Among other things, she stated that she was 50 years of age at her nearest birthday; a resident of the city of Pueblo, Colo.; had not had any of the diseases inquired of in the medical examination; had never consulted a physician; had never removed to benefit her health, and did not contemplate a change of residence. The application was accepted and policy issued at the home office in New York under date of October 19, 1905, and policy delivered to the insured at Pueblo about the last of October. Immediately thereafter she returned to Philadelphia, Pa., whence she had come during the previous The evidence as conclusively showed that, June, and at which place she died on Jan- for at least four years before she made her uary 10, 1906. Death was caused by car- application, the insured had been consulting cinoma of the gall bladder. a physician for some ailment or disease, The defense to the action on the policy and that from about April 4, 1904, to the was in substance that insured had understat-time of her death, with the exception of the ed her age by 13 years; that she had secured the insurance by false representations of facts material to the risk; that the statements and representations made in her application were warranties; and that there was a breach of such warranties.

few months she resided or visited in Colorado, she had been treated for carcinoma of the liver. Dr. C. H. Lefcowitch, a practicing physician of Philadelphia, a graduate of Jefferson Medical College of that city, and for some years assistant surgeon to the Phil[1] The policy states that "the Germania adelphia Polyclinic Hospital, testified that Life Insurance Company of the City of New he was physician for said Pauline Klein York, in consideration of the representations from September 12, 1901, to November 26, made in the application for this policy, which | 1905; that prior to April 4, 1904, he had application is hereby made the basis of and a part of this contract and of the payment, does hereby promise and agree," etc. By this provision of the policy it is plain that the application as a whole is made the basis of and a part of the con

*

treated her at various times for gastrointestinal derangement, and from said April 4th for carcinoma of the liver, and had been consulted by her just previous to her departure for Colorado; that upon return of the insured to Philadelphia he treated her

from November 21st to November 26th, in- | clusive, for the same disease. From about December 1, 1905, to the time of her death she was attended by Dr. Fussell, assistant professor of medicine at the University of Pennsylvania, chief of the medical dispensary of and lecturer on diseases of the liver at that institution, and also physician to some hospitals in that city, a practicing physician of 22 years' experience. The disease was diagnosed by him as carcinoma of the liver and so treated. However, an autopsy performed by him and his associates disclosed that the carcinoma was of the gall bladder, with secondary deposits or infiltration into the liver and duodenum; that the gall bladder was entirely destroyed, and that death ensued from carcinoma of that organ instead of the liver; that what during life had been regarded as a malignant tumor of the liver was a prolapsed and prolonged lobe of that organ, projecting into the abdomen below the ribs, but it was not carcinomatous, at least until of a recent date,

and not the cause of her death. The tes

timony of both Dr. Lefcowitch and Dr. Fussell was by deposition, and for that reason the verdict of the jury is not conclusive on this court as to the veracity of those two witnesses, even though it be conceded that the opinion of either of them as to the time the fatal disease originated conflicts with other opinion evidence.

[2] As we view the case, it is not necessary for us to determine whether the statements and declarations contained in the application are warranties or representations only, as the latter term is used to distinguish statements and declarations that are express warranties from those which are not. For the purpose of determining this case, it will be assumed that by virtue of the clause in the policy which recites that, "in consideration of the representations made in the application for this policy," the company "does hereby promise and agree," etc., the statements and declarations contained in the application are made representations and A false statement not express warranties. or declaration of a fact material to the risk, and upon which the policy is based, will avoid the policy, whether that misrepresentation be the result of intention or of mistake, and whether made in good faith or not so made. Such misrepresentation is as fatal. 1 to the policy as a breach of warranty. May on Insurance, § 181; 3 Cooley's Briefs on Law of Insurance, pp. 1950a to 1954d; Trav. Ins. Co. v. Lampkin, 5 Colo. App. 177183, 38 Pac, 335; Sun Fire Office v. Wich, 6 Colo. App. 103, 39 Pac. 587; Des Moines Life Ass'n v. Owen, 10 Colo. App. 131, 134, 50 Pac. 210; Nat. Mut. Fire Ins. Co. v. Duncan, 44 Colo. 472, 476, 98 Pac. 634, 20 L. R. A. (N. S.) 340; Northwestern L. A. Co. v. Tietze, 16 Colo. App. 205, 64 Pac. 773; Am. Bond & Trust Co. v. Burke, 36 Colo. 49, 58, 85 Pac. 692; 2 Cooley's Briefs on Law of Insurance, p. 1166.

The testimony of Dr. Lefcowitch that he had been consulted by and had treated the insured at various times for several years, The foregoing authorities, including the deand that for at least a year prior to the cisions of the highest courts of this state, time her application for insurance was made we regard as conclusive on the proposition had regarded and treated the disease as that, if representations made in answer to chronic carcinoma, is neither disputed by specific questions material to the risk are any other witness nor in any substantial untrue, the policy will thereby be rendered respect discredited in the slightest degree. void, and that it is immaterial whether such His veracity is in no degree impeached by answers be considered warranties or reprethe slight inaccuracy of his diagnosis. The sentations, or whether they were made with fact of consultation was conclusively estab-intention to deceive the insurer or without lished, and the jury should have been so in- such intention. structed.

Under this condition of the contract of insurance and of the evidence, the court instructed the jury that under the provisions of the policy the statements of Pauline Klein contained in the application and her declarations to the medical examiner were not warranties but representations only, and if false would not affect the validity of the policy unless they related to statements material to the risk and were fraudulently made with intention to deceive, and, unless they found that such false statement had been made with such intention to deceive, the verdict should be for the plaintiff, and also instructed the jury that, even though the statement that she had consulted no physician was false, the policy would not thereby be avoided, unless the jury further found that in making such statement she nad not made the answer in good faith.

[3] In our opinion no inquiry was made in the instant case, or can be made, more material to the risk and more essential to properly advise the company contemplating or considering the issuance of a policy, and which would more probably influence it in determining whether it would enter into the contract, than the question as to whether the applicant had consulted a physician, or what physician she had consulted. It is in evidence that this answer was relied on by the company in approving the application. If the applicant had truthfully answered that she had consulted and been treated by Dr. Lefcowitch, inquiry could have been made of him, and it will be presumed that the company would have been informed that he had diagnosed her case as carcinoma of the liver and had so treated it, and there is little reason to doubt that such information would have so influenced the defendant in this case

[6] In view of the conclusion we have reached that a material false representation made by the insured to the insurer was shown by uncontradicted evidence, it was er

that it would have declined the application. | presumably within the personal knowledge of It appears that the applicant had not been the applicant (the first approximately) and advised, by the doctor she consulted, of the were so grossly false that, whether attributed gravity of her ailment or disease as diagnos- to ignorance so dense as to be almost ined by him; but the fact of the consultation credible, or to an intention and design fo of a physician or its materiality does not deceive and defraud, being material, they depend upon the gravity of the subject of constituted fraud in law. The first misreprethe interview as regarded by the patient; sentation, by the terms of the contract, deand while such a representation may at feated the policy pro tanto, the other in its times be found and held to have been imma- entirety. terial to the risk and, if false, not prejudicial because the consultation was in fact, both from the viewpoint of the patient and of the physician consulted, for a merely temporary ailment, that fact cannot avail plain-ror to submit that question to the jury as a tiff in this case, where the materiality of the representation has been so fully and conclusively shown by the evidence. That statements as to consultations of or attendance by physicians under such circumstances are material to the risk, and if false avoid the policy to the same extent as if they had been express warranties, is supported by both reason and authority. 25 Cyc. 801, S06; 2 Cooley's Briefs on Law of Insurance, p. 1166; Metropolitan Life Ins. Co. v. Brubaker, 78 Kan, 146, 96 Pac. 62, 18 L. R. A. (N. S.) 362, 130 Am. St. Rep. 356, 16 Ann. Cas. 267; 3 Cooley's Briefs on Law of Insurance, p. 2156a; Rigby v. Metropolitan Life Ins. Co., 240 Pa. 332, 87 Atl. 428; Owen v. Metropolitan Life Ins. Co., 74 N. J. Law, 770, 67 Atl. 25, 122 Am. St. Rep. 413;

Bryant v. Mod. Woodmen, 86 Neb. 372, 125 N. W. 621, 27 L. R. A. (N. S.) 330, 21 Ann. Cas. 365; Schwarzbach v. Ohio Val. Protective Union, 25 W. Va. 622, 52 Am. Rep. 227; · Kasprzyk v. Metropolitan L. I. Co., 79 Misc. Rep. 263, 140 N. Y. Supp. 211; Trav. Ins. Co. v. Lampkin, 5 Colo. App. 177, 38 Pac. 335; 3 Cooley's Briefs on Law of Insurance, pp. 1953c, 1959; Mattson v. Mod. Samaritans, 91 Minn. 434, 98 N. W. 330. There should be no deviation from this rule as to untrue answers in an application in regard to matters material to the risk and which are within the knowledge of the applicant.

[4] The instruction that the false representation of a matter material to the risk would not avoid the policy, unless made with intention to deceive and defraud the insurer, was erroneous. 2 Cooley's Briefs on Law of Insurance, p. 1166, and cases cited. The còntention made by appellee that this instruction was cured by another or others is untenable. That feature or phase of the first instruction was aggravated by other instructions, except in so far as the second instruction was diametrically opposed to and inconsistent with the first, and in so far as those two instructions are inconsistent and irreconcilable with each other, and one of them wrong, they make the instructions bad as a whole.

[5] The representations as to her age and consultation of physicians were of matters

question in dispute. Des Moines Life Ass'n v. Owen, 16 Colo. App. 60, 63 Pac. 781; City of Denver v. Murray, 18 Colo. App. 142, 70 Pac. 440; Weston v. Livezey, 45 Colo. 142, 100 Pac. 404; Webster v. Rhodes, 49 Colo. 203, 112 Pac. 324. An instructed verdict for defendant should have been rendered.

The judgment is reversed, and cause remanded, with instructions to enter judgment for the defendant. Reversed.

(25 Colo. A. 296)

PARKS et al. v. ROTH.
(Court of Appeals of Colorado. Dec. 8, 1913.)
1. TAXATION (§ 810*)-ACTION TO QUIET TITLE
-DEFENSES-EVIDENCE.

claimed under a tax deed, but offered the deed
Where in a suit to quiet title defendants
in evidence only as color of title, and not as
proof of the title pleaded, they failed to establish
title in themselves as a defense to the action.
(Ed. Note.-For other cases, see Taxation,
Cent. Dig. §§ 1605-1608; Dec. Dig. § 810.*]
2. TAXATION (§ 742*)—TAX DEED-INVALIDITY.

Where land sold for taxes was bought by the county, and the county clerk assigned the certificate of sale more than three years thereafter, a tax deed showing such facts was void on its face.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1481-1484; Dec. Dig. § 742.*] 3. TAXATION (§ 805*)-LIMITATIONS.

In a suit to quiet title to real property as against a tax title, the short statute of limitations (Mills' Ann. St. § 3904) is not available as a plea in bar.

(Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*] 4. JUDGMENT (§ 951*)-EVIDENCE-JUDGMENT ROLL.

A certified copy of a decree without the judgment roll is inadmissible as proof of title to real property under the decree.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1808-1812; Dec. Dig. § 951.*] 5. TAXATION (§ 805*)-TAX DEED QUENT PAYMENT OF TAXES-LIMITATIONS.

SUBSE

Where a tax deed was recorded April 22, 1901, and the first taxes thereafter paid by defendants under their tax title were paid in 1902 for the year 1901, and thereafter the taxes for the years 1903, 1904, 1905, and 1906, the pay

ment in 1902 could not be counted as a payment for one of the seven successive years required to

establish title under the seven-year statute of stantially all the objections urged by appellimitations.

HURLBUT, J. On December 27, 1909, ap-have heretofore held that under issues such pellee as plaintiff instituted an action against defendants to quiet title to land in Yuma county. Plaintiff recovered judgment, from which this appeal is prosecuted.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes