contract or policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss.” Compiled Laws, § 6501; Soules v. B. of Am. Yeoman, 19 N. D. 23; 120 N. W. 760; Donohue v. Mutual Life Ins. Co. 37 N. D. 210.
“Where the applicant is asked whether he consulted a physician, been prescribed for, or professionally treated he must answer truthfully and it is immaterial whether he was prescribed for on account of disease or only temporary or trivial ailment; this has been held to include medical treatment two years previous.” 1 Bacon L. & Acc. Ins. § 284; citing many authorities under notes 386 and 387.
Craven & Converse, and T. F. Burns, for respondent.
Mut. Life Ins. Co. v. Buford, (Okla.) 160 Pac. 928.
“Where petition states and evidence shows, a good cause of action upon a policy of life insurance, containing a condition of non-forfeiture after two. years from date of issuance of policy, and the only defense pleaded is breach of warranties contained in the application for the insurance, pleaded more than two years after policy became incontestible such breach constitutes no defense and the court should direct a verdict for plaintiff.” 42 L. R. A. 249, note.
“If the insurer desired to avoid the policy, on the ground of misrepresentation * * * it should, in the absence of the consent on the part of the insured and the beneficiary, have taken legal steps to do so within the two years from the date of issuance of the policy and failing to do so * * * the policy was incontestable.” Bibble v. Ins. Co. (Cal.)}} 149 Pac. 171; and cases therein cited; Clement v. Ins. Co. (Tenn.)}} 42 L. R. A. 247 and note, “Incontestability by terms of policy”; Patterson v. Ins. Co. (Wis.)}} 42 L. R. A. 253; Ins. Co. v. McGuinis, (Ind.)}} 101 N. E. 289; 45 L. R. A. (N. S.)}} 192; Duvall v. Ins. Co. (Idaho) 154 Pac. 632; L. R. A. 1917E, 333 and note at 338 and particularly subdivision of said note “Construction of clause as regards fraud,” at p. 341.
Grace, J. This is an appeal from a judgment in plaintiff’s favor, for $2,200.45, entered on.a special verdict, and from an order denying judgment in defendant’s favor on a special verdict.
The action was brought to recover on a joint policy of life insurance,
