192
THE GREEN BAG
opinion concisely states the position of the court. This suit was not brought until more than one year after the death of the insured. We are aware that this or a similar provision is contained in nearly all insurance policies, fire and life. We are further aware that the provision is upheld by many courts, including the United States Supreme Court (Riddlesbarger v. Hartford Ins Co., 7 Wall. 386, 19 L. Ed. 257), and is approved by text writers. This court has also, though with hesita tion and misgiving, followed the other courts in approving it. We therefore have come to the reconsideration of this question with a deep sense of its importance and difficulty, and of our duty in the premises. The legal question is, can parties by contract substitute a period of limitation, bind ing upon the courts, for the statutes of limitation enacted by the Legislature? If they can, it must be upon some general principle, the breadth and far-reaching effect of which cannot logically be limited to mere contracts of insurance, but must incontrovertibly be applicable to all contracts; for, if it is a matter of agreement alone between parties competent to contract, the only inquiry that can ever be made is, have they agreed upon it. Pleas of limitation were allowed long before there was any statute on the subject. The courts applied them upon the theory of a fiction to the effect that after so long a lapse of time, during which the claimant made no assertion of his rights, in a personal demand, a presumption was raised that the obligation had been paid or discharged, and, in the case of real estate, that a conveyance had been executed but lost. The fiction was justi fied in the reasoning of the courts by the evident justness of its effect; it being argued that one who had so long neglected his rights as to allow the other party to suffer by it, by the loss of evidence and the like, ought not to be heard to disturb a condition he had suffered to come about. But statutes of limitation have come to be enacted everywhere. They arc not mere rules of evidence, presumptions of the payment or extinguishment of the obligation sued upon, but are statutes ex pressive of a public policy, and are favorably re garded by the law. They are not in operation or suspense at the mere will of the parties, but in spite of them. While the statutes themselves make provision for their suspension, it is to be noted that in every instance it is allowed for the purpose of continuing or prolonging a pre-existing right to sue, and never to close the door against suits by any kind of waiver in favor of an obligee. Many statutory provisions are made for the protection of personal rights, which the parties may avail themselves of or not, in their transac tions, as they may please. But where the statute
is expressive of the public policy, any contract made in contravention of it is ipso facto void. Parties will never be heard to say that they elect to waive the public policy, and are willing to abide by their own substituted policy. The public policy, as the term indicates, is impersonal, and essentially of universal and exclusive application within the territory of the authority declaring it. There could be no public policy otherwise, and the whole people would be powerless to enforce any wholesome general rule of conduct in business transactions, where any number chose to ignore or violate it. Statutes of limitation belong to this class. They pertain to the administration of justice by the courts of the state — a subject of paramount concern to the whole public. That there may be a period of repose against stale claims is provided, recognizing the old idea that, but for the loss of evidence, death or removal of witnesses, forgetfulness, and so on, an apparent condition might have been explained away. The statute means more than that no suit shall be maintained upon the class of claims treated of by it after the lapse of the time fixed by it. It means, also, that until that time has elapsed the courts are open to hear the claim. The statutes are substituted in lieu of the common-law rules of presumptions and practice, and establish the pub lic policy of the state on the subject of limitation of actions. They supersede not only the fictions of the common law, but also supersede the hith erto uncontrolled capacity of parties to them selves limit the time in which either may right fully appeal to the courts for redress under their contracts. Agreements in advance to waive statutes of limitation altogether are held void on the grounds that such statutes are for the repose, the peace, and the welfare of society. Greenhood on Public Policy, 504; Kellogg v. Dickinson, 147 Mass. 432, 18 N. E. 223, i L. R. A. 346; Trask v. Weeks, 81 Me. 325, 17 Atl. 162; Green v. Coos Bay Wagon Road Co. (C. C.) 23 Fed. 67. The court then discusses the definition of the term "public policy," giving Story's definition, and citing Brooks v. Cooper, 50 N. J. Eq. 761, 26 Atl. 978, 21 L. R. A. 617, 35 Am. St. Rep. 795, and People v. Hawkins, 137 N. Y. 12, 51 N. E. 257, 42 L. R. A. 490, 68 Am. St. Rep. 736, and also reviews the Kentucky cases bearing upon the question as to whether statutes of limitation are in that state indications of its public policy. The decision reverses the previous decisions in Ken tucky upon this point, and is also against the gen eral rule laid down by the United States Supreme Court and the courts of all of the other states, with the possible exception of Nebraska and Georgia.
