2. When writ of, will be issued by supreme court in exercise of its original jurisdiction. Id.
(Necessary parties defendant in action to enjoin sale of lands for taxes. See Judgment.)
INSOLVENCY.
(See Assignment for Benefit of Creditors.)
INSTRUCTIONS.
(See Charging Jury; Trial.)
INSURANCE.
Limitation of Time to Bring Action on Policy of Insurance.
1. Where a policy of fire insurance provides that action thereon must be brought within a specified time after the loss occurs, the limitation runs from the date of the fire, although, under other provisions of the policy, the cause of action does not accrue until some time after the fire. Travelers Ins. Co. v. Cal. Ins. Co., 151.
2. A stipulation in an insurance policy issued in Dakota territory, upon property therein, which limits the time within which an action may be brought upon the policy to the period of six months from the date of loss is void. Such stipulation would be upheld at common law, but is void under the statute. § 3581, Comp. Laws. Johnson v. Ins. Co., 167.
Application for Insurance.
1. Where a written application signed by the insured declared that “the statements made by me, and answers to questions above given, are true and a warranty on my part, and are the basis upon which ask hail insurance by the Dakota Fire & Marine Insurance Company on the crops herein described,” and where the policy refers to such language as follows: “Assured’s application, of even number and date herewith, on file in the office of the company in Chamberlain, Dakota, is hereby referred to as part hereof, and is a warranty on the part of the assured, and the basis on which this insurance is written”—and where the policy further declares that any misrepresentation or false statement or concealment of facts in the application, or if the property is or becomes incumbered, shall operate to render the policy void”—held, that such statements, if not intrinsically material have been made so by the express agreement of the parties, and such agreement must prevail, under Comp. Laws, § 4163, which provides: “A policy may declare that a violation of specified provisions thereof shall avoid it; otherwise the breach of an immaterial provision does not avoid the policy.” Id.
2. Where the agent who solicits insurance, either by his direction or act, makes out an application for insurance incorrectly, notwithstanding all the facts are stated to him truthfully by the applicant, the error or fraud will not defeat the policy, and is chargeable to the insurer, and not tothe insured. Held, further, that parol evidence is admissible to show that the application was filled by the agent, and that the answers of the applicant were falsified by the agent without the applicant's knowledge. Id.
3. Where a policy of insurance, with a copy of the application indorsed thereon, was sent by the company to the insured, and was in the possession of the latter for several months before the logs occurred,
