Carter v. Insurance Co. whether it so contributed in any case shall be a question for the jury." Plaintiff contends, and the trial court so held, that this section applies not only to policies procured through misrepresentations made by the applicant for insurance, but as well to those procured by one simulating the applicant. This is a rather startling proposition, and if the statute be so construed, its effect will be to render an insurance contract immune from a plea of invalidity for fraud, although obtained through false pretenses made by another than the insured, and without his knowledge. No amplification of words is necessary to the conclusion that such a construction, instead of lessening the possibility of fraud, as was evidently intended by the enactment of the section, will tend rather to promote the same. Aside, however, from this general conclusion, amply sustained by the rules of interpretation, a consideration of the nature of life insurance contracts and the conditions under which they are uniformly executed, will aid in determining the meaning, purpose, and consequent limitation of the section. An examination of the applicant is a condition precedent to the issuance of a life insurance policy. From its terms, it is evident that this section was intended to be limited to the facts elicited in this examination in its providing that the misrepresentations referred to shall be those "made in obtaining or securing" the policy. The limitation is express, and under the rule embodied in the maxim of expressio unius, etc., other misrepresentations outside of or independent of such examination and which may affect the validity of the policy are excluded. Viewed from another vantage the propriety of the restricted application of the section becomes apparent. It is in the nature of a limitation. As such, it can have no operative force unless there exists a policy otherwise valid upon which it can operate. An invalid policy has no legal existence and can form no basis for the operation of a limitation. As applied to the case at bar, it fol Carter v. Insurance Co. lows that before the section can be invoked to limit the effect of whatever misrepresentations may be pleaded as a defense to an action on the policy, the latter must be conceded to be otherwise valid. The result of this concession leaves nothing which can appropriately be interposed by the plaintiff in invoking the section, except such misrepresentations as may be charged to have been made by the insured in obtaining the policy; these, as we have shown, must be such as were made by him in his examination for the same. Furthermore, the words employed in defining the materiality of the misrepresentations referred to in the section, are, in themselves, sufficiently definite to enable the character of such misrepresentations to be determined. The section prescribes that only such misrepresentations are material as contribute to the death of the insured; one which so contributes must be such an one, which, if it had not been made, the policy would not have been issued. To illustrate, the applicant answers falsely in regard to never having had a certain disease and that he is then in sound health. He dies soon thereafter of this disease. If he had answered truly, the issuance of the policy would have been precluded. False answers to any other material inquiries would have had a like effect in that they would have rendered the applicant an uninsurable risk. This but tends to emphasize the fact that the right of the insured to the policy is determined by his examination, and to such mispresentations, therefore, as are made therein, the section must necessarily have reference. What is meant by the section, in other words, is that no false statement made in the application for the policy shall avoid the same unless such statement concealed a condition which contributed to the death of the insured. Otherwise construed, the validity of the policy in other respects is left out of consideration. No limit, except as indicated in defining their materiality, is to be placed upon any representations made in securing the policy; and, although they may involve the grossest Carter v. Insurance Co. and most despicable fraud, viz., the impersonation of another for the purpose of profiting by his death, and be independent and outside of the purported examination of the insured, the insurer is to be precluded from interposing them in defense to an action on the policy, unless it be alleged that they contributed to the death of the insured. Such a construction is not in accord with a reasonable interpretation of the words employed. Its effect in the administration of the law of insurance under our statute would be to foster fraud. It outrages a righteous sense of justice and is, therefore, foreign to the intention of the Legislature in the enactment of the section. Given the restricted construction we have indicated, however, it serves a useful and practical purpose in placing a reasonable limit upon the effect of misrepresentations the interposition of which has been deferred until the insured is dead. The construction of the section under the facts in issue is one of first impression in this State. Our reports are replete with cases discussing and determining the effect of various forms of misrepresentations in obtaining policies, but these are found to be limited to misrepresentations made by the applicants themselves and not by others. The Supreme Court of Kentucky, in ruling upon a case (So. States Mutual Life Ins. Co. v. Herlihy, 138 Ky. 359, 128 S. W. 91) involving the defense made here of false personation of the insured in procuring the policy, says, in effect, that "although the company could not defeat a recovery upon the ground that the insured in the application made false and material answers, this did not deprive it of the right to show that the insured was not the person who made application for the insurance and who was, in fact examined; or that the insurance was procured as a part of a conspiracy between the insured and others who had no insurable interest in her life for the purpose of practicing a fraud upon the company. These defenses were based upon facts existing independent of the matter Carter v. Insurance Co. contained in the application. The failure to comply with the statute in pleading the application, denied the company the right to resist the payment of the policies. upon defenses arising out of the application. It did not prevent it from showing that in matters outside of the application the policies had been avoided. If a person other than the insured made the application and was examined, there was, of course, no contract between the company and the insured. And so, if the insurance was obtained as a part of a conspiracy entered into by persons having no insurable interest in the life of the insured, the contract was illegal, against public policy and non-enforceable. These two defenses the company made, and the lower court properly permitted wide latitude in the examination of witnesses whose evidence tended to support them." This case is apposite here because the rule announced therein, expressed in general terms, is exceedingly elementary and applicable alike to all obligations. It is that a contract conceived in fraud has no legal existence and that this fact may be shown to defeat an action brought thereon (Pac. Mut. Life Ins. Co. v. Glaser, 245 Mo. 1. c. 390). Thus, it appears, aside from the inapplicability of Section 6937, supra, that the defense sought to be made by the defendant in its special answer and cross-bill, that no contract had ever been made between it and the insured, should have been permitted. The trial court therefore erred in sustaining the plaintiff's demurrer. General II. The defense was based upon the theory that the contract was illegal in that no real agreement had ever been entered into by the parties. If this fact be established, then the contention of the defendDenial. ant may be sustained upon a broader principle than the determination of its rights, viz., that of public policy. But is this defense available under a general denial? Under our system of pleading a general denial raises an issue as to each of the material allegations of the petition. [Sells v. Railroad, 266 Mo. Carter v. Insurance Co. 1. c. 177; Kelerher v. Henderson, 203 Mo. 1. c. 511.] In a certain class of cases, usually involving the right to the possession of property, and which do not distinguish between a general denial and the general issue, it is held that the defendant may prove any fact which goes to show that the plaintiff never had any cause of action. A compilation of this class of cases is to be found in Patton v. Fox, 169 Mo. 1. c. 106. It was held in Sprague v. Rooney, 104 Mo. 1. c. 360, that the effect of a general denial is to deny the legality of a contract sought to be enforced, and to authorize the admission of evidence to show that the same, although on its face valid, was intended to accomplish an illegal object. This case was expressly overruled in McDearmott v. Sedgwick, 140 Mo. 1. c. 182, in which the following ruling was announced: Where there is nothing on the face of the petition to indicate other than a valid contract, if it is to be invalidated by some extrinsic matter, such matter must be pleaded. This ruling is in harmony with the current of anthority, not only in the earlier, but the later cases as well. [School Dist. v. Sheidley, 138 Mo. 1. c. 690; Bell v. Warehouse Co., 205 Mo. 1. c. 493; Shohoney v. Railroad, 231 Mo. 1. c. 147.] Nothing appearing on the face of the petition to disclose the fraud on which the contract was founded, and the same being susceptible of formal proof without a showing as to its legality, the defense of its legal non-existence was not available under a general denial. III. The joinder of the general denial, separately stated, with that of the special answer and cross-bill is expressly authorized by statute [Sec. 1807, Defenses. R. S. 1909; State ex rel. v. Rogers, 79 Mo. 283; Cohn v. Lehman, 93 Mo. 574.] Special The special answer and cross-bill alleged with sufficient certainty the grounds of the defense and the reasons for the affirmative relief prayed for. The latter consisted in a prayer for a decree canceling the |