ance company must do in order to make a defense because of fraud, that requirement being a part of the law, it becomes the public policy of the State. The legislature did not say that the company should not defend for fraud perpetrated in obtaining insurance, but did say that, if the company wishes to make this defense, they must attach the application containing the alleged fraudulent statement to the policy. If the company desires to do business in this State, it must do it subject to such valid and reasonable regulations as the State may determine to prescribe.

The failure of the company to attach the application to the policy must be held as an expression on the part of the company of its purpose to waive or relinquish its right to have the application considered as a part of the contract of insurance. Statutes making similar requirements have been passed in other States, and the following is found in 25 Cyc. p. 746:

"It is provided by statute in several States that, unless a copy of the application be incorporated into or attached to the policy, the company cannot rely upon, or take advantage of, any statements, conditions, or warranties contained in the application. Under such statutory provisions, the application, a copy of which has not been attached to the policy as required, cannot be pleaded or proved in behalf of the company; but, as against the company, the provisions of the application may be pleaded and proved, as the company will not be allowed to take advantage of its own wrong in failing to attach the copy. If the copy attached is not a substantially correct and complete copy of the original application, the statute is not complied with, and the application cannot be relied on by the company.' Cases cited in note.

The supreme court of Iowa, in passing on a similar statute in the case of Rauen v. Insurance Co., 129 Iowa, 732 (106 N. W. 201, 202), said:

"If we say that the company may disregard this statute and issue its policy without attaching a copy of the application, and still have the right to assert and rely upon such application as a part of the contract, the legislative enactment is reduced to a mere idle form of words, hav

ing not the least effect upon the rights of parties as they existed before it was passed. It is the duty of the court, whenever it can be consistently done, to so construe a statute as to give it force and effect, and in such manner as to best accomplish the evident intent of the legislature.

* ** *

"The same objection is also fatal to the plea of false and fraudulent representations made to the applicant's medical examiner, and the demurrer thereto was also properly sustained. The medical examination was part and parcel of the application (Cooley's Briefs on the Law of Insurance, vol. 1, p. 683d), and no copy thereof was attached to the policy; and, for the reasons already stated, defendant was not entitled to avail itself of any defense on account of matters contained therein.

* *

"It may be admitted, for the purposes of this case, that the fraud pleaded was sufficient to avoid the policy if the appellant had put itself in position to make use of the defense; but, failing to attach a copy of the application to the policy, it waived its right to take issue upon the application or any part of it.

*

*

"In no State where any such statute is found, whether accompanied or unaccompanied by an express provision excluding proof of false representation of warranty not contained in or attached to the policy, have we been able to find a decision or suggestion by any court that a company, failing to attach or embody the application in its policy when required by statute, may make such omitted matter a basis of defense to an action on the contract. On the other hand, in every State where occasion has arisen to consider it, the holding has been to the contrary. Insurance Co. v. Bank, 48 Kan. 393 (29 Pac. 576); Insurance Co. v. Bank, 48 Kan. 397 (29 Pac. 578); National Life Ass'n v. Berkeley, 97 Va. 571 (34 S. E. 469).

As we have already suggested, it is within the power of the legislature not only to impose conditions upon the right of insurance corporations to do business in the State, but to regulate the form and substance of all insurance contracts, and prescribe what conditions may or may not be imposed upon the insured. When, therefore, it is enacted that all representations and warranties upon which the company proposes to rely or insist shall be attached to or embodied in the policy, the State is not exceeding its recognized authority, and the company, failing to comply with the provision, must be conclusively held to have elect

ed to rely upon the contract as contained in such policy, without reference to any representation or warranty not contained in that instrument. The denial of the right to plead or prove such extrinsic matter is not in any proper sense a penalty' for failing to comply with the statute, for the company has a perfect right to waive or forego any advantage it could derive from an embodiment of the application in the policy. It issues its policy with the statute in view; and, failing to do that which, by the terms of the statute, is necessary to allow the application to have 'any bearing' on the rights of the parties, the contract stands as if the omitted writings never existed."

See, also, Considine v. Insurance Co., 165 Mass. 462 (43 N. E. 201); Nugent v. Life Association, 172 Mass. 278 (52 N. E. 440); Reagan v. Insurance Co., 207 Mass. 79 (92 N. E. 1025).

It is strongly urged that this construction will open the door to all kinds of fraud. However, the company can readily avoid this possibility by annexing the application to its policy, in accordance with the plain intent of the statute.

Even if, in the opinion of the court, this statute might be considered unwise from the standpoint of the public interests, nevertheless, unless it conflicts with the Constitution of the State or of the United States, the legislative determination is final.

The judge of the court below arrived at the proper conclusion, and the order he made is affirmed, with costs.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ., concurred.

SMITH v. MATHIS.

1. FRAUDS, STATUTE OF-EVIDENCE-SPECIFIC PERFORMANCE-PAROL EVIDENCE- PRELIMINARY CONDITION - VENDOR AND PURCHASER.

In a suit for specific enforcement of a land contract, testimony of the vendor that it was orally agreed, at the time the memorandum or agreement was signed, that it should be considered abrogated unless the vendor's title could be cleared up within two months, was inadmissible to vary or add to the writing that contained no such conditional clause: under the statute of frauds (3 Comp. Laws, § 9511, 4 How. Stat. [2d Ed.] § 11395), the memorandum was conclusive if it contained the requisites of a valid contract.

2. SAME-EXECUTION OF CONTRACT-LAND CONTRACT-MUTUALITY. Having accepted the memorandum signed by the vendor, the purchaser was bound by the instrument even if he did not, as claimed by the vendor, sign the writing until a later date. 3. SPECIFIC ENFORCEMENT-SUBSEQUENT INCUMBRANCE - MORTGAGES-DECREE.

As to a subsequent mortgage of premises that defendant had bound herself to convey by a sufficient memorandum of sale, complainant, who is entitled to a decree of specific performance, may be allowed, by the final order, to pay the mortgage debt, receiving credit for the amount so required upon the agreed purchase price.

Appeal from Wayne; Mandell, J. Submitted January 13, 1913. (Docket No. 36.) Decided March 20, 1913.

Bill by Isaac Smith against Rose Mathis and Edward Mathis for specific performance of a contract for the sale of land. From a decree for defendants, complainant appeals. Reversed.

Sloman & Sloman, for complainant.

Edward Pokorny (Bernard B. Selling, of counsel), for defendant Rose Mathis.

STONE, J. Complainant filed his bill of complaint pray

ing for the specific performance of an agreement made between him and the defendant Rose Mathis, the memorandum in writing of which is as follows:

"$50.00.

"Received from Isaac Smith, of Detroit, Michigan, the sum of $50.00 to apply on purchase price of $9,500.00 for the following piece of real estate in Detroit, Michigan: the southwest corner of Alfred and Hastings street, same extending 95 feet on Hastings street, and 53 feet on Alfred St., together with buildings at present on same. I agree at once to furnish said Smith with a Burton or Union Trust abstract, brought down to date, and showing perfect title in myself. Immediately after furnishing said abstract and its being found perfect by said Smith's attorneys I agree to enter into the usual Burton form land contract with said Smith, he to pay $1,950.00 more at time of execution of said contract, and the balance in payments each quarter of $175.00, interest at rate of 6% per annum, being also payable quarterly and to be included in said $175.00 payments, and to be deducted therefrom. Should said title not be satisfactory to said Smith's attorneys, I agree at once to return to him the $50.00 deposit. The entire principal still due at end of ten years shall be payable at that time.

her

"MRS. ROSE X MATHIS. mark

"Sept. 26, 1910.

"Witnesses:

"BENJAMIN FRUMIN.

"L. SIEGEL.

"I hereby agree to all above terms and conditions. "ISAAC SMITH."

Complainant by his bill further represented that he had always been ready and willing to comply with the terms of said agreement on his part to be performed; that at the time of the signing of said agreement he paid $50 in accordance with its terms, and thereupon it became the duty of said defendant Rose Mathis to have prepared and brought down to date either a Burton or Union Trust abstract showing title in herself; that complainant had frequently requested her to prepare such abstract, so that he