Denied September 9, 1913.
On Petition for Rehearing.
(134 Pac. 1033.)
Mr. Justice Ramseydelivered the opinion of the court.
6. The respondents petition for a rehearing, and claim that the appellant waived the following condition, written in the policy sued on (Laws 1911, pp. 279, 280) : “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be 'void * * if the interest.of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple,” etc. The meaning of this provision is clear. It signifies that, where one insures a building situated on land which the insured does not own in fee simple, the policy is void, unless an agreement showing what the insured’s interest is is indorsed on the policy or added thereto, and hence, according to said condition, the policy is void.
The respondents attempt to escape the effect of said condition by alleging that the company’s agent who obtained the insurance knew that the plaintiffs did not own or claim to own the fee-simple title to the land on which the house stood, and they claim, also, that the plaintiff Oatman told the agent that the property belonged to an estate, and that he was agent for the *397estate, and that the agent told Oatman that he was the proper person to take out the policy, etc. There was no fraud on the part of the respondents in taking out the policy, and they made no intentional misrepresentation in order to obtain it. Mr. Oatman, however, did claim that he and his eopiaintiff owned a dower right in the land. In this he was partly in error. Mr. Lane and two other persons owned the dower right, but Mr. Oatman had no interest therein. His wife had an interest, but Mr. Oatman had none. The testimony of Mr. Oatman shows that some of the persons who owned the house and land were minors. These minors evidently could not have appointed him agent to look after their interests. He did not claim to be their guardian.
Both the statute and the policy declare that the policy shall be void if the insured does not own the land in fee simple, unless an agreement to that effect is indorsed on the policy or added thereto. It does not state or mean that it shall not be void if the company or its agent knew, when the policy was issued, that the insured did not own the property in fee. The policy is declared to be void in the absence of an agreement, either in the policy or indorsed on it, showing what the insured’s interest is, if it is less than the fee, and, as this condition states one limitation thereon, all others are excluded; the old maxim: “ Expressio unius est exclusio alterius,” being applicable. The statute (Laws 1911, p. 279) requires every insurance company to write into its policies the condition stated, supra, and other conditions set forth in the statute, and declares that such conditions “shall form a portion of the contract between the insurer and assured.”
According to the policy sued on and the statute referred to, said condition is a part of the contract *398between the parties, and the company and the beneficiaries are bound by this provision. Prior to 1907 Oregon had no law prescribing what policies of insurance should contain, and this court held, in several cases, that companies waived some conditions in policies by acts inconsistent with them.
But this uniform policy act was enacted for the purpose of settling various questions in regard to life insurance, on which the decisions of the courts of the different states were in hopeless conflict, and we believe that two objects in the enactment of this law were to create uniformity in the policies to be issued and to make the conditions set forth in the law and incorporated into the policies binding contracts on the companies and on the insured. It would be unreasonable to believe that no change was effected in the law of insurance by the enactment of this statute. The state of "Wisconsin enacted a uniform policy law like the one in this state, and this law was construed by the Supreme Court of that state in Bourgeois v. Northwestern Nat. Ins. Co., 86 Wis. 606 (57 N. W. 347). The Wisconsin law contained this provision (the same as the Oregon law): “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy,” etc. In the case referred to the company issued a policy, and; at the time it was issued, the agent of the defendant company was informed that the insured would soon thereafter procure additional insurance on the property in another ■ company, and by parol gave Ms assent thereto. The only question before that court was whether the agent could waive by parol one of the printed conditions of *399the policy. Justice "Winslow, delivering the opinion of the court, said :
“In 1891 an act was passed by our legislature providing for the uniform policy of insurance to be issued in this state, known as the ‘Standard Insurance Policy. ’ This act went into effect September 1,1891. The policy in suit here was the standard policy provided for by that act, was issued December 16, 1891, and consequently must be governed by the provisions of that act. * * It provides in clear and distinct terms that other conditions may be printed or written upon or attached to the policy, but that they shall not be inconsistent with, nor a waiver of, any of the provisions or conditions of the standard policy. In thus providing that other conditions may be incorporated in the policy by writing or printing, other methods are plainly excluded under familiar legal principles. The intent plainly was and is that, so far as the conditions and provisions of the standard policy go, they shall govern, and that they shall not be omitted, changed, or waived in any manner. Other provisions, not conflicting, we think, may be added in writing, or printed; but the conditions of the standard policy itself must remain unimpaired. The condition broken here was one of the conditions of the standard policy. It is claimed that it was waived, not in printing or writing, but by mere word of mouth. Can this be successfully maintained? If so, then this part of the law is at once emasculated. If this be so, then the agent may do, by the merest casual word of mouth, that which neither he nor the company could do by the most formal written stipulation under seal. Such a result cannot be tolerated. The law could be scarcely more explicit in its terms than it is. To our minds, it is clear that since the enactment of this law, at least, the local agent cannot, either in writing or by parol, at the time the insurance is effected, change or waive that provision of the standard policy prohibiting future additional insurance.”
*400The state of New York has the standard policy law, and, in Moore v. Insurance Co., 141 N. Y. 219 (36 N. E. 191), the court held that the standard policy act was passed to remedy existing evils and to protect insurance companies from the perils of alleged parol waivers by their local agents. The Supreme Court of Massachusetts, in Parker v. Insurance Co., 162 Mass. 479 (39 N. E. 179), held that an agent cannot change any of the provisions of the standard policy, adopted by law, except by written indorsement, and then only in reference to such matters as the law, by its terms, provides for. Volume 13. of the American and English Encyclopedia of Law, second edition, page 223, states the rule as to waiver of conditions under the standard policy thus: “The conditions of the standard policy cannot be waived except as provided therein and written or printed on the face of the policy.”
In this case the condition stated in the policy is that it shall be void if the insured did not own the sole interest in fee simple of the lots on which the insured house stood, unless otherwise provided by agreement indorsed on the policy or added thereto. As the insured did not own the sole or fee-simple interest in the land, the policy is void, because an agreement to the contrary was not indorsed on the policy or added thereto. An interest less than the sole or fee-simple interest can be insured, provided a contract to that effect is indorsed on the policy or added to it. No such contract was made or indorsed on or added to the policy in this case.
7. The rules relevant to questions of waiver prior to the enactment of the standard policy law do not apply now. So far as this statute is inconsistent with the common law, it supersedes it.
8. It is the duty of the courts to give effect to the statute, and not to nullify its requirements. This stat*401ute not only imposes a penalty on insurance companies for noncompliance with its terms, but it declares in express terms that if the condition quoted, supra, is not complied with, the policy -is void.
"We consider the case of Finlon v. National Union Fire Ins. Co., 65 Or. 493 (132 Pac. 713), in point, and we follow it. In that case the insured claimed to own the property in question, but really owned only an equity in it. The court held the policy to be void. In this case Oatman and Lane claimed to own a dower right in the land obtained from Mrs. Dement; but Oat-man owned no interest whatever therein, and Lane owned only an undivided one-third of the right of dower therein, and this unassigned dower right was a chose in action only. The policy was issued to Oatman and Lane, and contained nothing to indicate that they did not own the sole fee-simple title to the land on which the house was situated. The policy, so far as it attempted to insure the house, is void.
The standard policy law contains many provisions, but this decision applies to the facts of this case only.
The petition for a rehearing is denied.
Reversed : Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Burnett concur.