Syllabus. [113 S. C. We find: "The general rule that no action can be 2 based on an illegal contract is, therefore, not open to question." The plaintiff claims to be a licensee, and, therefore, under contract. The Supreme Court of the United States refused to Illinois Central R. R. Co. allow a recovery in a similar case. v. Messina, 240 U. S. 395, 36 Sup. Ct. 368, 60 L. Ed. 709. Neither the conductor, the engineer, nor the defendant itself can make a contract in violation of law, or waive the requirements of the law. The Courts are jealous to see that no discrimination is made directly or indirectly. The judgment is reversed. 10284 COLE v. JEFFERSON STANDARD LIFE INS. CO. (100 S. E. 893.) INSURANCE-DISTRIBUTION OF PROFITS TO PREVENT FORFEITURE; POLICY.In an action on a life insurance policy issued March 1, 1911, where it appeared insured died May 24, 1918, and premium due March 1, 1918, was not paid, exclusion of evidence as to the amount of profits earned by the policy at the end of 5 years, on the ground that the policy provided for a distribution of profits only at the end of 20 years, was improper, the Insurance Commission having, before the policy was issued, forbidden a distribution period of more than 5 years; for, whatever the expressed language of the policy might be, the law would read it to provide for a 5-year and not 20-year distribution period. Before PRINCE, J., Anderson, Fall term, 1918. Reversed and new triel ordered. Action by Mollie E. Cole, administratrix of the estate of William H. Cole, against the Jefferson Standard Life Insurance Company. Judgment for defendant on a directed verdict, and plaintiff appeals. Rep.] April Term, 1919. Messrs. Kurtz P. Smith and A. H. Dagnall, for appellant, cite: As to the authority of the Insurance Commissioner: Code of 1912, vol. I, sec. 2669; 84 S. C. 256; 130 Minn. 32; 164 N. W. 495; L. R. A. 1918f, 545; 38 Minn. 281; 37 N. W. 782; 6 L. Ed. 253; 77 Minn. 483; 46 L. R. A. 442; 100 Minn. 445; 10 L. R. A. (N. S.) 250; 147 Wis. 327; 37 L. R. A. (N. S.) 489; 204 U. S. 364; 51 L. Ed. 523; 136 Wis. 146; 17 L. R. A. (N. S.) 821; 143 U. S. 649; 36 L. Ed. 294; 67 Minn. 279; 69 N. W. 1094; 254 U. S. 355; 62 L. Ed. 349; 199 Mass. 190; 127 A. S. R. 485; 42 S. D. 291. As to estoppel: 181 U. S. 74; 45 L. Ed. 758. As to duty of defendant to apply dividends to payment of premiums: (Miss.) 78 So. 362; L. R. A. 1918d, 1010; note L. R. A. 1918d, 1914; 23 L. R. A. (N. S.) 304 (note by annotator); 91 Wash. 324; L. R. A. 1918a, 1240; 78 S. C. 77. As to insured being entitled to extended insurance: 82 S. E. (Ga.) 825; 121 Minn. 395; 141 N. W. 518; 34 Ann. Cas. 163; 45 Conn. 480; 29 Am. Rep. 693; 19 Ind. App. 49; 49 N. E. 44; 65 Am. St. Rep. 392; 126 Fed. 82; 115 Ky. 100; 103 A. S. R. 301; 78 S. E. (Va.) 639; 246 U. S. 365; 62 L. Ed. 773; 173 Mo. 329; 72 S. W. 935; 82 S. E. 823; Bouvier's L. Dict. (defining foreclosure); 115 Va. 257; 78 S. E. 639, 640; 9 Misc. Rep. 6; 29 N. Y. Supp. 44; 12 Misc. Rep. 127; 33 N. Y. Sup. 67; 91 S. E. (Ga.) 429. As to forfeitures: 103 S. C. 288; 25 Cyc. 872; 16 A. & E. Enc. L., 2d Ed. 941; 29 A. & E. Enc. L., 2d Ed. 1097; 16 A. & E. Enc., 2d Ed. 934; 16 A. E. Enc. L., 2d Ed. 938; 54 S. C. 603; 13 S. E. Rep. 236. Messrs. Brooks, Sapp & Kelly, Lee & Moise and Bonham, Watkins & Allen, for respondent. Messrs. Brooks, Sapp & Kelly and Lee & Moise cite: As to authority of the Insurance Commissioner: 13 L. R. A. (N. S.) 1046; Vance on Insurance, pp. 86, 87; 63 S. E. 304. As to dividends—forfeiture-application: 101 C. C. A. 56; 76 S. C. 535; L. R. A. 1918a, p. 904; 68 S. E. 1035; 38 S. W. 116; 1st Cooley on Insurance 123; 109 N. Y. 421; 117 N. Y. 459; 130 N. W. (Neb.) 434; L. R. A. 1918a, pp. 904-906. As to waiver: 90 S. C. 1; 65 S. C., p. 1. October 21, 1919. The opinion of the Court was delivered by MR. JUSTICE FRASER. This is an action on a policy of insurance on the life of William H. Cole, issued by the Greensborough Life Insurance Company on March 1, 1911, and assumed by the Jefferson Standard Life Insurance Company on September 20, 1912. William H. Cole died on May 24, 1918. The deceased had borrowed on his policy the sum of $309. The premium due on March 1, 1918, of $91.92 was not paid. The policy provided for a distribution of the profits only at the end of 20 years. The plaintiff offered to prove the profits at the end of 5 years. The evidence was excluded by the Court. The failure of evidence to prove that there was sufficient funds in the hands of the company was, of course, manifest, and the presiding Judge directed a verdict for the defendant. From the judgment entered upon this verdict, the plaintiff appealed. Before this policy was issued, the Insurance Commission of South Carolina had issued an order forbidding a distribution period of more than 5 years. This policy violated that order making its distribution period 20 years, instead of 5 years. On the trial of the cause, the plaintiff offered to prove the amount of profits earned by this policy. The defendant objected on the ground that the policy provided for a distribution period at the end of 20 years and that no profits could be claimed before the end of 20 years. This objection was sustained, and from this ruling the plaintiff appealed. Rep.] April Term, 1919. 1. This ground of appeal must be sustained. The insurance commissioner required as a condition precedent to the issuance of a license, that no policies should be issued with a longer distribution period than 5 years. T. this the Greensborough Life Insurance Company promised compliance and accepted its license. The State is a party. and a controlling party, to all contracts. Whatever the expressed language of the policy may be, the law reads that contract to provide for a 5-year and not a 20-year distribu tion period. The testimony was competent, and its exclu sion was error. 2. There was evidence from which waiver might be inferred, and that question should have been submitted to the jury. The judgment is reversed, and a new trial ordered. 19285 FARMERS BANK & TRUST CO v. FUDGE ET AL. (100 S. E. 628.) 1. APPEAL AND ERROR-REVIEW OF ACADEMIC QUESTIONS.-The question whether under Civ. Code 1912, sec. 1352, a mortgage was a duly recorded instrument in view of claimed disqualification of witnesses making and taking affidavit for probate was academic, where judgments, the basis of claims in opposition to the mortgage, were recovered upon debts contracted prior to the mortgage. 2. DEEDS MORTGAGES-ATTESTATION.-Deeds and mortgages are required to be executed with the same formalities, and both must comply with Civ. Code 1912, sec. 3453, as to attestation. 3. MORTGAGES-COMPETENCY OF ATTESTING WITNESSES.-Under Code Civ. Proc. 1912, secs. 437, 438, and in view of the Act September 19, 1866 (13 St. at Large, p. 377), stockholders and officers of a bank which took a mortgage are competent witnesses to its execution within the requirements of Civ. Code 1912, sec. 3453, providing for the execution of deeds. 4. MORTGAGES-GOOD BETWEEN PARTIES THOUGH ATTESTATION INVALID.— A mortgage attested by witnesses who are incompetent stands on the same footing as if it were without witnesses, and is good between the parties. Syllabus. [113 S. C. 5. MORTGAGES-RIGHT TO ACCELERATE MATURITY PASSES TO ASSIGNEES.— Where a mortgage provided that in event of the mortgagor's failure to pay interest at the stipulated dates the mortgagee should have the option to declare the principal and interest due, such right passed to an assignee of the mortgage. 6. MORTGAGES-NOTICE OF ELECTION TO DECLARE SAME DUE ON DEFAULT IN INTEREST.-Where a mortgage gave an option to declare the principal and interest due on default in payment of interest, it is not necessary for the mortgagee to give notice, other than the commencement of an action for the interest and principal, of an election to exercise the option to demand payment of principal and interest. 7. MORTGAGES-EFFECT OF ELECTION TO DECLARE PRINCIPAL AND INTEREST DUE.-Where a mortgagee exercised an option to declare both the interest and principal due on nonpayment of interest, held that the aggregate of the principal and interest then due became an interestbearing fund, bearing interest at the rate of 7 per cent. only, and not at the rate of 8 per cent., which was the rate fixed by the mortgage. Before MEMMINGER, J., Lancaster, Fall term. and affirmed. Modified Action by the Farmers Bank & Trust Company against R. H. Fudge and others and the Lancaster Mercantile Company and another. From a judgment for plaintiff, the last named defendants appeal. This action was commenced on the 20th of October, 1917, for the foreclosure of four mortgages on certain lands. The complaint contains two causes of action. In the first, it is alleged: That the defendant, R. H. Fudge, made his promissory note, of which the following is a copy: "$10,300. Rock Hill, S. C., January 3, 1910. On the date hereinafter stipulated, I promise to pay to the order of Sep Massey the sum of ten thousand three hundred dollars, due and payable nine years after date, together with interest from date at the rate of eight per cent. per annum, payable On January 1st of each succeeding year, provided that failure to meet the interest at the interest period above named shall make the full amount of interest and principal become due and payable forthwith at the option of the mortgagee, negotiable and payable at the National Union Bank, of Rock |