enant to renew was not broken, so far as this record shows, until the appellee removed the wooden wall and refused to rebuild. The cause of action being on the covenant to renew, which only arose in 1903, it follows that the trial court erred in sustaining a demurrer to the petition on the ground that the cause of action was barred on the face of the pleadings. In the American and English Encyclopedia of Law (volume 19, page 201), under title "Limitations of Actions," it is said: "If the contract for a breach of which the action is brought is from its nature a continuing one-e. g., a contract to furnish support for the life of the plaintiff-a new cause of action arises with each failure of the defendant, and the plaintiff's right to enforce the contract is never barred': See, also, Coleman v. Whitney, 62 Vt. 123, 20 Atl. 322, 9 L. R. A. 517, and Beach v. Crain, 2 N. Y. 86, 49 Am. Dec. 369.

We think there is no doubt of appellant's right to have his contract specifically enforced. In Pomeroy's Equity Jurisprudence, section 1404, the rule is thus stated: "Where, however, the contract is in writing, is certain in its terms, is for a valuable consideration, is fair and just in all its provisions, and is capable of being enforced without hardship to either party, it is as much a matter of course for a court of equity to decree its specific performance as for a court of law to award a judgment of damages for its breach. This is the ordinary language of judges and text-writers": See, also, Louisville etc. R. R. Co. v. Zaring, 9 Ky. Law Rep. 107; Schmidt v. Louisville etc. R. R. Co., 101 Ky. 441, 19 Ky. Law Rep. 666, 41 355 S. W. 1015, 38 L. R. A. 809; Story's Equity Jurisprudence, sec. 728. The appellant's contract is in writing. It is certain in its terms, and upon sufficient consideration. There is no difficulty or hardship in complying with it, as is shown by the fact that it was complied with for more than fifteen years. It would be impossible, we think, to estimate in money the damages for nonperformance, and therefore the covenant to renew and repair comes up to the full measure of those contracts for personal service which the chancellor will specifically enforce.

For these reasons the judgment is reversed, for proceedings consistent herewith.

On Covenants Which Run with the Land, see the note to Geiszler v. De Graaf, 82 Am. St. Rep. 664.

The Right to Specific Performance of a contract is generally said to rest in the sound discretion of the court: Boldt v. Early, 33 Ind. App.

434, 104 Am. St. Rep. 255; Lowther Oil Co. v. Miller-Sibley Oil Co., 53 W. Va. 501, 97 Âm. St. Rep. 1027, and cases cited in the crossreference note thereto. Yet in a proper case it is as much a matter of course for a court of equity to decree the specific performance of a contract as for a court of law to award damages for its breach: Marshall v. Keoch, 227 Ill. 35, 118 Am. St. Rep. 247.

BROMLEY v. WASHINGTON LIFE INSURANCE COM

PANY.

[122 Ky. 402, 92 8. W. 17.]

LIFE INSURANCE—Lack of Insurable Interest.—Where, in accordance with a previous arrangement between the parties, one takes out a policy of insurance on his life payable to his estate, and assigns it to the other, who has no insurable interest, but who pays the insured a consideration therefor and also pays all premiums, the policy is unenforceable as a wagering contract. (p. 469.)

LIFE INSURANCE-Incontestable Clause.-A policy of life insurance which is opposed to public policy is not rendered enforceable by an incontestable clause. (p. 470.)

WITNESS—Transactions with Decedent.-The assignee of a life insurance policy, who is made a defendant by the administrator suing on the policy, is competent to testify, in behalf of the insurance company, as to transactions with the decedent. (p. 470.)

J. J. Orr, T. S. Orr, V. H. Abbott and W. S. Pryor, for the appellant.

Thomas W. Bullitt and John S. Guant, for the appellee.

403 HOBSON, C. J. In December, 1900, George Bromley made an arrangement with Otis Bates by which he was to have his life insured for one thousand dollars, and Bates was to pay the premiums and pay him fifty dollars for the policy, which was to be assigned to Bates by Bromley. He made the application for the policy in Washington Life Insurance Company, which issued the policy on January 29, 1901, the policy being payable to his estate. Bromley and Bates then came to the office of the local agent. Bates was fixing to pay the premium and Bromley asked him if he would not take another one thousand dollars on the same terms. He agreed to pay the premiums and pay him twenty-five dollars for another policy of like amount. Bromley then applied for another policy and the application was sent on, the agent retaining the policy which had come and Bates giving the agent

a check for one hundred and twenty-seven dollars and sixtyfour cents, the premium on the two policies. On February 18, 1901, Bates gave Bromley a check for seventy-five dollars for the two policies as promised. The policies were assigned by Bromley to Bates. The assignment on the policies is dated March 25, 1901. The policies were never delivered to Bromley, but remained in the hands of the insurance agent until 404 the assignment was put on them and he then delivered them to Bates. When the subsequent premiums fell due on the policies they were paid by Bates; after this Bromley died and this suit was brought by his administrator to recover on the policies. Bates was made a defendant and by his answer set up that the policies belonged to him. The insurance company pleaded the facts above stated, insisting that the policies were a wagering contract and void. On final hearing, the court dismissed the petition of the administrator and he appeals.

The proof shows clearly that Bates had no insurable interest in the life of Bromley, and while the assignment on the policies is dated March 25, 1901, the proof is clear that the policies were taken out by Bromley for the purpose of assigning them to Bates, under the arrangement that Bates was to pay him seventy-five dollars for them and pay the premiums. In other words, the arrangement was simply that Bromley was

get seventy-five dollars for having his life insured for Bates' benefit, Bates to pay the premiums on the policies. It is conceded that if the policies under this arrangement had been made payable to Bates they would have been void, as he had no insurable interest in the life of Bromley. But it is insisted that as they were made payable to Bromley's estate and were assigned by him to Bates, only the assignment is void, and that his administrator may recover of the insurance company. There would be force in this, if the policies had been delivered to Bromley and the assignment to Bates had been a subsequent and independent transaction. But the proof leaves no doubt that Bromley did not contemplate insuring his life for the benefit of his estate at any time. He contemplated 405 simply getting seventy-five dollars out of the arrangement. The policies were never intended to be delivered to Bromley. Bates was to pay the premiums and get the policies. The policies did not become effective until the first premium was paid. Bates paid the premium upon the idea that the policies were to be assigned to him, and for this reason they were left in

the hands of the insurance agent until the assignment was made, the delay in closing up the matter being due to the fact that the parties had to wait for the second policy to come. To hold such an arrangement good would be to shut our eyes to the truth and to enforce a mere form. The law does not allow one who has no insurable interest in the life of another to insure it for his benefit, for the reason that it is a mere wager and holds out a temptation to fraud, the insurer having no interest in the life of the assured and having a direct interest in his death: Basye v. Adams, 81 Ky. 368, 5 Ky. Law Rep. 91; Warnock v. Davis, 104 U. S. 775, 26 L. ed. 924; Keystone M. B. Assn. v. Norris, 115 Pa. 446, 2 Am. St. Rep. 572, 8 Atl. 638; Steinback v. Diepenbrock, 158 N. Y. 24, 70 Am. St. Rep. 424, 52 N. E. 662, 44 L. R. A. 417. In the latter case the court said: "The insured, instead of taking out a policy payable to a person having no insurable interest in his life, can take it out to himself, and at once assign it to such person. But such an attempt would not prove successful, for a policy issued and assigned under such circumstances would be none the less a wagering policy because of the form of it. The intention of the parties procuring the policy would determine its character, which the court would unhesitatingly declare in accordance with the facts, reading the 406 policy and the assignment together, as forming part of one transaction." The cases of Prudential Life Ins. Co. v. Cummins' Admr., 19 Ky. Law Rep. 1770, 44 S. W. 431, New York Life Ins. Co. v. Brown's Admr., 23 Ky. Law Rep. 2070, 66 S. W. 613, and Griffin's Admr. v. Equitable Assur. Soc., 119 Ky. 856, 27 Ky. Law Rep. 313, 84 S. W. 1164, may be distinguished from this case. In the first case, there was no assignment of the policy to the person who paid the premiums, and the court simply held that the fact that a stranger paid the premiums did not invalidate the policy. In the second case, the assignee testified that he had no interest in the policy until it was assigned to him subsequent to the delivery. In the last case the insurance company had paid the money to the persons to whom the policies were payable and after this was sued by the administrator of the assured. The court in deciding that the insurance company was not liable used this language: "The transaction as to each policy was clearly a speculation upon the hazard of human life, and consequently a gambling scheme, pure and simple, which rendered the policies void, because against public policy; and, if void, no cause of action against appellee

exists in favor of Griffin's administrator for the recovery of the proceeds."

407

It is also insisted for the plaintiff that as the policies contain a clause to the effect that they are incontestible after one year, the company cannot rely upon this defense. But the incontestable clause is no less a part of the contract than any other provision of it. If the contract is against public policy, the court will not lend its aid to its enforcement. The defense need not be pleaded. If at any time it appears in the process of the action that the contract sued upon is one which the law forbids, the court will refuse relief. The parties to an illegal contract cannot by stipulating that it shall be incontestable, tie the hands of the court and compel it to enforce contracts which are illegal and void. If this were allowed, then the law might be evaded in all cases and the aid of the court might be secured in aid of its infraction. In Hall v. Coppell, 7 Wall. 542, 19 L. ed. 244, the United States supreme court said: "The defense is allowed, not for the sake of the defendant, but of the law itself. The principle is indispensable to the purity of its administration. It will not enforce what it has forbidden and denounced. The maxim, 'Ex dolo malo non oritur actio,' is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be tainted with the vice of the original contract, and void for the same reasons. Wherever the contamination reaches, it destroys. The principle to be extracted from all the cases is, that the law will not lend its support to a claim founded upon its violation."

Lastly, it is insisted that Bates is not a competent witness. He cannot testify for himself as to any transaction had with the decedent, but he may testify for the insurance company. The administrator by making Bates a defendant to the action cannot deprive the insurance company of the benefit of his 408 testimony. As between the insurance company and the administrator, Bates does not testify for himself: Dovey v. Lam, 117 Ky. 19, 25 Ky. Law Rep. 1157, 77 S. W. 383. Judgment affirmed.