Layton

The plaintiff, as beneficiary, brought this action upon a policy of insurance in the sum of $2,000, issued by the defendant on the life of Archie B. Layton, her husband. Judgment was rendered in her favor, from which the defendant Insurance Company appeals, relying’ upon the two defenses interposed in the court below and reasserted here: First, that the insured was not in good health at the time the first premium was paid and the policy of insurance delivered, and never again was in good health during his lifetime; and, second, that it is entitled to rescind, and has rescinded, the contract of insurance because of written misrepresentations made by the insured in his application, which became a part of the policy.

In response to the issues tendered by these defenses, the lower court found that at the time of the delivery of the policy and payment of the first premium, the insured was in good health, and was not at any time prior or subsequent thereto suffering from, or afflicted with, carcinoma mediastinum (a species of cancer), or any form of cancer whatever, from which appellant contends the insured subsequently died, and that he was not at the time of the payment of the first…