furnished defendant company in the manner to avoid the bond on its plea that the same provided for by the terms of the bond. was procured by misrepresentations of material facts which constituted a legal fraud, appellant has cited Johnson v. American National Life Ins. Co., 134 Ga. 800, 68 S. E. 731, Southern Life Ins. Co. v. Hill, 8 Ga. App. 857, 70 S. E. 186, and Southern Life Ins. Co. v. Logan, 9 Ga. App. 503, 71 S. E. 742, all by the Supreme Court of Georgia; Bowyer v. Continental Casualty Co., 72 W. Va. 333, 78 S. E. 1000, by the Supreme Court of West Virginia; Coleman v. Retail Lumbermen's Ins. Association, 77 Minn. 31, 79 N. W. 588, by the Supreme Court of Minnesota; and Carrigan v. Mass. Benefit Ass'n (C. C.) We shall quote from Johnson "It is further agreed that sufficient facts ex-rial ist, as alleged by defendant, to constitute a complete avoidance of liability on the fidelity bond; provided the 'employer's statement' heretofore referred to is admitted in evidence and considered by the court, but not otherwise, but C. H. Bencini personally did not know the answers in said statement were untrue at the time he signed the same, but was legally chargeable with such knowledge. "It is further agreed that the plaintiff, waiving all other objections to its admissibility, objects to the admission and consideration by the court of the 'employer's statement' upon the sole ground, to wit: First, that the fidelity bond hereto attached and sued on in this case, was not accompanied by said 'employer's statement,' or any written, photographic, or printed copy 26 Fed. 230. thereof, nor was said fidelity bond accompanied by the application hereto attached, nor any V. Amer. Nat. Life Ins. Co., the case first written, photographic, or printed copy thereof; cited, in order to show the statute, there and, second, that the fidelity bond was not ac- construed and the reasoning advanced: companied by any statement of any kind or character but was delivered just as it appears effect of the act of August 17, 1906 (Acts 1906, "The principal question involved is as to the hereto attached and made a part hereof. "It is further agreed that the defendant of- P. 107). It declares that: From and after the fers in evidence in connection with other facts passage of this act all life and fire insurance agreed to exist the said 'employer's statement,' policies issued upon the life or property of perand urges its admission and consideration by panies organized under the laws of this state sons within this state, whether issued by com"It is further agreed that the 'employer's or by foreign companies doing business in this statement' is material and admissible in evidence state, which contain any reference to the apunless excluded on the grounds stated in para- laws, or other rules of the company, either as plication for insurance, or the constitution, bygraph six hereof. In the event it should be held that plaintiff's objections to the introduc-forming part of the policy or contract between tion of the employer's statement' are well taken, said contract, shall contain or have attached the parties thereto, or having any bearing on then plaintiff's admissions as above recited are to said policy a correct copy of said application not to be considered for any purpose, but in the event plaintiff's objections are not well signed by the applicant, and of the by-laws retaken then said agreements and admissions panying the policy, no such constitution or byferred to; and unless so attached and accomherein contained shall be considered for all pur- laws shall be received in evidence either as part "It is further agreed that nothing herein shall of the policy or as an independent contract in be construed as a waiver of the right of ap- terested in the said policy; nor shall such apany controversy between the parties to or inpeal, and that both plaintiff and defendant re-plication or by-laws be considered a part of the serve the right to object and except to the tion and ruling of the court in the admission and consideration, or in the exclusion of the said 'employer's statement, as well as the right to object and except to and to appeal from any judgment rendered in this cause upon this agreement, or any judgment, decree, or order of the court of whatsoever nature that may be here the court. poses. after made. "It is further agreed that the plaintiff, if en titled to recover at all under this agreement, is entitled to recover against defendant the sum of $5,000 with interest thereon from the 1st day of June, 1912, at the rate of 6 per cent. per annum, together with all costs of suit; and that defendant, if entitled to judgment in its favor upon this agreement, is entitled to judgment that plaintiff take nothing against defendant and that it go hence without day and recover of plaintiff all costs of suit." policy or contract between such parties.' This act provides that, where a reference is made in the policy of insurance to the application, a the policy, and unless this is done, such applicacorrect copy of the latter must be attached to tion shall not be considered a part of the policy or contract between such parties.' But this does not exclude an insurance company from showing that the policy was procured by fraud and misrepresentation. "To consider the application as a part of the contract of insurance, and as forming a warranty or covenant, treats the policy as a valid contract and sets up one of its terms. To seek to set aside or repudiate the policy as having been obtained by fraud is to set up that there was no valid and binding contract of insurThe legislative enactment, which declares that, ance. The two things are entirely different. under certain circumstances, an application for insurance mentioned in the policy shall not be considered a part of the policy or contract between the parties, does not prohibit one of such parties from showing that, whatever the contract was, it was procured by the fraud of the other." [1] It is a general rule that, if one is induced to become a surety or guarantor for another through material misrepresentations of fact, such contract of the surety or guarantor will thereby be rendered invalid and the obligor will be discharged from liability That decision was cited with approval thereon; and this is true even though' such and followed in the two other cases decided misrepresentations are honestly made with by the Supreme Court of Georgia. Bowyer no intention to deceive or defraud. Cul- v. Continental Casualty Co., supra, was a bertson v. Blanchard, 79 Tex. 491, 15 S. W. suit against the casualty company upon a 700; Benton v. Kuykendall, 160 S. W. 443; policy of insurance, and in which suit the Bank of Hardinsburg & Trust Co. v. Ameri- company pleaded certain false statements can Bonding Co. of Baltimore, 153 Ky. 579, made by the insured in his application for 156 S. W. 398, 12 R. C. L. p. 335 et seq. the policy, which induced its execution and In support of its contention that in order delivery; said false statements being plead ed both as a breach of warranty and as a fraud which vitiated the policy. In that case, as in the present suit, an objection was sustained by the trial court to the introduction of the written application for the policy, because it was not attached to the policy and was therefore not admissible by virtue of a statute of the state reading as follows: "In all policies of insurance issued against loss by fire, made by companies chartered by or doing busines in this state, no condition shall be valid unless stated in the body of the policy or attached thereto.' In discussing the objection to such evidence, the court held that by virtue of that statute it was not admissible as forming a part of the contract of insurance, but said further: "Though inadmissible to prove statements of the insured as a warranty or part of the policy, because not attached to it, the application was admissible, together with other evidence, to prove fraud in the procurement of the policy. A false statement made in the application for a policy is none the less false because made therein; and, if it is an element or fact in a scheme of fraud to procure the issuance of a policy, under circumstances under which it would not be issued if the insurer had been advised of the true situation, it stands upon the same footing as if made in any other paper or way." The case of Coleman v. Retail Lumbermen's Ins. Ass'n was to the same effect and involved a statute similar to that of this state referred to above. Carrigan v. Mass. Benefit Ass'n, supra, is to the same effect, and in that case the statute which was the basis of the objection urged to the introduction of the application for the policy, like our own statute, required that the application for the policy be attached thereto, and further provided that: "Unless so attached and accompanying the policy no such application ** shall be received in evidence, in any controversy between the parties to, or interested in, the said policy, nor shall such application * * * be considered a part of the policy or contract between such parties." tions; but, in case that fraud can be shown, they shall be held to be warranties. In no attack unless such statement claimed to be case, however, shall the policy be subject to fraudulent is contained in the written application indorsed upon or attached to the policy when issued. It undoubtedly seemed fair to the Legislature that the policy holder should have in his possession, during his lifetime, such statements or representations which might be claimed, after his death, to have been frauduknow, what the contract was which he had enlent, so that he might know, or could be held to tered into. * * * ates all contracts, and that any contract which "Complainant's solicitor urges that fraud vitiprovides for removing the defense of fraud is void as against public policy; and numerous authorities are cited in support of this contention. In the instant case, it is not a question of the contract being against public policy, but rather what the Legislature of this state has declared its policy to be. What is public policy? The term has frequently been used in a loose, vague, and inaccurate sense. We may, however, safely say that, when we speak of the public policy of this state, we mean the law of the state, whether found in its Constitution, the statutes, or the judicial records. People v. Hawkins, 157 N. Y. 1, 51 N. E. 257, 42 L. R. A. 490, 68 Am. St. Rep. 736; 32 Cyc. 1251. A statute of the state must be respected unless it is in conflict with the Constitution of the state or the Constitution of the United States. Whitfield v. Etna L. Ins. Co., 205 U. S. 489, 27 Sup. Ct. 578, 51 L. Ed. 895. "The people having spoken through their representatives in the Legislature, and having prescribed what an insurance 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 wishes to make this defense, it must attach the insurance, but did say that, if the company 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." To the same effect are the following cases, in which substantially the same reasoning was advanced: Considine v. Metropolitan Life Ins. Co., 165 Mass. 462, 43 N. E. 201; Corson v. Iowa Mut. Fire Ins. Ass'n, 115 Iowa, 485, 88 N. W. 1086; Wheelock v. Home Life Ins. Co., 115 Minn. 177, 131 N. W. 1081; Biermann v. Guaranty Mut. Life Ins. Co., 142 Appellee has cited many decisions squarely in conflict with those relied on by appellant and which, we think are sustained by better reasoning. The case of New York Life Ins. v. Hamburger, reported in 174 Mich. 257, 140 N. W. 512, decided by the Supreme by the statute of this state noted above no Court of Michigan, involved the construction penalty is provided for a failure to attach a copy of the application to the policy of inof a statute reading: "No policy of life insurance shall be issued insurance; in other words, the statute contains this state, unless the same shall contain the following provisions: *** Fourth, a provision that all statements made by the insured, shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall avoid the policy unless it is contained in a written application and a copy of such application shall be indorsed upon or attached to the policy when issued." no provision to the effect that if the application is not attached it shall not be admissible in evidence in support of any defense predicated upon statements contained therein. In some of the decisions cited by appellant the statutes involved contained provisions to that effect, but in all of them the statements contained in the applications were held to be admissible on the broad ground that if untrue, and if they induced the is In discussing that statute the court said: "A careful study of the language of the section convinces us that innocent misstatements or omissions to answer on the part of the ap- suance of the policy, then the policy was reason have no legal effect whatever, upon the general theory that fraud vitiates all contracts because against public policy. In the following cases statements contained in the application for the policies sued on were likewise held inadmissible in evidence to sustain pleas of fraud in the procurement of the policies under statutes very similar to our own statute, and in which no penalty was prescribed for failure to attach the application to the policy, as required by the statutes. In the case of Schuler v. Metropolitan Life Ins. Co., 191 Mo. App. 527, 176 S. W. 274, in which the company sought to avoid the policy for fraudulent misrepresentations made in the application, the court, after referring to the statute which required the substance of the application, upon which a policy is issued and which is made a part of the contract of insurance to be attached to or indorsed on the policy, used the following language: "But it is argued that this section of our statute carries' with it no specific penalty. The answer is, that the statute requires the thing to be done. One cannot, failing to obey the law, claim any right founded on that disobedience. By failing to attach the policy or its substance, defendant, under the law, lost whatever benefit it might seek under the application. * We are not holding that the failure to attach the application or its substance to the policy nullifies the policy. What we do hold is that this absence bars defendant from using it against plaintiff. It follows that when plaintiff introduced the policy, its execution admitted payment of premiums admitted, the death of the insured admitted, and plaintiff being the beneficiary, that defendant should not have been permitted to introduce the application and its certificates to sustain a defense of misrepresentations." In the case of Archer v. Equitable Life Assur. Soc. of United States, 218 N. Y. 25, 112 N. E. 434, the company pleaded that the policy was void because procured by fraudulent misrepresentations contained in the application. The statute invoked to sustain an objection made to the introduction of the application upon the defense of fraud required such an application to be attached to the policy, but prescribed no penalty for failure so to do. In discussing that statute the court said: * * "In the requirements that the policy should contain the entire contract and that 'all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties,' the Legislature enacted, through implication, that all statements made by the assured shall be purported by, or made to appear upon, the face of the policy, * the defense designated "Third' averred that the policy was issued by the defendant in reliance upon statements, representations, and answers of the insured pertaining to his previous medical history and family record and to his physical condition at and prior to the date of his application for the policy, which were fraudulently not full and fair, and effected concealments material to the risk, and the defendant relied upon them as made. The statements, representations, and answers were not incorporated in the policy. This defense could be established only by proof of them. Inasmuch as they could not be prover for the reasons already stated, the defense is not sufficient in law upon the face of it." See, also, Arnold v. New York Life Ins. Co. (Tenn.) 177 S. W. 78. In the case of American Nat. Ins. Co. v. Briggs, 156 S. W. 909, and Southern Union Life Ins. Co. v. White, 188 S. W. 266, by Courts of Appeals of our own state, it was held that a life insurance policy containing a clause of incontestability after a period of two years, in compliance with the requirement of our statutes, could not be avoided by proof that it was procured by fraudulent misrepresentations of fact by the insured which induced its execution. [2] It is quite clear that article 4951 of our Statutes requires all policies of the character now in suit to be accompanied by a copy of the application therefor and of all questions asked and answers given thereto upon which the policy is issued. Failure to comply with that statutory requirement certainly deprives the insurance company of some rights it would otherwise have. That one of the rights so lost would be that of the insurer to say that statements so made by the insured constitute a part of the contract is not denied by appellant. We think the further inference obtains that the Legislature, in enacting the statute, intended that a failure of the insurer to comply with the mandate of the statute deprives it of the further defense as to such misrepresentations, inducing the issuance of a policy, as are made in good faith, and in ignorance of their falsity, and with no intention to deceive or defraud the insurer, although such misrepresentations so made would constitute what is sometimes inaptly designated as a "fraud in law," or "legal fraud," which, in the absence of the statute, would vitiate the policy. 1 Elliott on Contracts, § 375; 20 Cyc. 9. If the insurer is permitted to take advantage of misrepresentations which are not made a par of the contract of insurance, but which constitute a mere legal fraud as distinguished from an intentional fraud, then such a defense would accomplish the same result as if such misrepresentations were legally made a part of the contract of insurance and a breach of the contract in that respect were urged as a defense, for the same evidence would support either of those defenses and with the same effectiveness. Whether or not a defense based upon misrepresentations made with intent to cheat and defraud is also precluded by the statute is 'a question not presented for our determi nation, and which we shall not attempt to decide, since it was agreed by the parties that the misrepresentations in question were not made with such intent, but were honest mistakes on the part of the insured. [3] We are of the opinion further that although the "employer's statement" was not, strictly speaking, the application for the pol icy, yet we think that the questions asked and answers thereto shown therein are such questions and answers a copy of which was required by the statute to accompany the policy, since the policy was issued for the benefit of the employer, and in reliance upon his answers to questions propounded to him by the insurance company for the purpose of determining whether or not it would issue the policy. In fact, according to appellant's contention the statements of the employer, rather than the statements contained in the application of Scales, were the inducing cause of the issuance of the policy. For the reasons indicated all assignments of error are overruled, and the judgment of the trial court is affirmed. Affirmed. CONNER, C. J., not sitting. On Rehearing. DUNKLIN, J. In the opinion rendered on original hearing, we inadvertently said that it was agreed by the parties that the misrepresentations of the insured which induced the issuance of the policy were honest mistakes on his part and with no intention to defraud. The agreement of counsel with respect to that issue is copied in our original opinion and is as follows: "C. H. Bencini, personally, did not know the answers in said statement were untrue at the time he signed the same, but was legally chargeable with such knowledge." contract for the erection of a building thereon, FOR NOTE-INVALIDITY. A deed of trust on a homestead to secure payment of a note given by husband and wife to their contractor to erect a building is invalid where there is no contract in writing for cured on the note is, afterwards used to improve the work and material, though the money sethe homestead. 4. MECHANICS' LIENS 62- HOMESTEAD MATERIALMAN-STATUTE. There can be no lien upon a homestead ac1914, art. 5631, by a materialman who furnished quired, under Vernon's Sayles' Ann. Civ. St. material for a building erected thereon, not to the owners of the homestead, but to the builder who contracted with the owners, unless such materialman has complied with the statute. 5. MECHANICS' LIENS 86-NOTES TO MATERIALMAN-RIGHT OF CONTRACTOR. A contractor to erect a building is not entitled to a lien to secure notes given by the owners of the land, not to him, but to a materialman. 6. MECHANICS' LIENS 62-LIEN OF MA TERIALMAN-HOMESTEAD. the contractor to erect a building on homestead A mere reference to the contract between land and the owners of the homestead, in the deed of trust given to a materialman, did not create a lien in favor of the materialman against the homestead. Appeal from District Court, Tarrant County; Ben M. Terrell, Judge. Suit by W. E. Herring, as guardian, against A. C. Barber and others. From a We construed the agreement as meaning judgment for defendants Barber, plaintiff that in making the statements in controversy C. H. Bencini had no intention to defraud the insurance company, and that if he had no such intention necessarily his motive in making them was honest, even though he was legally chargeable with knowledge of the fact that they were untrue. That, and no more, was what we meant by our reference to the agreement criticized in the motion and above mentioned. With this correction of our former opinion the motion for rehearing is overruled. Motion overruled. HERRING v. BARBER et al. (No. 8803.) 1. MECHANICS' LIENS 73(2)-HOMESTEAD appeals. Reversed and rendered. E. H. Ratcliff and A. W. Christian, both of Ft. Worth, for appellant. A. J. Clenden, of Ft. Worth, S. C. Padelford, of Cleburne, and Ike A. Wynn, of Ft. Worth, for appellees. BUCK, J. In 1910 Geo. M. Herring and wife contracted with J. Thomas Franklin to construct for them a house on a certain lot owned by them. On June 29, 1910, they entered into a written contract, duly acknowledged, with Franklin, from which contract. the following quotations are taken: "Said improvements and all labor and material therefor shall be constructed, erected, built and finished in accordance with the plans and specifications made for same in writing by the parties hereto, duplicate copies of which are in the possession of each of the parties, and to which reference is now here made, and said improvements and the material and labor for same are to be furnished and delivered and constructed at the sole cost and expense of said contractor, J. Thomas Franklin. And the said improvements shall be delivered as aforesaid by said contractor on or before said date, free and clear of any and all liens and incumbrances for or on account of any labor or material furnished for same, except as hereinafter 73(2)-HOMESTEAD-provided, to wit: Two promissory notes for the sum of $600 each, with interest at 10 per cent. per annum of even date herewith and due three years after date, which said notes shall be a In the absence of express agreement, persons who furnish labor or material to the contractor to erect a building on a homestead have no lien of any character, and if there is an exprèss agreement that the contractor shall have a lien on the homestead, it will not create a lien, unless the requirements of Vernon's Sayles' Ann. Civ. St. 1914, art. 5631, are complied with. 2. MECHANICS' LIENS DEED OF TRUST. Where husband and wife give a deed of trust on their homestead, which does not show the first lien on said property; and 25 notes due Franklin completed the house and the same in monthly installments of $40 each, beginning was accepted by Herring on September 15, August 1, 1910, and one note for $49, payable 1910. It was admitted as part of the agreed one month after the last of the above 25 notes, all bearing interest from maturity at the rate of facts that at the time of the execution by the 10 per cent. interest per annum, and providing Herrings of the various instruments hereinthat the failure to pay any one of such install- above described that the lot or tract of land ments shall mature each and all of said notes. And in consideration of the undertaking and mentioned was the homestead of Herring and faithful performance by the said contractor of his family; that both Geo. M. Herring and his part of this contract, the said George M. wife died prior to the institution of this suit; Herring and wife hereby agree and bind them- that W. E. Herring, appellant, had been duly selves, their heirs and assigns, to pay to the said contractor, his heirs and assigns, the full appointed as guardian of the estate of the sum of two thousand two hundred and forty- minor children of said Geo. M. Herring and nine dollars ($2,249), to be paid as follows, to wife, and had duly qualified as such; that wit: $1,200 cash, the balance in 26 monthly installments, beginning August 1, 1910, 25 of the 26 promissory notes, aggregating $1,049, said installments being evidenced by promissory executed by Herring to Franklin, and all innotes for the sum of $40 each, and one for the terest thereon, had been duly paid and satissum of $49, executed by the said George M. Herfied. ring, payable to the said J. Thomas Franklin, with interest from maturity at the rate of 10 per cent. per annum, and it is agreed that said notes shall be a second lien on said property, subject to a lien of $1,200 in favor of Barber Lumber & Mill Company." This suit was instituted by W. E. Herring, as guardian, against Jarrell, as trustee, and individually against A. C. Barber and R. S. Barber, who constituted the Barber Lumber & Mill Company, to cancel the deed of trust The contract further provided that should aforementioned, and to remove cloud from the Herrings fail to pay the $1,049, or any title.. Defendants answered by general depart thereof, when due, the same should murrer, general denial, and pleaded in reconbear interest at 10 per cent. per annum, and vention and as a cross-action against the provided for attorney's fees and the reserva- plaintiff, as guardian, for recovery on the two tion of a "statutory lien" on the real estate notes of $600 each, given by Herring to the and improvements to secure the debt. It Barber Lumber & Mill Company, and for was further provided that should the Her- foreclosure of a mechanic's lien and deed of rings fail to pay the $1,049 to said contract- trust lien alleged to be held against the propor, "and any corporation or other person erty in controversy. By supplemental petishould pay same, or any part thereof, at the tion plaintiff pleaded that the property inrequest of said Geo. M. Herring and wife, volved was the homestead of Geo. M. Herring all the rights, liens and remedies under this and family at the time of the execution of the contract shall inure to the benefit of such alleged deed of trust, and denied that any corporation or other persons so paying said mechanic's or builder's lien was held by the sum, or any part thereof." On same date, by Barber Lumber & Mill Company, and denied written transfer, duly acknowledged, Frank- that Franklin had transferred and assigned lin assigned to the Barber Lumber & Mill to said Lumber & Mill Company any mechanCompany in consideration of $1,049 paid the ic's or builder's lien, and alleged that the con26 promissory notes heretofore mentioned, tract between Franklin and Herring provided "together with mechanic's, contractor's, and that Franklin could not assign any lien rematerialmen's lien upon the real estate and served without the consent of Herring and improvements thereon, hereinbefore describ- wife, and alleged that no such consent had ed.” On same date Herring and wife ex- been given. It was further pleaded that said ecuted and acknowledged a deed of trust to assignment in no event operated as a transfer I. W. Jarrell, trustee, on the described real of any lien held by Franklin, except to secure estate, in trust, to secure the payment of the 26 notes aggregating $1,049, all of which two notes, of even date, executed by Geo. M. had been fully paid and satisfied. Herring, payable to Barber Lumber & Mill Company, each in the principal sum of $600, due three years after date. It was provided in this instrument that: "Said two notes to be a prior and superior lien upon said property, and the following described notes to be second and subsequent thereto; 25 notes for the sum of $40 each, and one note for the sum of $49, all dated June 29, 1910, * * * each of said notes executed by Geo. M. Herring and payable to J. Thomas Frank¡in.” It was further pleaded that at no time did Herring and wife enter into any contract with the Barber Lumber & Mill Company for the furnishing of material or the performance of labor on their homestead. Wherefore they prayed as in their original petition. The cause was submitted to the court, without the aid of a jury, and from a judgment in favor of the Barbers for the amount of the two $600 notes, with accrued interest, amounting to $1,387.05, plaintiff has appealed. A. C. Among the covenants on the part of the Barber was the only living witness who tesHerrings in this instrument contained were tified in the trial court, the other evidence that they had a good perfect title in fee sim- consisting of the admitted facts heretofore ple to the land conveyed, and the right to ex- recited, and the introduction of the several ecute the instrument, and that they had done instruments in writing heretofore mentioned. no act or thing to incumber said property, Barber, after identifying the various instruand that there were no incumbrances thereon. ments introduced, testified that Franklin |