The question here raised is, whether, upon this particular policy, and the statements accompanying the application therefor, in the form of answers to interrogatories to the plaintiff, upon the case disclosed by the evidence the plaintiff can maintain this action.
The only title which the plaintiff had at the time of the making of the policy, and at the time of the loss by fire, was that, of a mortgagee of the premises insured, and a mortgagee who had not entered for foreclosure, but holding the property as a security for the payment of a certain sum of money.
No doubt exists that a mortgagee has an insurable interest *373upon which he may properly take a policy of insurance. How far he is particularly to disclose that interest, may depend upon the character of the insurance company with which he deals, their charter and by-laws, and the stipulations in his policy. A rigid and searching course of interrogatories may require full and (areful answers; and, in reference to mutual insurance companies, it has been deemed proper by those entrusted with their management, to guard their interest by minuteness and particularity of inquiry of those applying for insurance.
In the case before us, such interrogatories were put in the questions, “ Who owns the buildings?” “ Whether incumbered, by what, and to what amount? ” To the first of these inquiries, the plaintiff answered, “ Owned by insured;” and to the second question, “ No.”
Were these answers true? Taken together, they clearly represent that the assured had the title in himself, and that no other person was owner, either as mortgagor or mortgagee.
It has been sometimes said that the mortgagee has the legal estate in the premises mortgaged to him. This, confined strictly to the legal relations existing between him and the mortgagor, may be so; but, as affecting the rights of the mortgagor with third persons, the estate remains in the mortgagor until the mortgagee asserts his right by entry under his deed. Eaton v. Whiting, 3 Pick. 488.
The by-laws of this insurance company so treat the interest of a mortgagee, and therefore, in art. 19, specially provide for the cases of insurance in favor of mortgagees, and state the prerequisites necessary to obtain such an insurance. The plaintiff did not in his application state his interest to be that of a mortgagee, nor comply with the provisions in reference to such a policy. He was, under his application, recognized as the owner of the entire interest, when in fact he had only a defeasible interest which might never ripen into an absolute one. He could not charge the property with a lien, nor would it be the subject of attachment by his creditors.
There was therefore clearly a misrepresentation as to the title and interest of the assured in the premises; and by art. 16 of the *374by-laws of the company, the policy in such case is void. Davenport v. New England Mutual Fire Ins. Co. 6 Cush. 341 Clark v. New England Mutual Fire Ins. Co. 6 Cush. 347 Bowditch Mutual Fire Ins. Co. v. Winslow, 3 Gray, 431.
The only remaining question is whether the oral evidence offered by the plaintiff was admissible to obviate this objection by proving that the officers of the company in fact knew the true state of the property, and that the plaintiff orally applied for an insurance on his interest as mortgagee. The competency of such evidence was fully considered in the case of Barrett v. Union Mutual Fire Ins. Co. 7 Cush. 175. It was there declared to be inadmissible because it tended to contradict or materially vary the terms of a written instrument. The same rule of exclusion must be applied here, for the same reasons.
Judgment on the verdict.