Assuming that by force of the assignment to the Winslows by Morrill, with the assent thereto of the plaintiffs in review, the action was properly brought in the name of the Winslows, the further inquiry is as to the sufficiency of the defence to the original action. This is placed upon two grounds, first, the false representation of Morrill, in his application for a policy, as to the extent of the incumbrances upon the property ; secondly, a failure on the part of Morrill to pay an assessment upon his policy, within the time specified in the by-law, whereby the policy was forfeited, and the company discharged from further liability. As to the second ground of defence, it arises upon facts happening after the assignment of the policy to the Winslows, and it is contended on their behalf, that the Wins-lows are not properly chargeable therefor, the neglect being that of Morrill only, and there not having been any demand upon them for the payment of the assessment. Whether this position can be maintained, we have not found it necessary particularly to consider; for, whatever may be the rule of law as to the effect of a violation of the by-laws or stipulations in the policy, after the assignment by Morrill, we suppose no doubt can exist as to the right of the insurance company to show that this *44policy was defeated by reason of misrepresentations of the assured made in his original application for the policy. This assignment transferred the policy of Morrill only. It did not profess to create a new policy. The Winslows assumed no responsibility to the insurance company, gave no new deposit note to the company, nor any guaranty of Morrill’s note; in fact, did nothing more than to succeed to Morrill’s right and interest in the policy, whatever those might be. The question is, virtually, whether as a policy to Morrill there exists a valid defence to it.
It now appears that there was in the original application of Morrill a material misrepresentation as to the extent of the incumbrances upon the property. In answer to the direct inquiries as to whom and to what amount it was mortgaged, it was stated to be mortgaged for two thousand dollars. It was in fact mortgaged not only for the two thousand dollars, but in a distinct mortgage for the further sum of eight hundred dollars. This false statement as to the incumbrances, in answer to a direct question, under the repeated decisions of this court, and as it seems also to have been held in reference to this particular case, upon the hearing of the petition for review, renders the policy invalid. Bowditch Mutual Fire Ins. Co. v. Winslow, 3 Gray, 431, and cases cited. It was invalid originally in the hands of Morrill, and equally so in the hands of the party claiming under him.
In answer to this, it is now urged that after the assignment to the Winslows this objection was obviated, as the assignment recites that “ having mortgaged the property within mentioned to Isaac Winslow & Sons, I hereby assign to them or their assigns the within policy, to hold as collateral security for the performance of the condition of said mortgage.” It is true that after this transfer to the Winslows, the policy was held by the persons who were the mortgagees in the two thousand dollar mortgage. Except as to those authorized to receive the avails of this policy in case of loss, there was no other outstanding mortgage than th:3 eight hundred dollar mortgage to the Traders’ Bank. But we do not see how this changes the aspect of the case, or removes the objection. The recital as to the mortgage to the Wins-*45lows was only a restatement of what had been stated in the original application, and the assignment of the policy did not discharge that incumbrance or lessen the whole amount of incumbrances on the property insured. As already remarked, the Winslows did not by this indorsement take a new policy as mortgagees, but a transfer of Morrill’s interest in the policy he had obtained.
It is further urged that the falsity of the representations of Morrill ought not to affect the policy, unless material to the risk, and that the value of the property insured was so large, that the omission of the eight hundred dollar mortgage was not material to the risk. But this is no sufficient answer, as the party applying for the policy was bound, in answering the interrogatories, to answer truly; and having made a false statement in this respect, he has thereby rendered the policy of no effect. This seems to us to have been distinctly ruled in the former decision of the court in this case. 3 Gray, 432. We see nothing in the present aspect of this case to lead us to change the opinion there expressed; and the result is therefore that the original action against the company cannot be maintained, and there must be
Judgment for the plaintiffs in review.