The plaintiff took his policy of insurance subject to the conditions stated in the by-laws of the insurance company; and among these conditions it was stipulated that the policy should be void “ if the application shall not contain a full, fair and substantially a true representation of all the facts and circumstances respecting the property, so far as they are material to the risk; or if it shall not express the true title of the assured to the property, and his interest therein.”
Among the interrogatories put to the applicant and answered in the application, “ relating to the risk,” were these : “ 2. What interest have you in the property to be insured ? ” to which the plaintiff answered, “ Own it; ” and “ 13. Is it incumbered by *49mortgage or otherwise ? If so, for what sum ? ” To which the answer was, “ Yes. One thousand dollars, with other property.”
Previous to the application the plaintiff had conveyed the premises by an absolute deed, taking back a bond for a reconveyance on the payment of $600 in five years. When the time limited in that bond had expired, it was given up by him ; and a further advance of money was made to him, and a new bond was given to him for the conveyance of the estate upon payment of both sums.
The second bond was renewed in like manner; until at the date of the application the plaintiff held a bond which entitled him to a conveyance on payment of $1400 and interest.
The first deed and bond unquestionably constituted a mortgage ; and the plaintiff now contends that this character of the estate was not changed by the subsequent transactions, and that he held an equity of redemption when he answered that he owned the property. But we cannot so regard it. The bond of defeasance, the only contract made with him at the time when he conveyed the land, had been surrendered, and by the agreement of the parties had become inoperative and void. The new bonds given in succession were in every essential particular new and independent contracts; they were different in amount, upon a consideration partly new, and to be performed at a different time. They were therefore merely personal contracts ; and not being made at the same time with the conveyance of the land, or provided for in any agreement made at that time, did not create any estate in the land. The plaintiff had surrendered and abandoned the title which he held as mortgagor, and made a contract to purchase the land upon new conditions, and for a new consideration. There is no recital in the bond which the plaintiff held at the time he effected his insurance, connecting it with the original bond, or showing that it was intended to be a mere renewal or extension of the other; and there is no evidence that it was so understood or agreed by the parties. The case is thus precisely within the decision in Trull v. Skinner, 17 Pick. 213, and of the cases there cited. See also Rice v. Bird, 4 Pick. 350, note.
*50No case has been found by the plaintiff’s counsel in which it was ever held that, under such circumstances, the new contract to convey would constitute a mortgage. In Stetson v. Gulliver, 2 Cush. 494, there was no proof that the first bond was can-celled or surrendered or in any way vacated, when the second bond was taken.
The plaintiff’s statement, therefore, that he owned the estate, to which he had no title, avoided the policy. Smith v. Bowditch Ins. Co. 6 Cush. 448.
The answer to the question respecting incumbrances would present an obstacle equally fatal to the plaintiff’s case, if we could consider his title as that of a mortgagor. The amount due on the bond to entitle him to a conveyance was $1400; while his answer disclosed but $1000. It is suggested that the amount really belonging to the property insured was but $1000, because the proportionate value of that to the whole estate covered by the mortgage was but as $1000 to $1400. But the mortgage was entire, and could not be apportioned by the mortgagor or those claiming under him. The insurance company could have had no benefit of their lien upon the estate, without discharging the whole incumbrance. The relative value of the - different parts of the property would be liable to continual change ; and the defendants had a right, in answer to their express interrogatory, to a full disclosure of the entire extent of the burden to be assumed in order to make the title to the estate clear and indefeasible. Davenport v. New England Ins. Co. 6 Cush. 340. Wilbur v. Bowditch Ins. Co. 10 Cush. 446. Hay ward v. New England Ins. Co. Ib. 444.
Judgment on the verdict for the defendants.