The assignment of this policy by Whiting to the plaintiff, and the agreement of the latter to be holden for the payment of such sums as might be assessed on the deposit note, assented to by the defendants, might have the effect to create new relations between the parties, so far as to avoid a forfeiture of the policy by reason of any subsequent acts of Whiting. But as to past acts affecting the policy, and the representations and acts of Whiting prior to the assignment, the plaintiff is liable to be affected thereby. Foster v. Equitable Ins. Co. 2 Gray, 219.
It is objected to the application for the policy that it does not disclose the fact that the person holding the second mortgage, Jacob Sanborn, had already taken possession of the premises *135for condition broken, and that a certificate to that effect had been given by the mortgagor, and the same had been duly recorded.
That such a taking of possession by the mortgagee for condition broken was deemed by the defendants a material change in relation to the property, is apparent from the provisions of the 12th article of the by-laws as to the effect of such entry and taking of possession by the mortgagee after issuing the policy.
It is true that the first entry and taking of possession by San-born were previous to the application for this policy, so that the case stated in the by-law is not literally presented; but the fact of such taking of possession wTas a material one to be disclosed in relation to the title and condition of the property. It however further appears that on the 20th of March 1858 Sanborn again formally took possession of the premises for breach of condition. The precise reason for this second entry does not appear; but it seems to have been resorted to under the idea that the former entry was ineffectual, by reason of the entry and possession taken by the previous mortgagee, and the second entry, as it appears, was under some arrangement with the first mortgagee. At this time, certainly, the entry by the second mortgagee became effectual, and under article 12 rendered the policy void, and as respects the second mortgagee it was never revived.
There had also been an entry under the first mortgage, the day after the application for the policy, and this possession was continued at least until the 18th of March 1858. There was also an entry under the third mortgage. For the period of more than two years after the date of this policy, the property insured remained in the possession of the mortgagees.
Upon the sale by Whiting of his equity of redemption, on the 19th of April 1859, to the plaintiff, who had become the owner of the first mortgage, the assignment of this policy was made.
'The possession thus taken by the various mortgagees — especially that taken by Sanborn — is fatal to the validity of this policy.
*136It is perhaps unnecessary to consider the further objection urged against the validity of this policy, namely, that of the false statement as to the amount of the incumbrances on the property. The question was directly asked of the applicant, and he was required to state whether it was incumbered, and to what amount. The answer was, “ There are two mortgages, $2700 in all. First, of $1150; 2d mortgage, $1550.” It now appears that there was in fact due upon the first mortgage, in addition to the $1150 principal, $300 accrued interest thereon; making the first mortgage an incumbrance of $1450.
We do not suppose entire precision is requisite in such a statement, or that the omission to state a small amount of accumulated interest would avoid the policy. But this was not such a case. The interest, having accumulated to the amount of $300, became in this case a substantial part of thq incumbrance, and it is difficult to see why to that extent this statement as to existing incumbrances on the property was not false. It therefore subjected him to the consequences of his stipulation contained in the application, “ that if any of the above statements are false or incorrect, any policy issued thereon shall be void.”
Judgment for the defendants.