| N.H. | Dec 15, 1861
By the charter of the defendant corporation, all buildings, and the land upon which they stand, and the property insured therein, shall be held as security for any deposit note which is held for such insurance ; and the policy itself shall create a lien upon the same. And it is provided that, if the assured have an estate less than a fee-simple, unincumbered, in the property insured, “ or if the property or premises are incumbered, policies shall be void, unless the true title of the assured and the incumbrances on the same be expressed therein.” Sections 7 and 11 of the act of incorporation.
Under these circumstances, the existence of an incumbrance is a fact material, as a matter of law, to be disclosed; and, if not set forth in the policy, it will be void, unless it be shown that the incumbrance was known to the insurer, and not fraudulently concealed.
The case before us, provided the contract was completed, is brought clearly within the principle of Marshall v. Insurance Co., 27 N. H. 157, and that principle is confirmed by the case of Patten v. Insurance Co., 38 N. H. 338, and other cases cited by the defendant’s counsel.
The question then is, was any contract of insurance made or .perfected? and if so, what was it? The case finds that the application, premium note, and policy, the latter signed, and the others not signed, were placed in the hands of the plaintiff a few weeks after their date, and were retained by him, without signing the application or note, or paying the premium, until after the loss of the property by fire, December 9, 1859. Whether as matter of law there could be a delivery of the policy so as to take effect as such, until the execution of the application and premium note, it is not, with the views we entertain, necessary to inquire; because we are of the opinion that the application and policy, with the charter and by-laws, are but parts of an entire contract, and that the plaintiff could not receive and hold the policy as binding upon the defendant, without, at the same time, recognizing and giving effect to the application and all its stipulations, as binding upon him. The policy expressly refers to the application for a description of the property insured, and as forming a part of the policy; and, in accordance with repeated decisions in this State, the application must be regarded the same as if incorporated into the policy itself.
It is true, it might be open to the plaintiff to show that, in this case, the application was not made a part of the policy ; but to do so against the written stipulation in the policy, would probably require something more than parol testimony, and nothing of any kind in that direction is shown. We hold, then, that, if any contract of insurance was made, the application, upon the facts before us, must be regarded as part, and binding upon the plaintiff; and, therefore, as the incumbrance upon the property was not made known, the policy must be held void. If it were material to inquire whether the policy w7as, in fact, delivered without requiring the execution and delivery of-the application and note, and it were competent in law to show it, there is nothing stated in the case from'which the court could properly make an inference as to the fact of such delivery, but it would be a matter for the jury.
As such inquiry is not deemed necessary, and as the plaintiff is not entitled to recover for the loss of the dwelling-house, there must be, in accordance with the agreement of the parties,
Judgment for the defendant.