The plaintiff's claim that the constructive fraud of the parties in dealing with the mortgaged property made the mortgage voidable by him, under the doctrine of Putnam v. Osgood, 51 N.H. 192, and similar cases, cannot be maintained. The recent case of Thompson v. Esty, 69 N.H. 55, held that only actual fraud would enable the assignee of an insolvent debtor to avoid transactions in fraud of creditors under the insolvent law. P.S., c. 201, s. 26. In Hodgdon v. Libby, 69 N.H. 136, the same doctrine was applied, although the second mortgage in that case was *Page 574 given after the amendment to the insolvency law vesting in the assignee "all property which might have been taken on execution upon a judgment" against the debtor (Laws 1895, c. 68) went into effect. This case is not distinguishable from and is determined by Hodgdon v. Libby. The whole amount received from the sale of the mortgaged property belonged to the mortgagee, unless the right of attaching creditors intervened. In neither event could the assignee take any part of the funds without first paying the mortgage debt.
Judgment for the defendant.
All concurred.