Clark’s homestead rights were acquired under St. 1855, c. 238, and not under St. 1851, c. 340, because, under the last named statute, no one could acquire those rights, unless it was set forth in the deed conveying the property to him, or in a notice in the registry of deeds, that the property was des gned to be held as a homestead. By the first named statute (Í) 3) no homestead property is exempted from sale or levy on e ce cutio n for any debt contracted by the owner before the stat-u te was passed. In this case, the homestead property was of the value of five hundred dollars; and Clark, when he petitioned for the benefit of the insolvent laws, owed debts to the amount of seven hundred dollars, which were contracted before the passage of that statute. For those debts, therefore, the creditors might have levied executions on that property. It follows, that the property was not “ by law exempted from attachment,” by the first and fifth sections of the insolvent act of 1838, c. 163. Woods v. Sanford, 9 Gray.
There can be no doubt that Clark, by the mortgage to the plaintiff, executed as it was by his wife, released and conveyed all the homestead rights conferred on him and his family by statute. And the plaintiff would hold the property, disincumbered of those rights, if Clark’s creditors would not be thereby defrauded. But the jury have found that the mortgage was made in fraud of the insolvent laws ; that is, “ with a view to *21give a preference ” to the- plaintiff over other creditors. As to those creditors it was therefore void, and was rightly assigned, by the judge of insolvency, to Clark’s assignee.
The jury were rightly instructed that it was competent for them to infer, from the fact that Clark did give a preference to the plaintiff, that he intended to give it. Denny v. Dana, 2 Cush. 172.
Whether the mortgage is void as to creditors whose claims arose after the passage of St. 1855, c. 238, or only as to prior creditors, and how the mortgaged property, or the avails thereof, shall be distributed among the different creditors, are questions which, though discussed in argument, we cannot definitively settle in this action, and upon which we therefore intimate no opinion. That property is now rightly in the assignee’s hands, and is to be appropriated, like all other assigned property of an insolvent debtor, according to the law which shall-be found applicable to it. When either of the foregoing questions shall come before us, in a form proper for ultimate decision, they will be considered and determined. Exceptions overruled.