Assumpsit, by the assignee in insolvency of the estate of Joseph Dignam, to recover the proceeds of the sale of fixtures in the store of the insolvent. Facts agreed. July 23 1895, Dignam executed a mortgage to Eleanor Ferguson of “ all stock in trade and fixtures now situate in store No. 797 Elm St., Manchester,” to secure the payment of a debt of $1,000 due her from him.
¶1
The plaintiff’s claim that the constructive fraud of the parties in dealing with the mortgaged property made the mortgage voidable by him, tinder the doctrine of
Putnam
v.
Osgood,
51 N. H. 192, and similar eases, 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
*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,
e.
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 mprtgaged 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.
