Danciger v. Smith/Opinion of the Court
This suit was brought by Smith in the district court for Dallas County, Texas, to recover brokerage commissions claimed to be due him from Danciger and the Emerich Oil Co. He assigned part of this claim to his attorneys; and later assigned the remainder to two of his creditors as security for antecedent debts, agreeing to prosecute the suit in his name and account to them for the proceeds. More than four months thereafter he filed a voluntary petition in bankruptcy. He did not mention this claim in the schedules, and stated that he had no assets and that none of his property had been assigned for the benefit of creditors. He was thereupon adjudicated a bankrupt. No trustee was appointed for his estate; and he was granted a discharge.

At the trial of the suit the defendants, in addition to their defenses on the merits, relied upon the defense, appropriately pleaded, that by reason of the proceeding in bankruptcy Smith had ceased to be the owner of the cause of action and was not entitled to prosecute the suit. This contention was overruled, and Smith recovered judgment. This was affirmed by the Court of Civil Appeals, 286 S. W. 633; and an application to the Supreme Court for a writ of error was denied, 116 Tex. 269, 289 S. W. 679.

The petitioners contend that by permitting Smith to continue the prosecution of the suit after his adjudication in bankruptcy they were deprived of a right, privilege and immunity under the Bankruptcy Act. 

The act provides, with certain exceptions not here material, that a trustee of the estate of a bankrupt, upon his appointment and qualification, shall be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, to all nonexempt property, including rights of action (section 70 (11 USCA § 110)); and that the trustee may, with the approval of the court, be permitted to prosecute any suit commenced by the bankrupt prior to the adjudication (section 11c (11 USCA § 29)).

It is clear that under these provisions an adjudication in bankruptcy, until followed by the appointment of a trustee, does not divest the bankrupt's title to a cause of action against a third person or prevent him from instituting or maintaining suit thereon. Thus, he may institute and maintain such a suit before the election of a trustee. Johnson v. Collier, 222 U.S. 538, 539, 32 S.C.t. 104, 56 L. Ed. 306; Christopherson v. Harrington, 118 Minn. 42, 45, 136 N. W. 289, 41 L. R. A. (N. S.) 276. Or. if no trustee is appointed. Rand v. Iowa Cent. Ry., 186 N. Y. 58, 60, 78 N. E. 574, 116 Am. St. Rep. 530, 9 Ann. Cas. 542; Griffin v. Mutual Life Ins. Co., 119 Ga. 664, 665, 46 S. E. 870, in which the opinion was delivered by Judge Lamar, later a member of this Court. And see Fuller v. New York Fire Ins. Co., 184 Mass. 12, 16, 67 N. E. 879; Gordon v. Mechanics' & Traders' Ins. Co., 120 La. 442, 443, 45 So. 384, 15 L. R. A. (N. S.) 827, 124 Am. St. Rep. 434, 14 Ann. Cas. 886, and Schoenthaler v. Rosskam, 107 Ill. App. 427, 436. In Johnson v. Collier, supra, this Court said:

'While for many purposes the filing of the petition operates      in the nature of an attachment upon choses in action and      other property of the bankrupt, yet his title is not thereby      divested. He is still the owner, though holding in trust      until the appointment and qualification of the trustee, who      thereupon becomes 'vested by operation of law with the title      of the Bankrupt' as of the date of adjudication. * * * Until      such election the bankrupt has title-defeasible, but      sufficient to authorize the institution and maintenance of a      suit on any cause of action otherwise possessed by him. * * *      During that period it may frequently be important that action      should be * * * taken to recover what would be lost if it      were necessary to wait until the trustee was elected. The      institution of such suit will result in no harm to the      estate. For if the trustee prefers to begin a new action in      the same or another court in his own name, the one previously      brought can be abated. If, however, he is of opinion that it      would be to the benefit of the creditors, he may intervene in      the suit commenced by the bankrupt. * * * If the trustee will      not sue and the bankrupt cannot sue, it might result in the      bankrupt's debtor being discharged of an actual liability.      The statute indicates no such purpose, and if money or      property is finally recovered, it will be for the benefit of      the estate. Nor is there any merit in the suggestion that this might involve a liability to pay both      the bankrupt and the trustee.'

It follows that Smith's title to the right of action was not divested by the proceeding in bankruptcy, no trustee having been appointed to whom it could pass; and that the Bankruptcy Act did not prevent him from subsequently prosecuting the suit to judgment.

The doctrine of First National Bank v. Lasater, 196 U.S. 115, 119, 25 S.C.t. 206, 49 L. Ed. 408, on which the petitioners rely-that a bankrupt who omits to schedule and withholds holds all knowledge of a valuable claim, cannot, after obtaining a discharge from his debts, assert title to such claim and maintain a suit thereon in his own right-has no application here; for in that case a trustee had been appointed to whom the right of action had passed.

No other federal question is presented by the record. If, as urged by the petitioners, the assignments made by Smith were void as against his other creditors-who were not before the court-any question that may arise as to whether he holds the judgment for the benefit of his assignees or of his general creditors, may be determined in appropriate proceedings taken for that purpose. See Griffin v. Mutual Life Insurance Co., supra, 665 (46 S. E. 870). In any event the petitioners were not prejudiced.

Judgment affirmed. 

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