Wright v. Calhoun National Bank , 31 Ga. App. 434 ( 1923 )

Bell, J.

This case is here upon exceptions to the nonsuit of an action in trover. Prior to the filing of the suit the plaintiff had been adjudicated a bankrupt. After an adjudication in bankruptcy and before the appointment of a trustee the bankrupt has sufficient title in the property theretofore owned by him to authorize the institution and maintenance of a suit by him to protect the assets of the bankrupt estate. Until such appointment or election of a trustee 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. 2 Collier on Bankruptcy (13th ed., 1923), p. 1636, §70; Johnson v. Collier, 222 U. S. 538 (56 L. ed. 306). But “the trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt.” Bankruptcy act of 1898, § 70; 2 Collier on Bankruptcy 113th ed., 1923), 1626. It is conclusively to be inferred from the plaintiff’s evidence that the property for which the action in trover was brought had been acquired by him prior to his adjudication as a bankrupt. It follows that the right to sue for its conversion, unless it was exempt, was in the trustee, if a trustee was appointed and qualified before the suit was brought. . The evidence upon the trial was silent as to whether a trustee had been appointed or not, but, it appearing from the plaintiff’s evidence that he was adjudicated a bankrupt several months before the present suit was filed, and that there were assets to be administered, even if only those sued for, the presumption would be that a trustee was duly elected and qualified before the suit was filed; and there being no proof that the property sued for had been set aside to the plaintiff as a homestead or exemption, the right to sue was prima facie in such trustee and not in the bankrupt. See Bankruptcy act of 1898, §§44, 55, 70; 2 Collier on Bankruptcy (13th ed., 1923), pp. 1015, 1099, 1634, 1635, 1641, 1818; Wright v. Ehrlich, 146 Ga. 400 (1) (91 S. E. 412). Applying the foregoing principles to the evidence, the proof did not show that the plaintiff had title or the right to 'sue for the property at the time his action was brought, and the nonsuit ■was proper.

Decided December 10, 1923. M. B. Eubanks, for plaintiff. J. G. B. Erwin, for defendant.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.