Wright v. Ehrlich & Co. , 146 Ga. 400 ( 1917 )

Beck, J.

(After stating the facts.) We. are of the opinion that the court erred in overruling the motion to dismiss the petition. The contention of the plaintiffs in error, as made by them in their motion to dismiss, is sound. They contend (and the defendants in error do not take issue with them upon this contention) that the deed from C. C. Wright to his mother, under the facts alleged, was void or voidable,; if the deed was void, title to the land vested in the trustee in bankruptcy; if voidable, the right to have it declared void was in the trustee in bankruptcy; and the trustee alone had the right in the first instance to proceed against the property. Treating the deed of C. C. Wright to his mother as void, as it must be held to be under the allegations of the petition, title to the property of the bankrupt was vested, as we have just said, in the trustee in bankruptcy. Collier on Bankruptcy (10th ed.), 992; Beasley v. Smith, 144 Ga. 377 (87 S. E. 293). And the right to move to have the deed declared void, and to convert the property into assets of the bankrupt’s estate, is the right and duty of-the trustee in bankruptcy. If the trustee in bankruptcy, after knowledge of the facts showing that the property in question is a part of the assets of the bankrupt to be administered, should take no steps to set aside the deed, or should refuse to proceed to set aside the deed and to take possession of the property, thus leaving the bankrupt in the possession and enjoyment of the same, these creditors, petitioners, might take steps in the bankruptcy court to have the trustee proceed to subject the jn’operty, or they might, upon showing that he failed and refused to proceed, themselves move to bring the property to sale; but until it is shown that the trustee in bankruptcy fails or refuses to move in the premises, creditors can not, by direct proceedings against the debtor and his property, subject the property tp their individual claims. It was therefore error for the court to overrule the motion to dismiss, thereby adjudging that the creditors, the defendants in error, had the right to maintain their action.

Judgment reversed.

All the Justices concur.