FIRST NATIONAL BANK OF JACKSBORO
v.
LASATER.
No. 73.
Supreme Court of United States.
Submitted December 6, 1904. Decided January 3, 1905. ERROR TO THE COURT OF CIVIL APPEALS OF THE SECOND SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS.*116 Mr. J.W. Nichol, Mr. Thomas D. Sporer and Mr. E.W. Nicholson for plaintiff in error.
There was no appearance or brief filed for defendant in error.
*117 MR. JUSTICE BREWER, after making the foregoing statement of facts, delivered the opinion of the court.
The mere discharge by A.M. Lasater of the note executed *118 by himself and J.L. Lasater, by giving his own note in renewal thereof, would not uphold a recovery from the bank on account of usurious interest in the former note. Brown v. Marion National Bank, 169 U.S. 416. The payment contemplated by the statute is an actual payment, and not a further promise to pay, and was not made until the bank, in June, 1901, received its money. Prior to the renewal by A.M. Lasater, in October, 1900, there were only two or three small cash payments on the indebtedness.
We shall not stop to inquire whether J.L. Lasater can avail himself of the final payment made by A.M. Lasater. The Court of Appeals held that he could, reaching this conclusion on the authority of cases like Hough v. Horsey, 36 Maryland, 184; Richardson v. Baker, 52 Vermont, 617, to the effect that the grantee of mortgaged property, who in consideration of the purchase agrees to pay off the mortgage, cannot raise the question of usury, that being a personal right of the original debtor.
The Court of Appeals also held that the claim for usurious interest was one which survived the death of the person in whom the right of action was vested, and under the laws of Texas a part of his estate, and consequently one that could be sold and bought like any other chose in action. If so, that claim passed to the trustee in bankruptcy under section 70 of the bankrupt law, which, in describing the property passing to the trustee, names "property which prior to filing of the petition he could by any means have transferred."
The question then presented is whether this right of action having once passed to the trustee in bankruptcy was retransferred to J.L. Lasater upon the termination of the bankruptcy proceedings, he having returned no assets to his trustee, and having failed to notify him or the creditors of this claim for usury, and beginning this action within less than two months after the final discharge of the trustee. We have held that trustees in bankruptcy are not bound to accept property of an onerous or unprofitable character, and that they have a *119 reasonable time in which to elect whether they will accept or not. If they decline to take the property the bankrupt can assert title thereto. American File Company v. Garrett, 110 U.S. 288, 295; Sparhawk v. Yerkes, 142 U.S. 1; Sessions v. Romadka, 145 U.S. 29; Dushane v. Beall, 161 U.S. 513. But that doctrine can have no application when the trustee is ignorant of the existence of the property and has had no opportunity to make an election. It cannot be that a bankrupt, by omitting to schedule and withholding from his trustee all knowledge of certain property, can, after his estate in bankruptcy has been finally closed up, immediately thereafter assert title to the property on the ground that the trustee had never taken any action in respect to it. If the claim was of value (as certainly this claim was according to the judgment below) it was something to which the creditors were entitled, and this bankrupt could not, by withholding knowledge of its existence, obtain a release from his debts and still assert title to the property.
The judgment of the Court of Civil Appeals is reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion.