The Court of Civil Appeals in holding as it did, holds differently from a prior decision of the same court upon the same question of law, viz: the decision in the case of Perkins v. Alexander, 209 S.W. 789, in which latter case such court followed the Supreme Court of the United States in the case of First National Bank v. Lassiter, 196 U.S. 115, 49 L.Ed., 408, to the effect that where a bankrupt had not scheduled an asset the title thereto was not reinvested in him by failure of the trustee to assert ownership. Acme Harvester Co. v. Beekman Lbr. Co., 222 U.S. 300, 56 L.Ed., 208; Cobb, In re., 96 Fed., 821; Cutler John, In re., 228 Fed., 771; Fincher v. Buie, 254 S.W. 156; Jersey Island Packing Co., In re., 138 Fed., 625; Juden v. Nebham, 60 Southern, 45; First National Bank of Jacksboro v. Lasatar, 196 U.S. 115, 49 L.Ed., 409; Paleais, In re., 296 Fed., 403; Patterson Lbr. Co., In re., 247 Fed., 578; Perkins v. Alexander, 209 S.W. 789; Rand v. Sage, 102 N.W. 864; Western Star Lodge v. Burkes, 267 Fed., 550. In view of defendant in error's bankruptcy, he does not own the cause of action sued on, and therefore cannot recover.

There is a conflict in the conclusions reached in the few cases dealing with this question. Rand v. Sage, 94 Minn. 344; Rand v. Iowa Central R. Co., 186 N.Y. 58; Gordon v. Mechanics' Insurance Co., 120 La. 441. 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.

Some bar the discharged bankrupt from all rights in undisclosed property. ( First National Bank v. Lasater, 196 U.S. 115; Rand v. Sage, 94 Minn. 344, 102 N.W. 864; Jones v. Barnes, 107 Miss. 800, 66 So. 212.) Others permit a bankrupt to assert any right in undisclosed assets against third persons. ( Wilsey v. Jewett Bros. 122 Iowa 315, 98 N.W. 114; Steevens v. Earles, 25 Mich. 40; Lancy v. Foss, 88 Me. 215, 33 A. 1071.) Courts have distinguished between cases involving land and those involving chattels, ( Herndon v. Davenport, 75 Tex. 462, 12 S.W. 1111; Jones v. Pyron, 57 Tex. 47; Laing v. Fish, 119 Ill. App. 645,) and between fraud and unintentional nondisclosure.

He should be, and is, precluded from taking advantage of his own omission by asserting such title. Rand v. Sage, 94 Minn. 344, 102 N.W. 864; Suetter v. A. E. Kern Co., 146 Or. 96, 29 P.2d 534; Juden v. Nebham, 103 Miss. 84, 60 So. 45. While in some states, notably New York, the courts have reached a contrary conclusion where no trustee has been appointed (111 A.L.R. 852), we prefer to follow the rule which denies to one who has refused to disclose his property, and has thus defrauded his creditors, the right thereafter to call upon the courts to establish or confirm his title to such property.

In re Levy (D.C.) 227 F. 1011; Jones v. Barnes, 107 Miss. 800, 66 So. 212; Rand v. Iowa Cent. Railroad Co., 96 App. Div. 413, 89 N.Y.S. 212; Neuberger v. Felis, 203 Ala. 142, 82 So. 172; Robinson v. Denny, 57 Ala. 492; 7 C.J. 131. Where the bankrupt fails to schedule any assets, the fact no trustee is appointed does not prevent title to property of the bankrupt from divesting out of him; the title then vests in the creditors. Juden v. Nebham, 103 Miss. 84, 60 So. 45. A bankrupt cannot, by withholding from his trustee all knowledge of his property, wait until the estate is closed, obtain release from his debts and then assert title to the property on ground the trustee has taken no action respecting it. First Nat. Bank v. Lasater, 196 U.S. 115, 25 S.Ct. 206, 49 L.Ed. 408; Jones v. Barnes, 107 Miss. 800, 66 So. 212; Laing v. Fish, 119 Ill. App.? 645; Hunt v. Doyal, 128 Ga. 416, 57 S.E. 489; Rand v. Sage, 94 Minn. 344, 102 N.W. 864; Clements v. Taylor, 65 Ala. 363; Raley v. D. Sullivan Co. (Tex.Com.App.) 207 S.W. 906; Perkins v. Alexander (Tex.Civ.App.) 209 S.W. 789; Scruby v. Norman, 91 Mo. App. 517; Rand v. Iowa Cent. R. Co., 186 N.Y. 58, 78 N.E. 574, 116 Am.St.Rep. 530, 9 Ann.Cas. 542.

We are without power to interfere. Rand v. Sage, 94 Minn. 344, 102 N.W. 864, and Wade v. Major, 36 N.D. 331, 162 N.W. 399, L.R.A. 1917E, 633, cited by petitioners, furnish no assistance. The writ is discharged and the order of the trial court affirmed.

As a general rule, when a person or corporation is adjudged a bankrupt, the title to unexempt property passes to the trustee when he qualifies. Thereafter the bankrupt can no longer exercise dominion over his property or rights of action upon contracts, Rand v. Sage, 94 Minn. 344, 102 N.W. 864; 7 C.J. p. 130; but, with the approval of the bankruptcy court, when substituted as plaintiff the trustee may prosecute a suit commenced by the bankrupt prior to the adjudication. 7. C.J. p. 145.

We see no reason why such steps should not be taken if necessary by means of an application to the Bankruptcy Court. It may very well be that any sum recovered by the plaintiff in the present action will be held by him as trustee for his creditors; but this is a matter which does not concern the defendant so long as the plaintiff holds the legal title to the claim and the defendant is secured against any possibility of being compelled to pay it twice. We do not overlook the fact that the conclusion which we have reached upon the principal question presented by this appeal is in conflict with the view expressed by the Supreme Court of Minnesota in Rand v. Sage (102 N.W. Rep. 864); but while entertaining the highest respect for that learned tribunal, we remain satisfied with the correctness of our own decision in Fuller v. Jameson ( supra), which, as has already been pointed out, is in harmony with the construction put upon section 70 of the Bankruptcy Act by the Supreme Judicial Court of Massachusetts. It follows that the judgment of the Appellate Division and the judgment entered upon the dismissal of the complaint must be reversed and a new trial granted, costs to abide the event.

It was necessary that he prove that the bankrupt court had exercised and concluded its jurisdiction. Booth v. Bates, 215 Ala. 632, 112 So. 209; Coffman v. Folds, 216 Ala. 133, 112 So. 911; 7 C. J. 417; Rand v. Sage, 94 Minn. 344, 102 N.W. 864. C. A. Wolfes, of Ft. Payne, for appellee.