JOSEPH HULL, PRAIRIE PEBBLE PHOSPHATE COMPANY, A CORPORATION, AND SAVANNAH TRUST COMPANY, A CORPORATION, APPELLANTS,

v.

ARTHUR E. BURR, AS TRUSTEE IN BANKRUPTCY OF THE PORT TAMPA PHOSPHATE COMPANY, APPELLEE

Cockrell, J.

A full statement of the bill of complaint and the demurrer thereto will be found in the report of the former appeal, 58 Fla., 432, 50 South. Rep., 754. The order there affirmed was that the demurrer be overruled and the defendants be allowed time within which to answer the bill. Upon the return of our mandate the defendants moved to dismiss the bill and for leave to file a demurrer with amended or additional grounds, and also filed pleas, the motions were denied, the pleas overruled with leave to answer, and the defendants again appeal.

We find no difficulty in disposing of the assignments based upon the motions to dismiss and to file a second demurrer. Upon the former hearing we held the demurrer not well taken, the contention thereof being that the bill did not make or state such a case as entitled the complainant in a court of equity to the relief prayed, or to any relief. The practice of moving to dismiss bills for want of equity does not obtain in this State, but even in Alabama where it does, it is confined to entire want of equity all amendable defects being treated as amended and should be made before demurring. In view of the decision of this court that the bill contained equity, it may well be doubted, if the circuit court had power to entertain the motion.

The second demurrer tendered to the unamended bill went to the whole bill as did the first, and we see nothing to bring this without the general rule that such demurrers are not allowable. 6 Ency. Pl. & Pr., 429; Gen. Stats. § 1873.

Another practice point may be here disposed of. The complainant in setting down the plea for argument, incorporated in the motion an argument to show specifically the theory upon which he contended the plea insufficient. No new matter was set up, merely a restatement of some allegations of the bill. The object of this departure from the regular orders being as stated on the argument before us, to save clearly the federal question. We see no need for this, but at the same time we see no possible harm to the defendants in being placed in advance of the argument in possession of the position to be taken by the complainant, the addition to the record in the way of costs being trifling and negligible.

We come now to the serious contest between the parties as to the sufficiency of the pleas.

That of the defendant Hull rested upon the judgment in ejectment recovered by him in the United States circuit court for the Southern District of Florida in March, 1906, in an action commenced on November 28, 1905, against the Port Tampa Phosphate Company and one N. B. Childs, its agent in possession of the lands. The bill of complaint alleged that on November 27th, 1905, one day before the action began, the Port Tampa Phosphate Company, a Massachusetts corporation, but whose principal assets consisted of these Florida lands,, was adjudged a bankrupt by the United States District Court for Massachusetts, upon an involuntary petition in bankruptcy filed against it on November 9th, 1905; Burr who qualified as trustee on December 27, 1905, was not made a party to the action in ejectment and did not appear therein.

Admitting that the bankrupt is bound by that judgment, is it a bar to the right sought to be asserted by the trustee? We premise that in this State ejectment is a possessory action whereby without the common law fictions, title to real estate is tried and determined, and further that under the bankruptcy statute, the trustee is vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt * * * to all * “ * property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him, and further that the Port Tampa Phosphate Company’s interest in this land was subject to voluntary or involuntary transfer or sale.

We are dealing then with a case where possession of res is involved and'where the res is essential to the action. The judgment adjudicates the title and awards possession, whereas by virtue of the adjudication in bankruptcy the title of bankrupt at once by operation of 1 aw passes to the trustee then or thereafter to be appointed. The declaration in ejectment alleges and must allege that the defendant, the bankrupt, is in possession of the land, yet its possession was under its title which had been divested and passed with this divestiture to the court which had actually asserted its undoubted jurisdiction. The bankrupt if not dead, when the action in ejectment began was at least comatose. Its title had been taken by the bankruptcy court and its assets being there administered, it cannot be conceived how a judgment rendered against it in such strait, can estop the trustee who takes not by assignment pendente lite but by operation of the law as of a time when no action was pending.

The defendants, Prairie Pebble Phosphate Company and Savannah Trust Company, filed separate pleas, seeking to set up the defense of tona fide purchasers. Their rights were all acquired subsequent to the adjudication in bankruptcy. These pleas are quite lengthy and might be criticized for technical inaccuracies, but we think it clear they failed either upon the ground that they disclose a sufficient knowledge of facts to have placed upon them the duty of further inquiry as to the exact status existing between her and the Port Tampa Phosphate Company, or upon the grounds that the property they sought to purchase was in custodia legis.

The amendment to the Bankruptcy Act of 5 February, 1903, directing the trustee to file a certified copy of the decree of adjudication in the office where conveyances of real estate are recorded, in every county where the bankrupt holds real estate not exempted from execution, etc., is directory only and does not affect the principle that the bankrupt’s title passes by operation of law to the trustees in bankruptcy as upon the date of his adjudication. Ward v. Hargett, 151 N. C., 365, 66 S. E. Rep., 340.

The orders appealed from are affirmed.

Whitfield, C. J., and Shackleford, J., concur;

Taylor, Hocker and Parkhill, J. J., concur in the opinion.