
    Viader v. Quiñones.
    Appeal from the District Court of Humacao.
    No. 88.
    Decided December 21, 1904.
    Mortgage — Foreclosure ’Proceedings. — It is not optional with the execution creditor to choose the procedure under which to recover credits guaranteed by mortgages, but he must follow the provisions of the Mortgag'e Law and the Regulations for the execution thereof, which provide for and regulate the procedure for the recovery of such credits, and which repealed the provisions of the Law of Civil Procedure on this subject.
    
      The facts are stated in the opinion.
    
      Mr. Alvarez Nava, for appellant.
    
      Mr. Texidor, for respondent.
   Ms. Justice MacLeaey

delivered the opinion of the court.

This is a suit brought by Mr. Viader, as the assignee of a certain mortgage debt, against Mr. Quiñones de Laza, as the mortgagor, for the recovery of a balance due upon said mortgage amounting to $480 principal and $288 interest, aggregating $768.

Proceedings were begun by attachment, under the Code of Civil Procedure, to foreclose the mortgage on a house and lot in Caguas belonging to Mrs. Quiñones de Laza, and judgment was rendered against her on June 10, 1902, dismissing the exceptions taken by her as defendant, and commanding that the proceedings be prosecuted until the property 'attached should be sold to the highest bidder and from the proceeds thereof full payment made of the principal, interest, and costs.

From this judgment an appeal was taken to this court; Attorney Alvarez Nava representing the appellant, and Attorney Jacinto Texidor representing the appellee.

Five objections were made to the judgment of the court below as a basis of the appeal. But in view of the fundamental error committed, it is only necessary to consider one of them.

The plaintiff in this case contends that his claim being a debt secured by a mortgage he had the right to proceed under the Mortgage Law, or under the Code of Civil Procedure, as he might elect.

This court has heretofore decided that 'where a debt is secured by a mortgage on real property, and the mortgagee seeks to foreclose and render the property subject to the payment of his credit, that he should pursue the procedure laid down in the Mortgage Law, under the requirements of article 168 of the rules for the enforcement of the Mortgage Law. In an opinion prepared and delivered by the Chief Justice, this conrt says:

“Concluding that the basis of this action is the collection of a mortgage debt constituted by a public deed of the 14th of October, 1899, when the Mortgage Law, which establishes and regulates the procedure for the collection of such debts, was already in force; the procedure employed for said collection appears to be defective and ineffectual, inasmuch as the provisions of the Law of Civil Procedure, which the plaintiff has utilized for the enforcement of his rights, are not applicable in such a case, if there be a law of later date repealing the same, as occurs in the present action; since the election of the procedure cannot be left to depend to the option of the party.”

See the case of Pizá Hermanos contra Mariano Alfaro Días (ante 105), rendered herein on June 3,1904, in an appeal taken from a judgment of the District Court of Ponce.

"We see no reason to reverse that decision, and in accordance therewith we must hold that the judgment in this case should be reversed and the case dismissed without prejudice to the rights of the plaintiff to* proceed for the collection of his claim nnder the provisions of the Mortgage Law.

So ordered.

Chief Justice Quiñones and Justices Hernández, Figue-ras, and Wolf concurred.  