
    Luiña Hermanos & Co. Et Al, v. Registrar of Property.
    Appeal from a judgment rendered by the District Court of San Juan.
    No. 3.
    Decided May 7, 1900.
    Heirs. — Heirs must record in their own name, in the Registry of Property, real estate or property rights recorded in favor of their ancestors ; and so long as they fail to comply with this formality deeds executed hy them, transferring or incumbering such real estate or property rights cannot be recorded or entered in the Registry of Property.
    Powers of managing partners. — Sabina Bozzo contributed to the firm of Luiña Hermanos <fc Co., fourteen thousand pesos represented by the interests which she had in two city properties, situated in San Juan, — it feeing stipiilated in the instrument of constitution of the said firm, that such contribution should later be substituted by the whole value of one of the said properties, Sabina Bozzo agreeing to procure the award of the same to herself, in the settlement of her husband’s estate. I-Ield that in order to carry out this agreement the managing partner of the said firm had a right to intervene in the said testamentary proceedings, and enter into, with the other interested parties, such agreements as might tend to carry out the purposes thereof, and to convey to Sabina Bozzo the shares contributed by her, and again to acquire them in such manner as may have been agreed upon.
    Undue Incumbrance. — When the award of properties of an estate is made, subject to an obligation on the part of the grantee to pay the debts of a property, in such manner as may have been agreed upon in the deed of partition, the respective rights of the parties interested in the payment of such debts, are sufficiently guaranteed, and a clause contained in the deed prohibiting the alienation of properties awarded, constitutes an undue incum-brance, but it does not imply the nullity of the deed nor of the obligation therein contained, and does not prevent the admission of the document to record in the Registry of Property.
    STATEMENT OE THE CASE.
    Manuel Luiña Villamil, managing partner of the mercantile firm of Luiña Hermanos efe Co., and attorney in fact of Doña Sabina Bozzo, widow of Don Venancio Luiña, together with Don Gumersindo Suárez, attorney in fact of Don Ser-vando, Doña Jovita, Doña Matilde, Doña Prudencia, Doña Justa and Doña Julia Picó, and also the theirs of Doña Florentina Picó, by public instrument dated the 1st of July, 1899, executed a partition of the properties devised by Don Venancio Luiña in his codicil of March 9, 1899, in which partition all of the assets inventoried were awarded to the said widow, the assets consisting of two houses situated on Fortaleza St., in San Juan, numbered 49 and 51, and recorded in the Registry of Property in the name of the Succession of Luiña, and in the name of the firm Luiña Hermanos efe Co.; a promissory note executed by Don Ser-vando Picó, to the order of Gumersindo Suárez with the deceased Don Venancio Luiña as surety thereon, which note was already due; and the assets shown by the balance struck by the said firm, in which the said Don Venancio Luiña appears to have intervened; it being stated in the adjudications that the widow might dispose of all of the said assets under certain conditions set forth in the instrument. Upon the presentation of the said instrument in the Registry of Property of San Juan it was denied admission to record, because the interests which Doña Florentina Picó had in the properties were not recorded in favor of her heirs; because Don Manuel Luiña as manager of the mercantile firm of Luiña Hermanos & Co., was not authorized to convey to Doña Sabina Bozzo the shares in the said properties which she contributed to the said mercantile firm and which were recorded by it; because the instrument of partition is ambiguous, since in awarding the house to Doña Sabina Bozzo, with the obligation to make the payments stated in the deed, it is afterwards incidentally set out therein that the said firm will become the owner of the whole of the properties as soon as the payments mentioned are made; and because the agreement which the said instrument contains not to alienate the properties referred to, is void. From this decision of the -Registrar the parties in interest took an appeal to the District Court of San Juan, which bji order of March 26, 1900, held that the said deed of partition was entitled to admission to record, and ordered the Registrar of Property to proceed to record the same, from which decision an appeal was taken by the Registrar to the Chief Justice of the Supreme Court.
   Mr. Chief Justice Quiñones,

delivered the following opinion:

A hearing having been had in this appeal taken by Don Manuel Luiña y Villamil as managing partner .of Luiña Hermanos efe Co., and Don Gumersindo Suárez in his own right and representing the heirs of Don Venancio Luiña, from the refusal of the Registrar of Property of this capital to record the instrument of partition of the properties left on the death of Don Venancio Luiña, which instrument was executed in Bayamón before the Notary Don Tomás Valldejuli y Calatreveño on the 1st of .July of the year last past, and which appeal is pending before this office by virtue of an appeal taken by the Registrar of Property from a decision rendered by the District Court of San Juan on the 26th of March last, by the terms of which decision the said Registrar is ordered to proceed to record the- said instrument of partition:

Accepting the statements of fact set out in the decision appealed from:

In regard to the first point on which the refusal of the Registrar of Property to record the instrument of partition in question is based, that there is no record in the Registry of Property, of the respective interests which the heirs of Doña Florentina Picó had in the houses, belonging to the estate of Don Venancio Luiña, numbered 49 and 51 on Fortaleza St., in this city, the instrument of partition which gives rise to the present appeal, by the terms of which instrument the attorney in fact of the deceased father; representing the said heirs, conveys to the widow/Doña Sabina Bozzo,-the shares or interests in the said property which are recorded in favor-of the deceased mother, Doña Florentina Picó, in accordance with the provisions of Article 20 of the Mortgage Law, is not entitled to admission to record in the Registry of Property; and although documents purporting-to correct the defect were attached to the papers in the appeal, in reality the defect is not corrected, since that formality does not appear to be carried into effect in the Registry of Property.

In respect to the second ground for the refusal, that is to say, the incapacity of Don Manuel Luiña as managing partner of the mercantile firm Luiña Hermanos & Co., to convey to Doña Sabina Bozzo the shares which she contributed towards the capital of the said firm,.such interests in the property being recorded in the name of the said firm Luiña Hermanos & Co., and it having been agreed'in the contract constituting said firm that the fourteen thousand pesos which Doña Sabina Bozzo contributed to the firm, as a silent partner therein, were understood to consist of the interest which she had in the houses numbered 49 and 51 on Fortaleza St., in this city, in accordance with the provision of the last will and testament of her deceased husband, Don Venancio Luiña Villamil,, and that when the estate of the said husband should be settled the form of the said contribution would be modified, it being substituted by the full value of - the house numbered 49 on Fortaleza St., for which she should endeavor to obtain the adjudication to herself of the whole of that property in the testamentary execution, in part payment of the interest which she had in the estate, the difference between the value of that property and the amount agreed upon to be paid in cash, or in the share which might be awarded her in the last balance of the firm of Sobrino de Luiña efe Co.; it is evident that in order to carry into effect this agreement the managing partner of Luiña Hermanos <fe Co., Don Manuel Luiña Villamil, could intervene in the instrument of partition of the estate of Don Venancio Luiña and execute therein, with the other parties in interest, such an agreement as would tend to the realization of that purpose, and therefore, could convey to Doña Sabina Bozzo the shares which the firm had in the said two houses numbered 49 and 51 on Fortaleza St., and subsequently acquire them in such manner and under such conditions as are provided for in the instrument of partition itself.

With respect to the ambiguity to which the Registrar refers in his decision, although in the inventory of Doña Sabina Bozzo’s share, it is stated that all of the inventoried assets were awarded to her, including the two houses numbered 49 and 51 situated on Fortaleza St., on the condition that the debts owing on said property should be paid, she being restricted from alienating the said properties- so long as the said debts were not paid; and further on among the final explanations contained in the said instrument, it was stated that the partition and award of the properties having been made, and the contribution made by the widow to the firm Luiña Hermanos efe Co. being made regular, and the said firm, on the payment of the debts indicated, having acquired the ownership of the whole of the said properties, it is understood in view of the matters set out in the said instrument of partition, and especially the ageeements and conditions set out in the document constituting the firm of Luiña Hermanos & Co., that the reason for the award having been made in the manner in which it was effected, being no other than to make regular the contribution which had been made by the silent partner, Doña Sabina Bozzo, subject to an adjustment of her interests in the value of the two houses belonging to the estate of her deceased husband, by an award to her of the total value thereof, the said firm thus becoming the absolute owner of the said houses, upon the payment of the debts in the manner agreed upon; a point upon which there seems to be no doubt as to the intention of the contracting parties.

With respect to the agreement contained in the deed of partition not to alienate the property, it being necessary to record an award of real estate which is subject to an obligation to pay the debts owing on the property in the manner set out in the deed, the rights of the parties interested in the payment are sufficiently guaranteed by the provisions of Article 23 of the Mortgage Law, and therefore this agreement contained in the 'deed is an undue -incumbrance which should be entirely ignored as in the case of an agreement not to mortgage for a second or third time the same property mortgaged; but it does not render void either the deed or the obligation therein contracted, nor is it therefore a defect which would prevent its admission to record in its proper turn in the Registry of Property.

In view of Articles 20 and 23 and Paragraph 4 of Article 107 of the Mortgage Law, and Article 35 of the instructions in regard to the manner in which public documents subject to record in the Registry of Property should be drawn :

The decision of the Registrar of Property, refusing to record the deed of partition under consideration in this appeal, is affirmed insofar as the two first grounds thereof are concerned, the same being reversed with respect to the other grounds on which the said decision is based. Insofar as the decision of the 26th of March last, rendered by the District Court of San Juan, conforms hereto the same is hereby affirmed; insofar as it is in conflict herewith it is reversed, and a certified copy of this order will be transmitted to the said Court for the notification of the parties in interest.  