
    Caloca v. Vilaseca et al.
    Appeal from the District Court of San Juan.
    No. 124.
    Decided April 11, 1904.
    Judicial Administrators. — Judicial administrators have the legal, judicial and actual possession of attached property committed to their safekeeping and custody, and are obliged to perform the duties imposed upon them by law, it being proper, in case of default, to compel them thereto by means of the appropriate legal remedy.
    Injunction — Acts Tending to Violate Property Eights. — The cutting, carrying away and selling wood, as also the destroying of fences, on an estate judicially placed in charge of an administrator, and involved in proceedings in intervention based upon ownership, are acts which constitute a violation of the rights of property which may be held by a plaintiff in intervention with respeet to said estate, and it is therefore proper to prevent the continuation thereof by means of a writ of injunction.
    Unrecorded Titles. — Third Persons — Eight op a Eeal or Personal Character. — The prohibitions contained in article 389 of the Mortgage Law, concerning the non-admission by the courts of unrecorded titles, to the prejudice of third persons, relate to those who possess such character for the purposes of said law, that is, to those who can claim a property right recorded in their favor, and not merely a personal right.
    Executory Action — Intervention Proceedings Based on Ownership. — Decisions rendered in an executory action, of which proceedings in intervention based on ownership are an incident, cannot be invoked in the latter for the purpose of preventing rights claimed' by the plaintiff in intervention from being secured, when said plaintiff relies upon the ground that the property involved in the executory action belongs to him and not to the execution debtor.
    Id. — Eights oe Plaintipp in Intervention — Injunction—Bond.—Until, pror ceedings in intervention are determined, it is perfectly logical and legal that the rights which may be possessed by the plaintiff in intervention should be protected, by preventing, through injunction, the commission of acts tending to impair the same, provided that a bond is furnished to answer for the damages which may be sustained to the interests of other parties.
    Injunction. — Injunction is a remedy designed to prevent a person from doing a certain thing which infringes upon or prejudices the rights of another.
    
      Id- — Bond.—In injunction cases, the amount of the bond should be sufficiently ample to indemnify for losses and damages which may be sustained by the party against whom the injunction is issued, and it is the province of the lower court to determine such damages and to fix an amount which will be sufficient to guard against the same.
    STATEMENT OE THE CASE.
    On August 10, 1903, Attorney Jacinto Texidor, on behalf of Jnan Ignacio Caloca, filed with, the District Court of San Jnan a petition for an injunction based on the ground that acts to his injury were being committed on an estate of which he is the owner, and after certain preliminary proceedings, Associate Judge Frank H. Richmond issued an order which reads as follows:
    “San Juan, Porto Rico, August 20, 1903. In the executory action instituted by José L. Yilaseca against Mrs. Justa García, widow of Rivera, an attachment was levied upon lands situated in the barrio of Sábana Llana, of the town of Río Piedras, composed of 50 cuerdas, more or less, being equivalent to 19 hectares, 65 ares and 30 centares of lands of the second class, the same being level and broken, with natural pasturage, timber and underbrush and some smaller products, and having the following boundaries: On the north, lands of José Dolores López; on the east, the estate Oevera, lands of Pablo Figueroa and Celestino Frida; on the west, the estate Coloca; and on the south, by said estate Coloca. The starting-point consists of an oak tree having some old marks made with a machete, situated on the slope of the hill known as ‘ Cabra, ’ on the right border of the old Trujillo-Alto road,' looking to the west from the place known as ‘Almargra,’ and at the side of which is a stump of carob bean, on which sprouts are at present growing: which said boundary, following a course to the northwest, terminates at the bridge over the brook ‘Estefanía.’ Gavino Mercado was appointed judicial administrator of the attached estate.
    “A complaint in intervention was presented and admitted on behalf of Juan Ignacio Caloca y Cueto, with respect to thirty cuerdas, more or less, included in the land from the bridge of the brook ‘Estefanía,’ following the slough; thence to the Polio tree; thence to the wire fence and to a palm-tree; and thence in a straight line to a granaclillo tree; which constitute the dividing line of the estate of Justa García with that of Caloca, as alleged in the complaint in intervention.
    “When the executory action had reached the stage of compulsory process, this court made an order staying its prosecution, which said order is dated the 4th of the present month of August, and notice of which was served upon the execution debtor and upon the judicial administrator on the 5th of said month of August, and upon the execution creditor, José L. Yilaseca, on the following tenth day of the month.
    11 On the said tenth day of August counsel for the plaintiff in intervention presented a petition to the court, in which he alleged that the administrator had cut wood and had committed other acts, such as breaking down the wire fences which Caloca had set up, and that he had also removed the cattle of Caloca which were grazing on said piece of land and had sent them to the municipal pound, for which reason he prayed for a writ of injunction prohibiting the aforesaid parties from entering upon that part of the estate above described, or from cutting wood or grass thereon, or from pasturing animals or breaking down the wire fences, or from committing any similar act or acts, pending the decision of this complaint in intervention based on ownership.
    “A bond for one hundred dollars fixed by the judge who makes this order was furnished in accordance with section 7 of the injunction law, with Benito Rivera Mojica and Deogracia Yiera y Rodriguez as sureties, which bond was approved as sufficient by the same judge, and on the thirteenth day of said month of August a writ of injunction was issued citing Justa García, José L. Yilaseca and the administrator, Gavino Mercado, to appear, which was done on the 17th of said month.
    “At said hearing Attorney Jacinto Texidor appeared as the representative of the plaintiff in intervention, and Attorney Juan Ramón Ramos on behalf of José L. Yilaseca and of the administrator, Gavino Mercado, who also appeared personally.
    “Upon said hearing Attorney Ramos did not insist upon the adverse party’s ratifying under oath the allegations made, waiving said oath aud admitting forthwith that the judicial administrator had cut two cartloads of wood and broken the wire fence, as in law he had a right to do, and concluded by asking that the injunction be dissolved, with costs against the adverse party; and the plaintiff offered to ratify bis petition under oath, which the judge did not deem necessary in view of the admission made by the other party.
    “At the present time the judicial administrator has the legal, judicial and actual possession of the attached land.
    “The legal effect of the interposition and admission of the complaint in intervention based on ownership is the suspension of the compulsory proceedings in the executory action, with respect to the property involved in the proceedings in intervention, until the decision therein, and when the administrator performs any act other than for the protection of the estate, he thereby does nothing more than to continue and follow the compulsory proceedings instead of suspending them.
    “The cutting of wood, carrying it away, selling it, and breaking the wire fence during the pendency of the suit appear by confession as a specific act which is being committed and which is threatened and is about to be done, and such acts violate the right of property which may be held by the plaintiff in intervention with respect to the property involved in the intervention proceedings, and therefore have the effect of rendering nugatory any final judgment which may be rendered in his favor, but not so the act of removing the cattle of Caloea which may be grazing on said piece of land and sending them to the municipal pound; and it not having been shown that the judicial administrator has any animals grazing thereon, it is unnecessary to make any order with respect to the matter.
    “All judicial administrators are obliged to comply with the law, and when they fail to do so and violate the rights of third persons, the legal remedy granted by law to any injured party will lie against them.
    ‘ ‘ Having examined article 1533 of the Law of Civil Procedure, and sections 2, 3, 4, 5 and 8 of the injunction law, it is ordered and enjoined that, until the determination of these proceedings in intervention, neither Justa García, widow of Rivera, nor José L. Vilaseca, nor Gavino Mercado, the judicial administrator appointed in the execu-tory action instituted by the one 'against the other, nor their agents or attorneys, cut, sell or carry away any wood, break down the wire fence or maintain it in a broken condition, or commit any similar act, on the land described in the second finding of fact of this writ of injunction, such as pasturing animals thereon. The bond given is ordered to be ratified and is declared to be in force until further order of the court. And it is so ordered and signed by the judge making this order, in the exercise of the power granted by section 2: of the injunction law. I certify: Frank EL Richmond. — Luis Méndez, Yaz.”
    Attorney Juan E. Eamos, on behalf of José L. Yilaseca. and of the administrator, Gavino Mercado, requested, on. the grounds set forth in his petition of the 29th of August of the previous year, that said decision be revised and sanctioned by the district court in banc, which motion was opposed by the attorney of Juan Ignacio Caloca, to whom the same was referred.
    The district court in banc made an order reading as follows:
    “San Juan, Porto Rico, October 1, 1903. Attorney Juan R. Ramos, on behalf of José L. Yilaseca and Gavino Mercado, the former being the execution creditor and the latter the judicial administrator of the estate upon which an attachment was levied against the execution debtor, Justa Garcia, made application, in a motion presented on the 31st of August, for the revision-of the order made on August 20 by the associate judge of this court, Frank H. Richmond, issuing an injunction against Justa García, Gavino Mercado and José L. Yila-seca, which directed them to refrain, until the determination of the intervention proceedings based on ownership of part of the attached land,= instituted by Juan Ignacio Oaloca y Cueto, from cutting wood on said land involved in the intervention proceedings, from breaking down the fence, pasturing animals, or committing similap acts thereon, basing his petition upon the ground that injunctions are not granted in favor of the defendant; that they are likewise not granted against judicial decisions, and that therefore Mercado cannot be prohibited from exercising the powers of judicial administrator of the attached property conferred upon him by the court; that in said order compulsory proceedings are confounded with acts of administration of the judicial administrator; that it has not been shown' that the removal of wood and the breaking of the wire fence took place on that part of the estate involved in the intervention proceedings; that the writ of injunction violates the property rights of the execution debtor, Justa García; that the latter may sell the estate and tbe purchaser is not bound by the injunction; that as the proceedings in intervention involve a part of the estate, the compulsory proceedings are suspended as to the whole estate; and that the proceedings in intervention are founded upon an unrecorded title.
    ' ‘ The motion for revision having been referred to the plaintiff in intervention, the petitioner for the injunction, he made report thereon maintaining that the order in question was properly made.
    “The defendant, at the hearing upon this injunction, signified his acceptance of the facts alleged by the plaintiff in intervention in his petition, in which reference is made to the cutting of wood and the breaking down of the wire fence, not on the whole of the estate upon which Yilaseca levied an attachment against Mrs. Garcia, but upon the part thereof to which Caloca claims ownership.
    ‘ ‘ Owing to the disqualification of Substitute Judge Acuña, the court could not be convened with three judges until the 28th of the present month, when Judge García Yeve took part in the hearing of the case.
    “The reasons adduced by the moving party with respect to the suspension of the compulsory proceedings and defects of title, apart from their impropriety as the basis of a motion for revision, cannot be taken into consideration because the prohibition contained in article 389 of the Mortgage Law, concerning the non-admission by the courts of unrecorded titles to the prejudice of third persons, refers to those who really possess that character for the purposes of said law, that is, to those who may invoke a recorded property right in their favor, and not to those who can only show a purely personal right; and for the further reason that the compulsory proceedings should be suspended when a complaint in intervention based on the ownership of the whole or a part of the attached estate is interposed and admitted.
    “The decisions rendered in the executory action of which the intervention proceedings are ■ an incident are based upon the supposition that the ownership of the attached property resides in the execution debtor, Mrs. Garcia, for which reason the decisions rendered therein cannot be invoked so as to prevent the rights claimed by the plaintiff in intervention from being secured, the same being based upon the diametrically opposite supposition that he is the owner of a part of the attached property.
    “Until the court, after having heard the evidence and the allegations of the parties upon the merits of the question, has decided tbe conflict between the rights claimed by the execution creditor and debtor on the one hand, and the plaintiff in intervention on the other, it is perfectly logical and legal to protect such rights as the plaintiff in intervention may possess, by preventing the property right claimed by him from being impaired, inasmuch as he has furnished a sufficient bond to answer for any damage which may be suffered by the interests of the other parties.
    “The plaintiff, in intervention is a'plaintiff and the proceedings in intervention are a pending action, during the course of which an injunction may be issued, to prevent any person from committing acts to the detriment of the rights of the plaintiff.
    ‘£ The allegation with regard to the failure to prove the cutting of wood and the breaking down of the fence, on the parcel of land involved in the intervention proceedings, cannot be sustained for the reasons set forth in the third finding of fact.
    “Having examined the law authorizing injunctions, the motion to revise the order in question is denied, with costs against the moving party. So ordered, directed and signed by the court. I certify: Frank H. Richmond, José Tous Soto, Angel Garcia. Before me, Luis Méndez Vaz.”
    The said attorney Juan R. Ramos, as counsel for José L. Vilaseca, appealed .from the foregoing orders, and the appeal having been allowed, after a citation of the parties, the record was sent up to this court, where the former appeared in the capacity in which he appealed, Attorney Texidor appeared on behalf of Juan Ignacio Caloca, and Attorney José C. Ramos on behalf of Justa García, who fulfilled the requirement of examination of the record and presented oral arguments on the day of the hearing, when each of the parties pleaded such facts as he deemed conducive to his rights, Attorney Juan R. Ramos declaring, in the capacity in which he appeared, that if the injunction should be sustained the bond furnished by the adverse party should be increased', which motion agrees with the statement “that the same was small,” made by him at the verbal appearance made on the 17th of August of the previous year, and which is found at folio 16 et seq. of the record.
    
      
      Mr. Ramos (Juan R.), for appellant.
    
      Messrs. Texidor and Ramos (José G.), for respondents.
   Mr. Justice Figueras,,

after stating the foregoing facts, delivered the opinion of the court.

The findings of fact and conclusions of law of the order of October 1, of the previous year, and substantially those of fact, and the first, third and fourth conclusions of law of the concordant order of the 20th of August of said year, are accepted.

Injunction being a remedy to prevent the doing of a certain thing which infringes upon or prejudices the rights of a person, it is undeniable that the one obtained in the present case, which, owing to the summary character which is peculiar to it, has in its favor brevity in the proceedings, will lie.

Although the propriety of the writ in the present case cannot be ignored, the fact should also be taken into consideration that both Justa García and Juan Ignacio Caloca are litigating, by means of proceedings in intervention, the ownership of a part of the attached estate, and this gives rise to the idea that right may be declared in favor of the former, and then the bond of one hundred dollars may be insufficient to make indemnity for the damages caused by the prohibition, which dangek is foreseen by section 12 of the injunction law, and the court before which the claim is made and the evidence submitted is the one to determine whether there will be future damage and the amount which .should be provided against.

Having examined the provisions of rule 63 of General Order No. 118, series of 1899, the orders appealed from are affirmed-, and it is held that the writ of injunction applied for by Juan Ignacio Caloca was properly issued, and the right reserved by section 12 of the injunction law is reserved to Justa García, widow of Bivera, without special imposition of costs.

Chief Justice Quiñones and Justices Hernández and Mac-Leary concurred.

Mr. Justice Sulzbacher dissented.

Dissenting Opinion of

Mr. Justice Sulzbacher.

I am unable to concur with the majority of the court, because the plaintiff has an adequate remedy at law. In addition to this, although in his petition he alleges irreparable damage, he does not state how it would be so. The district court required a bond of one hundred dollars, and the defendant’s motion to increase the bond was not granted, hence the court was satisfied that all damage which could result to the plaintiff would be that sum, and the pleadings are absolutely silent as to the defendant’s insolvency.  