
    Adela Bou Alvarez, Appellant, v. Registrar of Property of San Juan (First Section), Respondent.
    No. 796.
    Submitted December 18, 1929.
    Decided February 4, 1930.
    
      ■‘'A. Acosta Velarde, for appellant. The registrar appeared by brief.
   Mr. Chief Justice Del Toro

delivered the opinion of the ' court.

’ A conveyance ' from marshal Eduardo' Urnitia to Adela ' Bou de Alvarez ivas presented for record in the Registry of

• Property of Sail Juan, and the registrar refused to record it ' “because the property sold is recorded in the name'of Agus-Í tin'Hernández'*Mena^ ¿’person other than theMeféiidants.”

! It appears :thrit trié purchaser, 'Adéla Bou, ’ had instituted ¡ ■foreclosure proceedings to'recov'ér’froto Ampard'Escapa arid 'Alfonso Ocasio the snm of $2,500, secured by ¿'mortgage on . a certain property located in Santurce, Sari’ Juan.

Not only- was* the- required registrar ’s' certificate- isteuéd, ¡ preparatory- to -commencing the summary 'foreclosure pro-

oeédings - instituted] -but' also” am attachment was 'levied • on the ¡-mortgaged' property and- rec'ordéd in 'the'registry,- to' 'Secure

• ■‘the effectiveness of ’the judgment that might'be rendered.

‘ Subsequent to the issuance of 'that' certificate' and after the ' foreclosure, proceedings had commenced - and'notice of, the attachment entered, theré was recorded in the registry a sale of the mortgaged property made by the mortgagors to Agus-tín Hernández Mena.

The said proceedings were prosecuted to judgment, and the mortgaged property was sold at auction by the marshal to the foreclosing creditor for $2,000. As we have already stated, when the corresponding deed was presented in the registry, the registrar refused to record the' conveyance on the ground that the property sold was already recorded in the name of a person other than the mortgage debtors.

The foregoing would seem sufficient to conclude that, in accordance with the doctrine recently laid down by this court in Arroyo v. Zavala, y Crus, ante, p. 257, Agustín Hernández Mena is not the “other person” (persona distinta) who, under the law, may preclude the record sought.

However, a purchaser of real property or rights involved in litigation.is subject to the provisions of section 71 of the Mortgage Law, which reads as follows:

“Real property or property rights against which cautionary notices have been entered may be alienated or encumbered, but without prejudice to the right of the person in whose name the cautionary notice was entered.

' “If the real'property'or rights against which cautionary notices have been entered in accordance with the provisions of subdivisions 2 and 3 of section 42 should be awarded to a plaintiff under judgment rendered in an action brought by him,.or if it should become necessary to advertise them for sale at auction, the person, who may have acquired such property or rights during the litigation shall be notified of the award or advertisement.

“Such notice shall be served on motion of the plaintiff after the final judgment of award shall have been rendered or before the sale in the compulsory proceedings takes place, following the provisions of articles 260 to 269-of the Law of- Civil Procedure in force in the Antilles and articles 244 to 253.of that in force in the Philippines.

“After seryice, of the notice referred to in the foregoing paragraph, the person notified may release the property in question upon payment of the amount mentioned in the entry, as principal and cost's, although it is not to be' understood that he is obliged to pay a larger sum for costs than that .mentioned in the .entry., Should he fail to do so within 10 days, the record of his ownership shall be canceled in the registry, as well as any other records which may have been made after entry of the cautionary notice, to which end the'proper order shall be issued to the • registrar of property on ■motion of -the person to whom the property was awarded or of the purchaser thereof. ,

. “If the.conveyance made and recorded during the action, relates to an estate the ownership of which had been claimed by. an action of which a cautionary notiee had been entered, in accordance with subdivision 1 of section 42 of this law, a certified copy of the final judgment in favor of the ownership of the plaintiff shall be a valid title1 for its cancellation by virtue' thereof. '

“Final judgments imposing the penalty of interdiction, or declaring the disability of a person to administer- his- property; -or modifying his civil .capacity with .reference to the.free disposition-of. his property, shall be sufficient authority for the cancellation -of records of conveyances made during the course of the proceedings by the person who has been declared incapacitated, provided a cautionary notice of the complaint upon'which the'order' was‘based shall have been entered in accordance with the provisions of 'subdivision 5 of section 42. ”

■For the purposes of the registry, there is no doubt that any record- made in the name'of such purchaser pendente' lite becomes'subject'to the condition that it shall 'not prejudice a right previously recorded in favor of another person. But, under the said, section, .the. purchaser during the litigation is entitled to release the. property affected by such prior record upon.payment of the amount of the -encumbrance.-- It is the plaintiff’s' duty — a duty which devolves upon any grantee sub-rogated to the rights of said plaintiff — to notify the purchaser pendente lite,-so ■ that 'the -latter- may release the property within the statutory period- of' ten'days-by payment of the recorded encumbrance. . In the-absence of such-notice, the cancellation of the record made in favor of - the-purchaser pendente lite can not-be demanded,- and without this- cancellation an award or conveyance made in pursuance -of the. public sale can not be recorded,-'since two antagonistic and conflict ' ing records of ownership in regard ’to the same’property can not coexist. ■ . '

The marshal’s deed herein having been presented in the registry at a time when the property appeared recorded in the name of'the person.who purchased'it during a litigation involving such property, the registrar applied section 20'of 'the Mortgage Law' and refused the record. In Our’opinion :"hé has no other choice for-the present. ’ If'thé petitioner or plaintiff in the proceedings wherein the award was made desires to enforce his rights as a grantee, he should follow the procedure prescribed by section 71 of the Mortgage Law and move for service of the required notice. ' If the' purchaser ■'pays within the statutory'period, the plaintiff is hot pr'e’ju-^'diced; if "he fails to do so, his record is'Cánceléd and the ''bar td registration is removed.

In Díaz Mediavilla v. Registrar, 39 P.R.R. 107, 1.10, in referring to the above-quoted section of the Mortgage Law, this court said:

“The first paragraph provides that a right annotated can not 1 be prejudiced by a subsequent' record, Here thé executing creditor niade an annotation of the'commencement of his summary suit. He thus notified all the world of his prior right and anyone who attempted to make a record thereafter did so at the risk of the prop- ' erty being sold. Such subsequent purchaser or creditor was in no i;;sense a third* "person!'and it was his duty to follow the result of ■ thé-mortgage proceeding. ’ Thére 'is hó'doubt in this case that both “thé sale to' Tellado'.a'nd the attachment’were' recorded'subsequently ' to the initiation of'the mortgage proceeding' and its'due annotation ■ in the registry.”

The-* principles ‘involved’ in ’the cited statutory provisions '’ tveré tbits'"enunciated’'bpl without relieving the plaiiitiff — Who 'ill the cited'case'made’an annotation of the commencement'of

’■‘the'foreclosure 'suit — of'his‘obli'gatibn’with respect to the1 re-“bufréd" notice. • 'And web are1-inclined ’to. hold! that ’such duty deVólves' típOií’ Muy1 'foreclosure ‘jittfcM'ser who' "is !iáühr;Ogát!d %0 !the.righto’of .the .executing Creditor... ■ .

In view of the wording of section 20 of the Mortgage Law we are constrained to affirm, the, decision of the registrar refusing the record; and it .is so adjudged.

Mr. ,Justice, Hutchison concurs .in the result.  