
    Argueso v. Müllenhoff & Korber.
    Appeal from the District Court of Humacao.
    No. 98.
    Decided December 22, 1903.
    Competency — Action op Nullity — Personal Actions. — With the ’ exception of the cases of express or implied submission in personal actions,.the competent judge shall be that of the place -where the obligation is to be performed, and in his absence that of the domicile of the defendant or of the place of the execution of the contract, at the election of the plaintiff, in the cases mentioned in paragraph 1, article 62 of the Law of Civil Procedure.
    
      Personal Action. — An action for the annulment of certain clauses of a mortgage and for general liquidation of accounts is a personal action.
    Id. — Claims oe the Debtor or Third Parties in Possession. — The provision of article 170 of the Eegulations for the execution of the Mortgage Law in matters of competency, must be construed in connection with article 175 of said Eegulations, according to which all actions that may be brought by ' the debtor, as well as by third parties in interest and any other interested persons in a summary proceeding, with the exception of those mentioned in the same law, should be disposed of in a proper final trial and the competency to take cognizance of this aetion shall be determined by the usual rules.
    STATEMENT OP THE CASE.
    This case was prosecuted in the District Court of Humacao by Manuel Argueso y Flores and Ernestina Frías y Noya, against Müllenhoff & Korber, for the nullity of certain clauses of mortgage deeds, general liquidation of payments and other matters, which case is pending before us on appeal taken by the plaintiffs from the decision of said court upon a question of jurisdiction, the party appellant being represented by Attorney Eafael López Landrón, and the respondent by Jacinto Texidor, Esq.
    On the 4th of May, 1903, Manuel Argueso y Flores and his wife Ernestina Frías y Noya, brought a declaratory action in the District Court of Humacao, against the mercantile firm of Müllenhoff & Kober of this city, praying that a final judgment be rendered, ordering among other things, that the errors in amounts be corrected which yrere committed by duplication of interest charges in the mortgage deeds Nos. 81 and 82, executed May 10, 1902, by aforesaid firm and the plaintiffs, before Notary Herminio Díaz Navarro, constituting encumbrances in favor of the defendants, upon the Central Estate “Ingenio,” situated in barrio “Aguacate,” within the municipal district -of Tabucoa, belonging to aforesaid plaintiffs 5 that certain clauses of said deeds be annulled; that a general liquidation of the mortgages and accounts current carried between the parties for the preservation and development of said estate be made, and that snob cancellations as might be proper be effected.
    The aforesaid complaint was admitted, and upon summoning Mnllenhoff & Korber to appear for the purpose of answering the same, they applied to the District Court of San Juan for a writ of inhibition against the Humacao Court, which request was granted, the former issuing a writ enjoining the latter to abstain from taking cognizance of the case, whereupon the Humacao Court by an order dated August 13, deferred to the said District Court of San Juan. From said order the plaintiffs took an appeal and the record was forwarded to this Supreme Court for' the decision of the appeal.
    The appeal having been perfected, after the record was. delivered to the parties and after disposing of an application for a consolidation, a day was set for the hearing, which took place on the 11th instant, both parties being present and arguing the case.
    ilfr. López Landrón, for appellants.
    
      Messrs. Díaz and Texidor, for respondents.
   Me. Justice MacLeaey,

after making the above statement of facts, delivered the opinion of the court as follows:

Under paragraph 1 of article 62 of the Law of Civil Procedure it is provided that with the exception of the cases of express or tacit submission in personal actions, the competent judge shall be the one in the place where the obligation is to be performed, and in his absence, that of the domicile of the defendant or of the place where the contract was executed at the' election of the plaintiff, in the case mentioned in aforesaid paragraph.

The action prosecuted by Manuel Argueso Flores and his wife, Ernestina Frías Noy a, having reference to the annulment of certain clauses of mortgage deeds Nos. 81 and 82, and the general liquidation of accounts and other matters, is a personal action; and even were it not so, the express submission of the plaintiffs is evident; and the provision of article 170 of the Regulations for the execution of the Mortgage Law to the effect that in proceedings for the collection of a mortgage debt or its interest “the judge of competent jurisdiction shall be the judge of the place in which all the property mortgaged is situated, no change of venue being admissible, ’ ’ cannot be alleged in opposition, inasmuch as said provision must be applied in connection with article 175 of the same Regulations, which says that aside from the cases enumerated therein, ‘ ‘ all other actions that may be brought by the debtor, as well as by the third parties in interest, and other interested persons, including those regarding the nullity of the title or of the proceedings, or regarding the lapse, constitution, extinction, or amount of the debt, shall be disposed of in the proper proceeding, without ever causing a stay of the proceedings in an executory action.” The question of jurisdiction to take cognizance of this declaratory suit shall be determined by the usual rules.

For the reasons set forth the San Juan Court has jurisdiction to take cognizance of the case at bar, and therefore the order made on August 13 by the District Court of Humacao, inhibiting itself from taking cognizance of aforesaid suit is correct and in conformity with the law.

We adjudge that'we should affirm the order made by the Humacao Court on the 13th of August last, from which this appeal is taken, and impose costs upon appellants. The proper certificate is ordered to be issued to the District Court of Humacao, and the record sent up by said court returned.

Chief Justice Quiñones and Justices Hernández, Figueras and Sulzbacher concurred.  