
    Del Toro v. Arambarry et al.
    Appeal from the District Court of Arecibo.
    No. 97.
    Decided April 4, 1904.
    Unlawful Detainee — Tenants.—The ' action of unlawful detainer will lie against tenants who hold an estate without paying rent .therefor, provided that one month’s notice to vacate is previously served upon them.
    Id. — Opposition.—An action of unlawful detainer is not the appropriate proceeding in which to litigate questions relative to the right of the defendants to possess the property involved in the case.
    Costs. — Judgment having been rendered in favor of the plaintiff without special imposition of costs, such decision should not "be disturbed when the plaintiff has not appealed from the judgment or joined in the appeal prosecuted by the defendants.
    STATEMENT OP THE CASE.
    This is an action of unlawful detainer prosecuted in tbe District Court of Arecibo by Juan del Toro y Cancel against Pedro Arambarry and Eamona Cruz, now pending before us on appeal taken by tbe defendants from tbe judgment rendered in said action, tbe appellants being represented in tbis Supreme Court by Attorney Jacinto Texidor, and tbe respondent by Attorney Félix Santoni.
    Tbe aforesaid judgment, rendered on July 29 of last year, reads as follows:
    “Judgment — No. 19. — In Arecibo, July 29, 1903. An oral and public bearing was had in this district court in the matter of an action of unlawful detainer instituted by Attorney Félix Santoni Rodriguez, on behalf of Juan del Toro y Cancel, of age, a fanner, ' .and a resident of Utuado, against Pedro Arambarry and Ramona Cruz, residents of Hatillo, represented in these proceedings by Attorney Simon Large Aquilúe.
    “On April 20 last, Attorney Félix Santoni, on behalf of del' Toio, filed with this court an action of unlawful detainer against Pedro Arambarry and Ramona Cruz, residents of Hatillo, tenants at suffrance, alleging that in a deed executed in this city, September 7, 1900, Juan del Toro y Cancel acquired by purchase from Joaquín Sánchez Chirino, a two-story house, bearing no number, with a cistern in the court-yard, said house measuring 14 meters, front by 16 deep, and built on a lot in the town of Hatillo, measuring 14 meters front by 24 deep; which house stood on the northern sidewalk of the plaza of aforesaid abolished municipality; bounded on the north, which is the .rear, by common land; on the east, or right-hand side, by Soledad street; on the west, or left, by a * house belonging to Paulina León; that the purchase was effected for the sum of seven hundred and twenty dollars, the vendor conveying to the vendee the title to aforesaid property; and that the defendants Pedro Arambarry and Ramona Cruz are occupying said house as tenants at suffrance, without paying rent therefor, notwithstanding their having been served with notice to vacate and leave the property to be freely disposed of by his client, within the period of one month, which has already expired.
    “As legal grounds he pleaded the provisions of the Law of Civil Procedure with reference to the action of unlawful detainer against tenants at sufferance, and the judgments of the Supreme Court as to the grounds for such action. He concluded with the prayer that the complaint be sustained, with costs against the defendants.
    “The complaint was accompanied by the notarial deed of conveyance of the property to Juan del Toro, recorded in the Registry of Property, and the notices served upon the defendants through the municipal court of Camuy.
    “The parties having been summoned to appear before this district court, Attorney Santoni appeared on behalf of the plaintiff and Attorney Largé on behalf of the defendants; and as the latter contested the facts as set forth in the complaint, the papers were submitted to him for examination. He then stated: That toward the latter part of the year 1893, or beginning of 1894, one Tomás Rodríguez, a resident of what was then the town of Hatillo, who owned an old house in said town, entered into an agreement with Pedro Arambarry, a builder, whereby the latter was to tear down and reconstruct said house, which was in a dilapidated condition. This Arambarry engaged to do and did at cost, and he to furnish the money, upon condition that his personal labor and the amount expended or employed in said work, in every respect, should be reimbursed by Rodriguez, during the whole of December of the said year 1894, which disbursement and work, as specified by Arambarry, could not at that time be made and performed by Rodriguez, owing to his lack of means; that the bargain being satisfactory to his client, he went to work and rebuilt the two-story house, but when the time arrived for a settlement according to stipulation, Rodriguez being unable to fulfill his agreement with Arambarry, it was agreed between them that the former should transfer or convey to the latter his title to the house rebuilt by Arambarry in satisfaction of all the expenses incurred by the latter in the work of reconstruction agreed upon, the amount whereof had been advanced by his client, the assignor failing to execute the deed for reasons beyond the control of Arambarry; that Arambarry, being now owner of .the reconstructed house, with everything contained therein or annexed thereto, has been occupying and possessing the same since 1894, and lives therein at the present time, paying, as such owner since said time, the taxes thereon assessed by the national, insular and municipal governments, and making such repairs in it, that the former old, dilapidated and almost valueless house has been transformed into a new one, nearly one thousand dollars having been expended in said improvements; and that Arambarry has been in possession of said house without interruption of any kind since the time he acquired it, and now possesses the same as rightful owner, and not as tenant at sufferance, his possession dating back about nine years.
    “As legal grounds the defendants cited the provisions of the Civil Code relating to ownership and the perfecting of contracts, the Law of Civil Procedure with respect to procedure, and General Order No. 128 of 1899.
    “The introduction of evidence being ordered, the plaintiff produced a notarial deed of sale with right of reversion of the urban property forming the subject-matter of the action of unlawful de-tainer, executed by Tomás Rodríguez in favor of Joaquín Sánchez, for the sum of one thousand two hundred pesoS, special money, under date of March 7, 1885, and a certified copy of the record of the verbal suit instituted in the municipal court of Hatillo by Ramón Alonso against Pedro Arambarry; 'and the defendants produced a certificate of the Treasurer to the effect that Arambarry had been paying taxes on a house in Hatillo., and a duplicate receipt of taxes on the same house for the second half of the year 1901.
    "The oral trial was had, Juan del Toro Cancel being the only party present, through his counsel, although the defendants had been duly summoned, wherefore the plaintiff waived the interrogatories which were to be propounded to the defendant Arambarry, who had failed to appear. "With the permission of the court, counsel present argued in support of the complaint, after which this judgment was unanimously voted by the judges.
    "In the conduct of this trial the rules of procedure have been observed.
    "Presiding Judge Felipe Cuchí y Arnau prepared the opinion of the court, as follows,:
    "The action of unlawful detainer is based upon the ownership of the property sought to be recovered, and it appearing, from the deed of September 7, 1900, recorded in the Registry of Property of Arecibo, that the plaintiff, Juan del Toro, bought of Joaquín Sán-chez for a certain price the town property occupied by defendants without paying rent, it is evident that his action is perfectly legal and in the institution thereof he has conformed to the provisions of law.
    "The only formality required-of the plaintiff in order to institute an action of unlawful detainer against the defendants was to previously serve upon them one month’s notice to vacate, as prescribed under subdivision 3 of article 1563 of the Law of Civil Procedure when dealing with tenants at suffranee, and the certificate of the municipal judge of Camuy shows that said notice was personally served upon the defendants on the 20th of March last, considerably more than a month prior to the filing of the complaint by the plaintiff, which occurred on the 24th of April following.
    "Even assuming that the allegations made by the defendants in their answer to the complaint, which allegations were not ratified nor proved, at the oral trial, bearing upon their rights to possess the property sought to be recovered, ,were admissible, this is not the proper action for discussing the same, but a declaratory one, according to the procedure prescribed by General Order No. 118 of 1899.
    
      “The nonappearanee of the defendants at the oral trial to continue sustaining their opposition to the claims of the plaintiff, shows that there was no obstinacy in the litigation on their part, and, therefore, no special imposition of costs should be made.
    “In view of sections 356 and 1474 of the revised Civil Code, and articles 371, 1562, 1563, 1587 and 1592 of the Law of Civil Procedure, we adjudge that we should declare and do declare that the action of unlawful detainer was properly maintained, and accordingly condemn Pedro Arambarry and Ramona Cruz to vacate within fifteen days the house occupied by them in Hatillo, belonging to Juan del Toro Cancel, leaving the same to be freely disposed of by the latter, under pain of eviction should they fail to do so, with no special imposition of costs. Pronounced, commanded and signed by us. Felipe Cuchí, Carlos Franco Soto, Otto Schoenrich.”
    Prom the foregoing judgment counsel for Pedro Aram-barry and Eamona Cruz took an appeal, which was allowed; and the record having been forwarded to this Supreme Court after citation of the parties, the appeal was conducted under the proceedings prescribed by law, a day being set for the hearing, which took place without the presence of counsel for appellants and respondent.
    
      Mr. Texidor, for appellants.
    
      Mr. Santoni, for respondent.
   Me. Justice HeeNÁNdez,

after making the above statement of facts, delivered the opinion of the court.

The findings of fact and the first three conclusions of law contained in the judgment appealed from are accepted.

No appeal from the judgment of the District Court of Are-cibo having been taken by the plaintiff in so far as it is understood that no special imposition of costs is made, and the plaintiff not having joined the defendants in their appeal as to this point, the decision thereon must stand in accordance with the law.

We adjudge that we should affirm and do affirm the judgment delivered by the District Court of Arecibo July 29 of last year, with costs of the appeal against the appellants. The record is ordered to be returned to said court, together- with the proper certificate..

Chief Justice Quinones and Justices Figueras, Sulzbacher and MacLeary concurred.  