
    Criado v. Battistini.
    Appeal from the “Audiencia” of Porto Rico.
    No. 24.
    Decided February 18, 1903.
    Appeal in Cassation. — In addition to the eases provided for by the Law of Civil Procedure, an appeal in cassation also lies for error in the consideration of proof of whatever kind, this being applicable to the testimony of witnesses and experts, but the error supposed to be committed, if of fact, should be apparent from documents or authentic acts which show the evident error of the Judge, but if of law, the law or legal doctrine considered to have been violated must be cited, as well as the manner in which the violation oeurred.
    Action of unlawful detainee. — In actions for the revovery of possesion, questions .relating to the identity of the things the possesion whereof is sought, and to the good or bad faith of said possession are questions of fact.
    In. — The doctrine that an action for recovery can not be successfully in- ■ stituted against a possessor who holds by some title, without first instituting, another action to defeat said title, is applicable where the right exercised by the plaintiff arises from the nullity of the defendant’s title, but not where both parties dirive their respective rights from different documents and acts, without there being any relation or dependence between those brought by the plaintiff and the ones exhibited by the defendant, in which ease the controversy is confined to a discussion as to the value, efficacy and preference of the documents or data which respectively served as a basis for the claims of the parties.
    Id. — The success of an action to recover one or several farms, does not necessarily imply, in every case, payment for the products thereof and an indemnification of the damages caused therein, but such obligation on the part of the possessor who has been defeated in the action, depends upon the circumstances attending the possession.
    Entries in the Registry of Property. — The object of the entries in the registry is to give publicity to the civil rights recorded therein, whence it is to be inferred that where the latter are extinguished by a judicial decision, the former become extinct, inasmuch as they derive their force and validity from aforesaid rights.
    Judgment, — Cancellation.-—A judgment has force of law for the pai-ticular case in which it is rendered, and one of the parties having been deprived of his title of ownership in real property by virtue of a judgment, said judgment on becoming executory, is alone sufficient for the cancellation of his ownership at the Registry of Property, the provision contained in paragraph 3 of Art. 83 of the Mortgage Law being no obstacle thereto, because in the latter it is presumed that the consent of the parties concerned is necessary, whereas in the case at issue such consent is not required.
    STATEMENT OF TI-IE CASE.
    On June 7, 1897, Miguel- Criado y Bias, filed a complaint in the former Court of First Instance of Ponce, alleging: That since the beginning of the year 1895, Pedro Simón Battistini, had appropriated to his own use a farm measuring fourteen and a half cuerdas, and nine cuerdas forming part of another farm, both situated in barrio “Vacas’’, municipality of Juana Diaz, ejecting from said lands, Vicente López and Daniela Colón, who occupied them by virtue of an agreement with plaintiff, and as said farms belonged to him, he instituted an action to recover possession thereof, basing his claim upon the following facts and legal authorities:— That by deed executed September 7, 1892, he had purchased the first mentioned farm from Juan Pablo Ortiz y Colón, who- had acquired it from Agustín Bonilla, the same being composed of the number of cuerdas above set forth, bounded on the north by lands belonging to Pedro Vazquez; on the south by those of Juan Maria Rivera; on the east by those of Pablo Ortiz; and on the west by those of Ramón Torres, record whereof was on October 17 1895, made in the Registry of Property of Ponce in favor of Criado; that the other parcel consisting of nine cuerdas, forms part of another farm of. fourteen cuerdas, which he had also purchased on June 6, 1892, from Daniela Colón, who had acquired it from the firm of Alvarado Hermanos, said parcel of nine cuerdas being bounded on the north by lands belonging to Miguel Criado, formerly Daniela Colón; on the south by lands belonging to said Colón, formerly to Juan Pablo Ortiz, which lands are also claimed in the suit; on the east by those of Pedro Vázquez Avilés (believed now to belong to Pedro Simón Battistini), and on the west, by those of Raimundo Valdecilla,-formerly Daniela Colón, and prior to that, to Juan Pio Cruz; that these nine cuerdas the recovery of which is also sought, as before stated, form a part of a farm consisting of fourteen cuerdas, recorded by Criado in his own name in the aforesaid Registry of Property of Ponce, on the 25th of August. 1896; that the products of these two parcels of land are due him, as also indemnity for the damages caused by the detainer thereof; and alleging as legal grounds, that being the owner of the property he had a right of action against the holder and possessor for the recovery thereof; that no one can be deprived of his property except by competent authority and by showing that it is a public utility, always after proper indemnification; that it is a principle of law that no one shall be deprived of his property and rights without first having been heard and defeated in court, and that everything wherever it may be has an owner; the judicial conception of the action to recover property which invests the owner of a thing with the right to demand its restitution from the possessor thereof together with its products, accesories and 'pajiment for deteriorations, and article 1902 of the Civil Code, which requires a person who by an act or omission causes damage to another, to repair :the damage done; and concluded the complaint by praying that the two deeds of sale be considered as having been filed and that, after hearing the allegations and considering the evidence, Pedro Simón Battistini be condemned to vacate the two farms described and leave them wholly and absolutely at the disposal of Miguel Criado y Blás and to pay three thousand five hundred and fifty pesos, for the products of both parcels of land from the time they have been in his possession and damages caused, and also that he be taxed with the costs. The complaint was answered by Battistini, who alleged: That about the beginning of the year 1895 he was judicially placed in possession of a farm acquired by him in barrio “Vacas”, municipality of Juana Diaz, belonging to the estate of Pedro A. Vázquez y Avilés, according to the deeds of August 20 and September 15, 1892; that the records of the proceedings in connection with said judicial possession were on file at the office of the Notary, José C. Schroder; that upon taking possession of his farm, and not of any farm belonging to the plaintiff, he succeeded in getting both Vicente López and Daniela Colón, who without any title whatever were in possession of the property and utilized the products thereof, to abide by the result of the said judicial proceeding; that the sum claimed is considerably in excess of the value of the crops produced on said farm; and alleging as legal authority, that ownership of property gives a right by accession to all that is produced thereby or which is united to or incorporated therein naturally or artificially, for which reason the natural, industrial and civil fruits belong to the owner. Defendant prayed that the complaint be dismissed, with costs against the plaintiff. In his replication plaintiff denied that defendant had acquired the two portions of land claimed in the suit by purchase from the estate of Pedro Vázquez Avilés, and urged that even if such were the case, the titles upon which the complaint is based should be given preference, because the two parcels of land had long before belonged to and been recorded in the name of the person from whom plaintiff derived his right; that he limits the claim for products to three thousand and fifty pesos; that he denies all the facts set up by defendant, and cites as legal .authority the principle that no one can give to another what he has not, and the priority of record, according to the spirit of the Mortgage Law and of the Civil Code, and of the provision contained in article 7 of the first mentioned law, and prays that the two parcels of land referred to in the ■complaint be declared wholly and absolutely the property of Miguel Criado; that the part of the entry referring to said farms made in favor of defendant and of defendant’s .successor in interest, be canceled in the Registry, and limiting to three thousand and fifty pesos the claim for products and indemnification for damages. Defendant in his rejoinder did not substantially alter the facts set up in his answer, and prayed that the complaint be dismissed, as requested in said answer. From the documentary evidence introduced by the parties it appears that the farms of fourteen and a half and of fourteen cuerdas, the latter comprising the one •of nine cuerdas, and which belong to Criado, were first recorded under date of July 20, 1886, and November 18, 1887, respectively; that Battistini acquired from the estate of Pedro Vázquez y Avilés, oil August 20, 1892, the rights and titles that the latter might have in a farm, the measurement of which is not mentioned, same being unknown; that by deed of September 15th, of the aforesaid year 1892, Battis-tini described as belonging to him, a farm composed of forty-six cuerdas, the admission to record of which was refused; that in a deed of July 14, 1894, Battistini and the heirs of Váz-quéz Avilés appear, and in the supposition that the former had committed an error, a farm is described and stated to measure sixteen cuerdas and eighty-seven centímetros, judicial possession whereof was acquired by him in February of 1895, the same being recorded on December 21st of said year; that three witnesses substantially agree in testifying to their knowledge of the fourteen and a half cuerdas purchased by Criado from Juan Pablo Ortiz and of the nine cuerdas ac-. quired by him from Daniela Colón, and two witnesses testify to their having heard that the first mentioned portion is included in the sixteen and a fraction cuerdas that have been for many years in possession of Battistini; that the expert witness named by both parties declares “that the tracts belonging to Criado contain more land than is assigned them in his deeds; that Battistini has a much larger area than that stated in his title; that the present boundary line of the latter’s first mentioned property crosses Criado’s farm reducing the area thereof; that Criado’s second farm is almost wholly included within Battistini’s property; that all of the tract marked with green ink (Battistini’s) comprise the lands of Criado, and are at present occupied by the former according to the statement of adjoining neighbors and of Francisco Guiliani, Battistini’s attorney-in-fact.” The case having been heard in two instances, the Audiencia, on March 5, 1900, rendered judgment affirming the decision of the court below, without special imposition of costs, sustaining the action brought by Miguel Criado against Pedro Simón Battistini, and requiring the latter to leave at the disposal of the former the two tracts of land, namely: one of fourteen and a half cuerdas and the other of nine, which were involved in the action, the discription and boundaries whereof are set out in the complaint, and that the record made in favor of defendant and his successors in interest, as to the portion pertaining to these two farms, be canceled in the Registry, he not being obliged to pay damages or to return the crops gathered during the time he was in possession of aforesaid two farms. From this decision Pedro Simón Battistini took an appeal in cassation for violation of law, based on paragraphs 1, 3 and 7 of article 1690 of the Law of Civil Procedure, the latter paragraph in connection with section 79 of General Order Nó. 118, alleging the'following grounds of appeal:
    I. — Criado has not proven that he has ever at any time been in possession of the land whereof he claims the ownership and which he seeks to recover from Battistini, nor that the latter had taken possession of and ejected Criado from said land; which assertion is sustained by the tenth conclusion of law of the judgment wherein it is declared “that it has not been shown that Battistini had evicted the persons whom Criado calls his tenants from the farms.”
    II. — The titles of Criado and Battistini have the same origin, for they are deeds recorded by virtue of acquisitions of conterminous lands made from former owners or adjoining neighbors among themselves. Hence Criado should have begun by bringing an action for the annulment of Battistini’s title to the property and established therein his right to the exclusive ownership of such property.
    III. — If it be admitted that said titles have different origins, because they were derived from different owners or possessors, then it should be ascertained whether there -exists any priority or preference in favor of Criado’s titles as against those of Battistini; but it is impossible to admit a preference in the two titles of Criado over that of Battistini, for the purposes of the recovery, in view of the length of time the latter has been in existence, since it comes from a grant made by the Government to Pedro Vázquez Avilés, dated August 12, 1874, and because the boundary lines of the land belonging to Battistini appear to be duly established and measured, and because Battisti-ni has the judicial possession thereof, and it has been recorded by him in the Registry of Property.
    IV. — Criado has failed to establish the identity of the farms of which he appears to be the owner, according to the deeds introduced, or to show that the land held by Battistini is not the property of the latter, but belongs to him, inasmuch as said property has a larger acreage than his titles call for; the names of the adjoining holders are incorrectly stated, while the expert witness for both parties states that in the work done by him he was guided by the information obtained from the adjoining owners and neighbors.
    V.- — The judgment which sustains Criado’s claim of right to recover against Battistini and condemns the latter to deliver to the former part of the land which legitimately belongs to Battistini, does not venture however, to require him to return the crops and make good the damages caused, thus violating the fundamental principle of the law with regard to the recovery of property. In these five points it is made evident that in the judgment appealed from the court has erroneusly construed and unduly applied the decisions of the Supreme Court of Spain, delivered September 22, 1866, January 30, and December 9, 1864, May 1, 1857, June 27, 1867, October 4, and December 26, 1876, June 25, and December 26, 1878, December 30, 1881, and June 14, 1889.
    VI.- — -Article 348 of the Civil Code and the decisions of the Supreme Court of Spain, of December 3, 1857 and March 16, 1888, have been violated, because if Criado could prosecute on action for recovery, the same right has Battistini to prosecute on action to preserve the lands belonging to him by virtue of a just title. Criado mistook his action, which was to call for a survey in order to establish the boundary lines of his property and demand same of the person who held it without a right to do so, after defeating in court all opposition to his claim.
    VII. — Paragraph 3 of article 79 of the Mortgage Law, the decision of the General Directorate of March 4, 1876, and judgments of December 17, 1873 and April 26, 1861, have been violated because the annulment of deeds must be obtained in ordinary actions prosecuted against the parties whose interests might be prejudiced by such annulment; but this has not been done, and the entries of titles- cannot be canceled in part, unless they have previously been declared null. The judgment says nothing about nullity, because this was not prayed for in the complaint; but the record made in the Registry in favor of Battistini is ordered to be canceled in part, and this cannot be done without first declaring the nullity of the title or part thereof.
    VIII. — The judgment grants more than was prayed for, for which reason the appeal is also based on paragraph 3 of article 1690 of the Law of Civil Procedure; but from the reasoning it is shown that what Battistini holds is that he cannot deliver more cuerdas of land than those provided for in his deed.
    IX. — All this comes from an error of fact in the consideration of evidence in order to define the right contested, and comes under paragraph 7 of arti-ele 1690 of the Law of Civil Procedure, - which is also alleged as a ground for the appeal, taken in connection with paragraph 79 of General Order No. 118, which provides that appeals in cassation may be based on error in the consideration of evidence, so as to set aside the old and restrictive doctrine of Spanish jurisprudence to the effect that the consideration of evidence is within the exclusive province of the trial court, which court may err in its consideration of the evidence and the Supreme Court of Porto Rico can correct such erroneous consideration, according to the law now in force, and the said error was made by the court a quo, inasmuch as it takes for granted the statement contained in Criado’s deed, forgets the result of the measurement, overlooks the mistakes in regard to the boundaries, fails to consider the absence of identity, accepts as true the necessary possession by Criado so that he may recover from Battistini what the latter is supposed to have deprived him of and overlooks the priority and preference in time of Battistini’s titles, and the perfect delimitation and judicial possession, so as to order the cancellation of their entry in the Registry, without having first declared their nullity.
    
      Mr. Rossy (Manuel F.), for appellant.
    
      Mr. Guevillas, for respondent.
   Mr. Justice Figüeras,

after making the foregoing statement of facts, delivered the following opinion of the Court.

According to rule 79 of General Order No. 118, series of 1899, besides the cases defined by the Law of Civil Procedure, an appeal in cassation will also lie for error in the consideration of evidence of whatever kind, which-provision by reason of its general character, must be made applicable to the testimony of witnesses and experts, without thereby considering as repealed paragraph 7 of article 1690, and article 1718 of aforesaid Law, from which it follows that such error, if of fact, should be apparent from documents or authentic acts which show the evident error of the judge, and if of law, the law or legal doctrine alleged to have been violated shall be precisely and clearly cited, as well as the manner in which the violation occurred. Such being the doctrine which in various cases has been established by this Court in construing this provision of General Order No. 118, the appeal as based on allegations 1, 4 and 9, does not lie, because questions of identity of things the possession whereof is sought to be recovered, and the good or bad faith of such possession are merely of fact, and as such, subject to the consideration of the trial court, to which the appeal in cassation must conform, so long as no error of fact or of law is. proven invalidating such consideration; and appellant in attacking the evidence in his ninth allegation, based upon paragraph 7 of article 1690 of the Law of Civil Procedure, fails to cite specifically the documents or authentic acts which show the evident error of the lower court, but cites confusedly the evidence which he supposes favorable to his- purpose, without stating whether there has been any error of law in the consideration thereof. Although it is true that the Supreme Court of Spain has held in more than one judgment, that an action for recovery cannot be successfully prosecuted against a possessor who holds by some title, without first instituting another action to defeat such title, this is the case where the right exercised by the plaintiff arises from the nullity of defendant’s title, but not as set forth by the judgments of July 4, and December 18, 1891, where both parties derive their respective rights from different documents and acts, without there being any relation or dependence between those brought by plaintiff and those introduced by defendant, in which case the controversy is confined to a discussion as to the value, efficacy and preference of the documents or data which respectively served as a basis for the claims of the parties; for which reason the judgment appealed from does not violate the doctrine invoked by appellant in the second and third allegations, not to mention the fact that in the latter, defendant’s title is stated to have originated from a source -which was not alleged either in the answer to the complaint, or in the rejoinder, namely, that of a grant of State lands dated August 12, 1874, a question which was not discussed at the proper time and cannot be raised for the first time on appeal in cassation. It has also been declared by other judgments, and among them by that of July 9, 1891, that the success of an action to recover one or several properties does not necessarily imply in every case the payment for -the products thereof and an indemnity for the damages caused, but that such obligation on the part of the possessor who has been defeated in the action depends upon the attending circumstances and, therefore, the judgment appealed from could hold as in fact it did, that the plaintiff was entitled to the recovery of the tracts of land in dispute, and hold that the return of the products and the payment of indemnity for damages could not be required, because to hold otherwise would involve the presumption of bad faith in in the possession by defendant, which was not proved, wherefore there has been no violation of the doctrine invoked in the fifth ground of the appeal. As to the sixth allegation, the trial court has correctly construed and applied article 348 of the Civil Code, and the doctrines announced in the judgments cited therein, inasmuch as the court in its decision has not acted contrary to the provisions of the law defining ownership, which is the sole object of the article quoted, but from the evidence which has not been successfully rebutted, has come to the conclusion that plaintiff has the law on his side, and this, after the defendant had prosecuted his action in the trial of the suit to preserve the lands, his ownership of which was contested by plaintiff who, having his titles recorded, could show on said record the metes and bounds of the properties referred to in the litigation. Under the seventh and ninth allegations it is urged that before bringing the action for recovery, the annulment of defendant’s title should have been demanded, which allegation has already been considered herein, it being held that there was- no legal reason for such a demand, and that consequently the provisions alleged to have been violated are not applicable ; but paragraph 3 of article 79 of the Mortgage Law has also been cited, and it should be borne in mind that according to the decision of the General Directorate, of November 21, 1881, the object of the entries at the Registry is to give publicity to the civil rights recorded therein, whence it is to be inferred that where the latter are extinguished by a judicial decision, the former become extinct, inasmuch as they derive their force and validity from aforesaid rights, and that a judgment has torce of law for the particular case in which it is rendered, notwithstanding the provisions contained in paragraph 3 of article 83 of the Mortgage Law, to which appellant seems to refer without citing it, because it is thereby presumed that the conserit of the parties concerned is necessary, whereas in the case at bar such consent is unnecessary, because the party who held the title of ownership was deprived of his right by virtue of a judgment which, when subject to execution, is alone sufficient for the cancellation according to article 82 of the same Law, and if after this suit for recovery of possession already finally passed upon, another action were to be instituted against defendant for the purpose of obtaining the cancellation of the entry of ownership made in his favor unnecessary expenses and delays would ensue, inasmuch as in this second litigation the only question to be decided would be the same right of ownership which has been finally decided in the first judgment. As regards the appeal based upon paragraph 3 of article 1690 which is also included under the eighth ground of the appeal, it must be borne in mind, although no legal provision is alleged to have been violated, that the judgment appealed from' has only passed upon the matters prayed for in the complaint and in the replication in which, as well as in the rejoinder, in accordance with article 547 of the Law of Civil Procedure the parties may amplifj'-, add to, or modify the allegations and exceptions contained in the complaint and in the answer; and as the trial court having this in mind, has conformed to the provision of article 358 of the aforesaid law of procedure, it cannot he maintained that the judgment has granted more than was prayed for.

We should declare and do declare that the appeal in cas-sation taken by Pedro Simón Battistini, does not lie, and impose upon him the costs. The proper certificate is ordered to be forwarded, and the record returned, to the District Court of San Juan.

Messrs. Chief Justice Quiñones, and Associate Justices Hernandez and MacLeary, concurring.

Mr. Justice Sulzbacher did not sit at the hearing of this case.  