
    Cobián v. Rivera.
    Appeal from the District Court of San Juan.
    No. 87.
    Decided June 27, 1903.
    Unlawful Detainer — Weco may Institute Same. — All persons legally entitled to the possession of an estate as owners, have a right to institute an action of unlawful detainer. ,
    Id. — Aoainst whom it may Be Instituted. — An action of unlawful detainer may he instituted against tenants at sufferance or any other persons enjoying the estate whether rural or urban without paying rent therefor, provided that one month’s notice to vacate has been given.
    Id. — Usufruct.—Where an estate has been sold with the right of redemption reserved to the vendor and usufruct thereof during the term agreed for said redemption, upon the expiration of said term the vendor’s right as usufructuary ceases, and the estate being recorded in the registry of property in favor of the vendee, aforesaid right of usufruct cannot in any manner impair the latter’s right to institute an action of unlawful detainer, inasmuch as his title thereto and possession thereof invest him with the capacity required by law for the prosecution of such action.
    Id. — Tiskast at Sufferance. — An action of unlawful detainer based upon the fact that defendant holds property as a tenant at sufferance will be considered in this hearing upon the evidence presented without the necessity of a prior decision in another action as to whether plaintiff acquired irrevocably and completely the ownership and possession of the property which is the object of the action of unlawful detainer.
    Costs. — Costs shall be taxed against the party who loses his case on all points,
    STATEMENT OF THE CASE.
    This suit was instituted in the District Court of San Juan by Rafael Cobián Romeu, a property owner, resident of Bayamón, against Macario Rivera Morales, a resident of'Na-ranjito, for the unlawful detainer of a "farm, which action is pending before us on appeal in cassation, now appeal, from the judgment rendered by said court, taken by the party defendant, Rivera Morales, who was represented in this Supreme Court by Manuel F. Rossy, Esq., and the plaintiff, Cobián Romeu, represented first by Juan de Guzmán Beni-tez and later by Wenceslao Bosch.
    The judgment appealed from, rendered by a majority vote and the opinion of the dissenting judge, literally read as follows:
    “ In the City of San Juan, Porto Rico, November 28, 1902. The bearing was bad in tbis action of unlawful detainer prosecuted by Rafael Cobián y Romeu, represented by Juan de Guzmán Benitez Esq., against Macario Rivera y Morales, represented by Manuel F. Rossy Esq.
    Rafael Cobián y Romeu filed a complaint in tbis court together with a report of tbe proceedings bad in the Municipal Court of Naranjito before which Macario Rivera Morales was summoned on November 22, 1901, and given one month within which to vacate the farm and all the appurtenances thereof, to be hereinafter described, praying that the action of unlawful •detainer be sustained with costs against the adverse party. The facts as set forth in the complaint were that by deed executed January 13, 1893, before-Notary Tomás Valldejuly, Rivera sold to Cobián, Solis & Co. the farm situated in “Cedro Abajo”, township of Naranjito, consisting of one hundred and twenty-nine cuerdas of land, bounded on the east by lands of Isaac-Morales; on the north by those of Bernabé Berrios and Raimundo Morales;, on the west by lands belonging to Francisco Rodriguez, and on the south by those of Braulio and Isaac Morales; that the price was three thousand seven hundred and eighty-four Mexican pesos, the property to be transferred to the vendor if, within four years, or on January 12, 1897, he should return the purchase money together with expenses, Rivera in the meantime to enjoy the usufruct of the farm provided he preserved it in good condition as a wise-administrator, and pay the taxes imposed upon the property; that aforesaid term of four years expired and the vendor having failed to return the-purchase money, by an instrument executed January 21, 1897, before the-same notary, an extension of another four years upon the same conditions: was stipulated with Yaldés- Cobián & Co., to whom the rights of Cobián,, Solis & Co. had been transferred, the aforesaid price, however, to be understood as payable in provincial money, together with an additional sum of two thousand nine hundred and five pesos and twenty centavos which the vendor acknowledged having received from the vendees; that by deed of August 7, 1899, upon the dissolution of the firm of Valdés Cobián & Co., the property was awarded to Rafael Cobián y Romeu, a record to that effect being made in the Registry of Property; that the purchase money not having been refunded by Rivera, he was required to deliver the property which he refused to do under flimsy pretexts, and continued in the possession of the farm as a tenant at sufferance, without paying rent therefor. On November 22, 1901, demand was made that Rivera vacate, but he failed to do so notwithstanding the lapse of more than thirty days, claiming a right to the appurtenances, namely, the buildings, engine-house, shed, cars and tracks. The legal authorities cited in support of the complaint were articles 348 and 513 of the Civil Code and paragraph 3 of article 1563 of the Law of Civil Procedure.
    In answer to the complaint defendant prayed that the same be dismissed with costs, setting forth that plaintiff alleged that Rivera had remained in possession of the farm as usufructuary, the term for redemption having been extended with an increase in the price; but said extension had not been recorded, plaintiff thereby failing to comply with the condition of the usu-fruct, and the farm thus possessed is not occupied at sufferance despite the notice to vacate, and therefore the action of unlawful detainer cannot be maintained; that the property now has other boundaries inasmuch as it is bounded on the north by the property of Josefa Morales, which the plaintiff pretends forms a part of the land involved in this litigation; that Rivera has paid three hundred and ninety-six pesos every year from 1894 to 1896, and has moreover accounts with Valdés Cobián & Co. which are not yet settled; that the legal authorities applicable to the ease under consideration are article 522 of the Civil Code and the judgments of the Supreme Court of November 30, and December 4, 1877, and July 6, 1899; that the failure to comply with the conditions of the usufruct prevents the bringing of an action of unlawful detainer, and that to maintain such an action the situation, extent .and boundaries of the property should be clearly set out; that inasmuch as there are accounts pending and payments made on account of the price an action of unlawful detainer cannot be maintained, and the cause of action is lacking.
    The introduction of evidence having been proceeded with, plaintiff submitted: First. — The deed of sale containing a redemption clause, dated January 13, 1893, referred to in the first finding of fact, with the right of usufruct, and stating the number of cuerdas, boundaries, price and term within which the property could be redeemed, as specified in the foregoing finding of fact. .Second. — The deed of January 21, renewing the contract fqr another term of four years, and stated in the said finding, and mentioning the fact that the property had been transferred to Valdés Cobián & Co., the price being fixed in provincial money which the vendor acknowledges having received, a certificate of the necessary portion of the instrument of dissolution of the firm of Valdés Cobián & Co. on August 7, 1899, and the award of the property involved in this litigation. Third. — Certificates issued by the .Registrar of Property to the effect that the farm had been recorded in favor of Valdés Cobián & Co. Under date of April 14,1898, and that the same had belonged to Macario Rivera Morales, according to deed executed by the former owners, one of whom was Josefa Morales y Morales, and that since July 5, 1900, it stood upon the record as the property of Rafael Cobián Romeu. Fourth. — Receipts of taxes paid by said Cobián Romeu for 1898-99 and the first quarter of 1901-02.
    Defendant presented several private documents bearing date of 1893, and a part of the copy of account dated January 15, 1897, without signature, which documents and account, as well as the other evidence proposed by said party were not introduced by him.
    A day having been set for the hearing, the only one to make an appearance was counsel for the defendant who offered such arguments on behalf of his client as where deemed proper, and when judgment was rendered Substitute Associate Judge Juan Hernández López dissented. Presiding Judge Juan Morera Martinez delivered the following opinion of the court:
    “ The farm having been purchased with the right of redemption reserved to the vendor, the term agreed upon for said redemption and the extension thereof expired on January 12, 1901; and inasmuch as the ownership of the property appears recorded in the Registry in the name of the party prosecuting tbe action of unlawful detainer (nothing to the contrary appearing in the record), who has paid the taxes, especially those assessed from July 1 to December 31, 1901, that is to say, subsequently to January 12 of the same year when the contract expired, there is no denying plaintiff’s right to prosecute the action of unlawful detainer against a person who occupies the property without paying any rent and can show no title giving him the right to the enjoyment thereof, except the owner’s sufferance and toleration, which may be recalled at will provided thirty days notice be -given to the tenant according to the Law of Civil Procedure. ’ \
    The usufruct allowed during the life of the contract, the term thereof having expired, does not constitute a bar to the action prosecuted by plaintiff, and there existing no lease giving rise to a counterclaim, the facts alleged by defendant cannot prevent said action, because, after the expiration of the (thirty day period aforesaid the deed of conveyance of the farm is sufficient title upon which to demand ejectment, which can only be contested in another action of a different character from those defined by the law as summary proceedings.
    No evidence having been introduced disproving plaintiff’s right to recover, which is supported by his evidence, judgment must be entered in his favor, with costs against defendant.
    We adjudge that we should sustain and do sustain the action of unlawful detainer prosecuted by Rafael Cobián Romeu, and Macario Rivera y Morales is accordingly ordered within the term of twenty days to vacate the farm involved in this action, and included within the boundaries described in the first finding of fact and the deed produced by the plaintiff, under penalty of ejectment, costs being taxed against said defendant. Thus, by this our judgment, do we pronounce, order and sign. — Juan Morera Martinez. — Juan Hernández López. — Jacinto Texidor.”
    “The undersigned Judge is of the opinion that in the present case judgment should have been rendered as follows: The findings of fact of the judgment rendered by this court are accepted.-
    The farm involved in this action of unlawful detainer is not held by defendant at sufferance, but in the capacity of usufructuary by virtue of a contract of purchase and sale of said farm with a clause reserving to the vendor the right to redeem the same within a stipulated time.
    Plaintiff bases his complaint on the fact that defendant allowed the term to expire without making use of his right to recover the property within the stipulated time.
    The question of the inherent rights alleged as to whether defendant failed to comply with the provisions of the article of the Civil Code, and whether by reason of said failure plaintiff under aforesaid article acquired irrevocably and completely the ownership and possession of the farm sold, calls for a decision upon that point before disposition can be made of the matter of possession from which the action of unlawful detainer arises.
    Questions as to the fulfillment of the conditions of a contract of purchase and sale and the vindication of rights emanating therefrom, such as the one in issue, should be tested in a declaratory action, and not in an action of unlawful detainer.
    We adjudge that we should declare and do declare that the complaint does not lie, and impose costs upon plaintiff. Thus, by this our decision, do we adjudge, order and sign. — Juan Hernández López.”
    From the foregoing decision of the court counsel for Ma-cario Rivera Morales took an appeal in cassation based upon error of law, which was allowed, and the record having been forwarded to this, Supreme Court, after the' parties were duly cited, the appeal in cassation was treated as an appeal in accordance with the provisions of “An Act of the Legislative Assembly establishing the Supreme Court of Porto Rico as a court of appeals”, approved March 12, 1903. The record was delivered to each of the parties and a day set for the hearing which took place on the 23rd instant, when counsel for both appellant and respondent presented such arguments as were deemed pertinent in support of their respective claims.
    
      Mr. Manuel F. Rossi/, for appellant.
    
      Messrs. Juan de Guzmdn Benitez and Bosch, for respondent.
   Me. Justice HeekÁNdez,

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

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

According to article 1562 of the Law of Civil Procedure, among other persons, all those legally entitled to the possession of an estate, as owners, shall be considered legal parties to'institute an action of unlawful detainer, and according to article 1563 of said law, an action of unlawful detainer may be instituted against the persons mentioned under paragraphs 1 and -2 thereof as also against any other person enjoying the estate, whether rural or urban, without paying rent therefor, provided one month’s notice to vacate has been served upon him.

Inasmuch as the estate in question is recorded in the Registry of Property in favor of Rafael Cobián Romeu, his title thereto and civil possession thereof invest him with the capacity required by article 1562 of aforesaid Law of Civil Procedure, to prosecute the action of unlawful detainer instituted by him against Macario Rivera Morales, and the latter, having been required one month before the institution of the action, to vacate said property, is enjoying or holding it as a tenant at sufferance, without paying rent therefor since January 12, 1901, when Cobián Romeu acquired an irrevocable title to the possession thereof by virtue of the expiration of the term of the contract with the right of redemption, pursuant to article 1509 of the old Civil Code, the claim made by defendant that he possesses the farm in the capacity of an usufructuary, not being tenable, since said title extinguished on the date when the contract with right of redemption expired, according to the provision of article 513 of the same Code.

The action of unlawful detainer being based upon the alleged fact that appellant holds the property as usufruc-tuary or tenant at sufferance, this question may be considered and decided in this suit, taking into account the evidence introduced without the necessity of a decision being made in another action as to whether Cobián Romeu acquired irrevocably and completely the ownership of the farm that had been sold to him by Rivera Morales.

According to section 63 of General Order No. 118, series of 1899, costs shall be imposed upon the litigant who loses his case on all points.

In view of the legal authorities cited hereinbefore we adjudge that we should affirm, and do affirm, the judgment appealed from, as rendered by the District Court of San Juan on November 28, 1902, the costs of this appeal being also'taxed against the appellant, Macario Rivera Morales. The record is ordered to be returned, and this decision communicated to the aforesaid court for compliance therewith.

Chief Justice Quiñones and Justices Figueras and Mac Leary concurred.

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