
    Delgado, Appellant, v. Registrar of San Juan, Respondent.
    Appeal from a Decision of the Registrar- of Property Refusing to Record a Forced Sale.
    No. 514.
    Decided May 11, 1922.
    Becokd of Title — Community Property. — A property being recorded as community property, while that record remains nneaneeled the legal status established by that entry, whether true or not,, must be considered as prima facie correct for the purposes of the record.
    The facts are stated in the opinion.
    The appellant appeared by brief.
    The respondent appeared by brief.
   Mr. Justice Hutchison

delivered the opinion of the court.

The District Court of San Juan in the course of a judicial administration, at the instance of Obdulia Sosa, widow of González and judicial administratrix of the estate of Isaías González, ordered the sale of an undivided interest in certain real property. ■

The marshal after a sale at public auction executed in favor of the successful bidder a deed, record of which was refused by the registrar of property for reasons stated as follows:

“After a review of other papers the admission to record of the preceding document is denied on the following grounds: First, because, since according to the registry the joint property sold is presumed to be community property, there must be some showing of the existence either of an express consent to the sale or the consummation thereof by the surviving spouse to the extent of his authority, a requirement that does not appear to have been complied with herein since it is not shown what relation exists between the judicial administrator Obdulia Sosa, widow of González, and the ancestor, the presumption that the property is community property arising from the following facts: That it was said that the deceased took title to a part of the joint property for a valuable consideration and there was no showing that the same was private property and that although it was stated in the dominion title proceedings, by virtue whereof the joint property was recorded, that a portion thereof had been acquired by inheritance, there was a statement made by one of the former registrars which appeared in the entry of record itself and to which no objection was made, denying that the acquisition partook of a private character because of the failure of the spouse of the petitioner to appear in the proceeding and agree thereto, and that such entry of record should be regarded as in force in all respects until rectified or annulled in a proper legal manner. — 2. That the joint property in question is recorded in favor of the ancestor, a person distinct from his succession in this case, whereas article 30 of the Mortgage Law requires that it shall be recorded in the name of the succession in the absence of a showing that the succession is vacant, the accompanying certificate of the clerk of the' district court not being conclusive regarding the matter since he bases his conclusion on the fact that no designation of heirs was made, which fact alone is not decisive, since the instrument presented shows that the portion inherited was placed under judicial administration, without stating in what capacity the petitioner acted, whether as creditor, widow or heir, or that the inheritance had been repudiated, and under such circumstances it must be presumed that the petition for administration, which is not claimed to be provisional, involves an act of acceptance, the grounds for such administration prescribed in sections 23, 24, 25 of the Special Legal Proceedings Act being absent in this case, and were the widow the administrator the defect of vacant inheritance would be still more pronounced since, even though a designation of heirs were lacking, the widow would be a presumed heir, either usufructuary or to the extent that the Civil Code considers her an heir in her own right, in which event it becomes absolutely necessary that the title of the succession be first established and recorded; in the absence of persons entitled to inherit, The People of Porto Rico would become the successors and there is neither any showing that they have been notified of the proceeding. In lieu of the entry of record a cautionary notice has been inserted for the legal period on the reverse side of page 112 of volume 17 of Carolina, property No. 731, entry letter A, wherein is also included the curable defect of failure to state the name and surname of the wife of the purchaser and the further curable defect set forth in the original entry of record of the whole property, to the effect that a certain specification of part ownerships including that sold was not acquiesced in originally. All in accordance with the said articles and the decisions of the Supreme Court as found in vol. 18, p. -; vol. 19, p. -, and vol. 28, p. -.”

Appellant assigns as error:

“As to the first defect, the finding by the said registrar that the right conveyed by the deed of sale and recorded in the name of deceased as a separate interest by -virtue of ownership proceedings duly prosecuted before the District Court of San Juan, is community property.
“The second defect noted by the registrar, respondent, in his decision consists of the supposed violation of article 20 of the Mortgage Law requiring a previous entry of record in the name of the ancestor’s succession, the registrar failing to take into consideration, the fact that a vacant succession is involved.
“This defect is without legal force for the following reasons:
“First: Because the sale of the real property in question was: ordered by the court in an ex parte proceeding had for the judicial administration of the estate of the ancestor.
“Second: Because the proceeding in which the sale was ordered, does not figure among those that can be brought against decedent’s: succession, but must be petitioned for by the succession itself.
‘'Third -. Because the registrar had before him a certificate of the court wherein the clerk thereof shows that according to the records of the case the marshal of said court made the sale in favor of the petitioner herein, assuming ' that he continued the personality of decedent Isaías González Cruz.
“Fourth: Because, according to said certificate, the inheritance was vacant and the sale ivas made to the appellant for the purpose of terminating the administration of the decedent Isaías González Cruz.”

The record of the decree of dominion title referred to by the. appellant reads in part as follows:

“Manuel González Cruz, of age, married, resident of Carolina, appeared before the First Division of the District Court of San Juan on October 29, 1914, and moved the court to adjudge that he, his brother Isaías González Cruz, also married, of age and residing at Carolina, and his nephew Enrique. Mayol González, minor, single and residing in the same place, were the owners of this property and another two properties shown in the marginal note, and that they held an undivided interest in common in the property under discussion as follows: Enrique Mayol González, 10.70 acres; Isaías and Manuel González Cruz, 26.75 acres each, the former by inheritance from his mother Emma, who in turn took title in 1897 from her mother Micaela Cruz Tarbot and from whom and as legitimate children Manuel and Isaías also inherited 5.38 acres each; and the remaining 42.80 acres by purchase from Cosme Cruz in the year 1898 and from Mariano Cruz in the year 1902, brothers of Micaela Cruz, the three latter having acquired the entire property by virtue of inheritance from their mother Juana Francisca Tarbot .and remained in possession thereof for more than thirty years. * * * Cristino Díaz Mundo and Martín Rodrigo took the witness stand and although they testified that these properties were acquired by inheritance, it will be observed that the court sustained the motion in connection with this property in which the acquisition of title by purchase and inheritance is set forth. Hence, the court, by order of May 28, 1915, signed by Judge Felix Córdova Davila before Clerk Celestino Ma-rrero, which is declared to have become final, sustained the initial motion and the title of ownership over this property and the two properties described in the margin in the name of Manuel Isaías González Cruz and Enrique Mayol González, ordering their admission to record; the co-owners Manuel and Isaías González Cruz being married and their respective spouses not having participated in the proceeding, it is not possible to consider the parts or acres acquired by inheritance as partaking of the character of separate property and the same must hence be presumed to be community property. By virtue thereof Manuel and Isaías González Cruz and Enrique Mayol González record their etimmon undivided interests in the proportions set forth in tire dominion title of this property subject to the curable defect of failure to prove the right of representation of Manuel Gon-zález Cruz, as a result whereof the fixing of the shares herein outlined have not been acquiesced in by the other co-owners. All of which is shown by a certificate dated July 13, 1915, issued by the deputy clerk of the court, Francisco Negroni, including the order referred to. * '* ■* And there is further noted the curable defect of failure to state the names and surnames of the wives of the co-owners Manuel and Isaías González Cruz.”

From this entry it does not appear, as asserted by appellant, that the interest of Isaías González was recorded as his separate property. The record does not show that the eonrt undertook to determine the question of separate ownership. It does not even indicate that the petition contained any prayer for such characterization of the title. It does point out that Isaías González appeared in the proceeding as a married man and as having acquired the major portion of the interest in question by purchase. In the circumstances, the mere fact that certain witnesses stated that the property had been acquired by inheritance would hardly have justified a record thereof as separate property had such an entry been requested.

But in any event the interest was not recorded as separate • property, but expressly characterized by the registrar as prima facie ganancial and no appeal was taken from the ruling. So long as the entry then made remains uncancelled by virtue of a judicial decree, the status created by the original entry, whether true in fact or not, must be regarded for purposes of record as prima facie correct. Dávila v. Registrar of Caguas, 28 P. R. R. 183.

In Arias et al. v. Registrar of Property, 19 P. R. R. 1115, this court held, to quote the syllabus, that:

“A mortgage having been recorded in the registry of property in favor of a spouse as his private property, the record setting out the statements of the attorney-in-fact of the spouse who loaned the money to the effect that said money belonged exclusively to said spouse and proceeded from property which he contributed to the conjugal partnership, it is not possible to disregard the legal effects of that record and the registrar cannot refuse to record the deed of cancellation of that same mortgage later on the ground that the other spouse did not consent to said cancellation.”

The same rule would apply a fortiori to a record of real estate as community property, for the entry in such case does not rest solely upon a technical' basis, but is also sustained by the legal presumption that attaches to all property found in the possession of either of the spouses.

The only authority cited in support of the second assign! ment is Passalacqua Hermanos & Co. v. Registrar, 6 P. R. R. 43, where reference is made to the former doctrine of the General Directorate that “save only in cases of inheritances not yet occupied, property sold or awarded by judicial process in payment of debts should be recorded in the name of the heirs of the debtor, before entering the same in favor of the vendee or grantee.”

But for the reasons stated by the registrar the certified legal conclusion of the secretary of the district court does not establish the fact, if it be a fact, that in the case at bar the inheritance is vacant. See also Amy v. Aponte, 29 P. R. R. 134; Armstrong & Co. v. Irizarry, id. 563.

The ruling appealed from must be

Affirmed.

Chief Justice Del Toro and Justices Wolf, Aldrey and Franco Soto concurred,  