
    Cobián v. Rivera.
    Appeal from the District Court of San Juan.
    No. 28.
    Decided December 24, 1904.
    Unlawful Detainer. — Where the ejectment of a defendant from a rural estate is decreed in an action of unlawful detainer, he must vacate and be ejected from every part of the land included within the area defined by the court in fixing the boundaries in the description of the property involved in the action.
    
      Ib. — Execution on Judgment. — The fact that there is a greater or less acreage included within the boundaries of the property involved in the action of unlawful detainer than is mentioned by the court is not a matter which may be determined and defined in proceedings for the execution of a judgment, but should be disposed of in an action of a different character.
    Judgment. — Judgment rendered in a case cannot affect persons who have not been heard and defeated therein, and such persons must seek protection of their rights before the proper court and in the proper manner.
    Appeal — Execution oe Judgment. — An appeal lies from decisions rendered by inferior courts in proceedings for the execution of judgment in cases where such decisions have held contrary to final judgments.
    STATEMENT OF THE CASE.
    This is an action of unlawful detainer of a rural estate, prosecuted in the District Court of San Juan by Rafael Cobián y Romeu, an attorney-at-law, property owner and a resident of Bayamón, against Macario Rivera y Morales, a resident of Naranjito, and proceedings for the execution of tfie judgment rendered therein. The case is pending before us on an appeal taken by Cobián Romeu in his own behalf, the respondent being represented by Attorney Manuel F. Rossy.
    On November 17,1901, Rafael Cobián y Romeu filed a petition in the Municipal Court of Naranjito praying that Macario Rivera be required to vacate within the term of one month the real estate belonging to Cobián, and situated in barrio Cedro-Aba jo, within the jurisdiction of the said town, and consisting of 129.5 cuerdas of lancl bounded on the east by lands belonging to Isaac Morales; on the north by those of Bernabé Berrios and Raimundo Morales; on the west by Francisco Rodriguez, and on the south by the lands of Braulio and Isaac Morales, and that at the same time an inventory be made of the buildings situated upon the said lands.
    The court granted the said petition, and the requirement having been made upon Macario Rivera in the manner requested, the inventory above referred to was made and the same included a dwelling house built of native wood, with a shingle roof, a shed and kitchen with galvanized iron roofs, a store house, also built of native wood and with a galvanized iron roof, a'machine honse with a straw roof, a shed with a straw róof, used as a stable, and six cars and three rail tracks, all in good condition. Bivera protested against this inventory, alleging that, the things included in the same did not belong to the real estate in question, since the buildings were not situated thereon, as he proposed to prove in due time be-for a competent court.
    On December 26th following, Bafael Cobián filed a complaint in the District Court of San Juan against Macario Bivera Morales, in an action of unlawful detainer, to compel the defendant to vacate the property or estate hereinbefore described. Bivera answered the complaint, alleging among other facts, that the boundaries stated by the plaintiff were not the boundaries of the property, since on the north it adjoins lands belonging to Josefa Morales, which is a very important fact, because Cobián pretended that the property of the said Josefa Morales, consisting of 86 cuerdas, together with the house and buildings thereon situated, should be included in, and form a part of, the property which is the object of this suit.
    The District Court of San Juan, by a judgment rendered November 28, 1902, sustained the action of unlawful detainer and required Macario Bivera y Morales to vacate within the term of twenty days the property included within the boundaries described by Cobián and which judgment was affirmed by this Supreme Court on appeal by the decision rendered June 26th of last year.
    After Macario Bivera was required to vacate the property and the other proceedings were had for the execution of the judgment, the District Court of San Juan made an order on October 29th of last year for the ejectment of Macario Bivera and directing the marshal of the said court tó go to the property in question for that purpose, and designating the expert surveyor, Bubio Arana, for the identification of the property, the said order providing that notice of the same should be served upon the parties in order that within two days they might make such statements as they might deem proper in support of their rights hut with the warning that if they should fail to do so the identification would be effected by the said expert. As the aforesaid expert was ill, on the 23d of the same month of October, the expert surveyor, José María Bicarte, was appointed to substitute him, and of which appointment the parties were to be notified with the same warning provided for in the order of the 19th.
    Counsel for Macario Eivera filed a petition on October 28th praying: (1) That the appointment of Bartolomé Llovet be accepted as the expert of Macario Rivera in order that he and the other expert might proceed to measure and identify the property composed of 129.5 cuerdas claimed by Cobián. (2) That a term be fixed within which the said experts shall finish their work and present their report. (3) That in case of a disagreement between them a third expert be designated to adjust such differences. (4) That after the property shall have been identified and measured that the marshal place Cobián in possession of the same. An order was made on October 30th denying the requests contained in the said petition of Macario Rivera, and directing that the order made on the 23d of the said month be immediately complied with, and for which purpose the expert José María Ricarte would be notified of his appointment in order that he might accept the same and take the oath, and that thereafter the marshal proceed, accompanied by the said expert, to eject the said Macario Rivera from the 129.5 cuerdas of land belonging to Rafael Cobián, after defining the boundaries of the same.
    Macario Rivera asked that the order of October 30th be made so as to provide that his expert, together with Cobián’S expert, proceed to identify and measure the 129.5 cuerdas of land, and by an order of November 3d the court refused to modify its said order, but provided that Rivera might be present at the identification of the property and designate, on his own account, an expert who might take part in the matter, the result of which, in case of a disagreement, should he set out in a written instrument; but that the absence of such expert, or his failure to express an opinion should not be an impediment to the carrying out of the identification and the ejectment.
    Upon the. identification of the land being effected by the expert, José María Brearte, assisted by Bartolomé Llovet as the expert of Macario Bivera, Medardo Bivera representing his mother, Josefa Morales, presented the record of a proceeding to secure a possessory title commenced in the month of August, 1903, and recorded in the registry of property, to prove that a part of the land claimed by Bafael Cobián belonged to her. After the necessary labor had been finished, the expert Bicarte expressed the opinion that the present boundaries of the property are: On the north the lands of Baimundo, José Engracia, and Isaac Morales; on the south formerly by those of Braslio Morales and now Cobián y Com-pañía, Cayetano Seramis and Isaac Morales; on the east the lands belonging to Isaac Morales and those formerly belonging to Angela Matos, and now to Pablo Santiago; and on the west the lands formerly belonging to Francisco Bodriguez, but now belonging to Macario Bivera; that the lands within the said boundaries include the property to which the writ of ejectment refers, and also the lands referred to in the posses-sory title of Josefa Morales, which lands, and the tract ordered to be identified, are bounded on the north by the same property; and the expert Llovet stated that it is impossible to identify the property claimed by Cobián because the boundaries thereof could not be exactly determined, and that the surveys of the tract of land referred to must of necessity measure more than the 129.5 cuerdas, as stated in the order of ejectment.
    The expert Bicarte presented his report to the court, together with a drawing of the property showing its boundaries, which is the result of the investigation made, and -which are the same as hereinbefore stated, separating by means of a red line the lands referred to in the possessory title of Josefa Morales and included within the said boundaries, and upon which the buildings are situated.
    As the marshal did not eject the said Macario Eivera from the property, Eafael Cobián asked that he be so ejected and that he be put in possession of the property, the boundaries of which had been established by the expert Eicarte, and the court, by the order made on November 30th of last year, denied this petition and directed that the said expert proceed to determine on the land the acreage indicated in the drawing and that he should measure within the western, southern and eastern boundaries the 129.5 cuerdas pertaining to the property which is the, object of the suit, and fix the northern boundary where it belongs, after which the marshal might proceed to eject Macario Eivera, or any other person who might be in possession in his name, from the property within the boundaries so established by the expert.
    Eafael Cobián filed a petition praying for a modification of the said order, and after the proper proceedings were had in pursuance of this remedy, which was opposed by the adverse party, his said petition was denied by the San Juan court by an order made on the 29th of the following month of December.
    From this order of December 29th Eafael Cobián took an appeal, which was allowed, and the record having been sent up to- this Supreme Court, after citation of the parties, and the same having been submitted to them for their information, a day was set for the hearing which was held in due time, counsel for the respondent being present.
    
      Mr. Cobián, for appellant.
    
      Mr. Manuel F. Bossy, for respondent.
   Me. Justice HeRNÁNdez,

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

The action of unlawful detainer filed by Rafael Cobián against Macario Rivera, and sustained by the executory judgment, involved an estate situated in barrio Cedro-Abajo, within the municipal jurisdiction of Naranjito, composed of 129.5 cuerdas of land bounded on the east by lands of Isaac Morales; on the north by those of Bernabé Berrios and Rai-mundo Morales; on the west by the lands of Francisco Rodriguez, and on the south by those of Braulio and Isaac Morales, and therefore the ejectment .ordered, in compliance with the said judgment, should include the area comprised within the boundaries aforesaid.

According to the opinion of the expert, José Maria Ri-carte, the present boundaries of the property in question are the ones which appear in his report and the drawings submitted to the San Juan court, there being not the slightest doubt on the part of the court or the parties to the action as to the western, southern and eastern boundaries, the dispute being confined to the location of the northern boundary which can be no other than that indicated by the expert Ricarte, inasmuch as Josefa Morales does not appear in the action as the adjoining property owner on the north; and although this allegation was made by Macario Rivera in his answer to the complaint, stating that Cobián sought to include the property of Mrs. Morales, consisting of 86 cuerdas upon which the house and buildings are situated, within the boundaries of the property which is the object of the suit, that allegation was denied by the fact that the action of unlawful detainer was sustained with respect to the boundaries therein described.

The exact number of cuerdas of land which may be included within the boundaries of the property which is the object of the action of unlawful detainer has not been questioned herein, nor would it be proper to determine or define the same in a proceeding for the execution of judgment, because it is a matter which is extraneous to such proceedings and must be determined in another action.

If Josefa Morales, who has not been a party to this action, considers that she has a right to a portion of the lands involved in the action of unlawful detainer, she can go about the enforcement of those rights before the proper court and in the proper manner.

In view of the foregoing, the District Court of San Juan, in rendering the order appealed from, having proceeded contrary to its final judgment, that is to say, its decision of November 28, 1902, which was affirmed by this Supreme Court on June 27th of the following year, the appeal taken herein should be sustained.

We adjudge that reversing, as we do reverse, the order of November 29th of last year and the concordant order made on the 30th of the month of November previous, we should order, and we do order, that Macario Eivera be ejected from the land described in the complaint and included within the boundaries mentioned by José María Eicarte in his report and drawing, reserving to the said Macario Eivera and Josefa Morales such rights as they may consider themselves entitled to, and which they may exercise in the proper manner, if they think proper so to do, with costs against Macario Eivera. The record herein is ordered to be returned to the District Court of San Juan together with the proper certificate.

Reversed.

Chief Justice Quiñones and Justices Figueras, MacLeary, and Wolf concurred.  