
    Belden v. Pesquera Et Al.
    Appeal from the District Court of San Juan.
    No. 84.
    Decided November 9, 1903.
    Damages. — Costs.—A person who resorts to the courts for the sole purpose of making good a more or less questionable right, does not properly cause a damage, the imposition of costs being the only correction applicable in each particular case, when untenable claims are dismissed.
    Costs. — Costs are imposed upon that litigant who looses his case on all points.
    
      STATEMENT OE THE CASE.
    In the action prosecuted in the District Court of San Juan, by Cora May Belden de Smith, as plaintiff, represented in this Supreme Court by her counsel, Luis Freyre Barbosa, against Mariano Pesquera y Goenaga, defendant, represented by his counsel Wenceslao Bosch, and Herbert E. Smith in his own -behalf, in the matter of intervention of ownership, to which action the one prosecuted in the said District Court of San Juan by said Mariano Pesquera y Goenaga, against Herbert E. Smith, aforesaid, and José Wenar, for the rescission of a contract, have been consolidated, said consolidated actions pending before us on appeal in cassation for error of law, now appeal, taken by Clara (sic) May Belden de Smith and Mariano Pesquera ;y Goe-naga, from the judgment rendered by aforesaid District Court,'which literally reads:
    
      “Judgment: In the City of San Juan, Porto Pico, October 3, 1902. In view of this declaratory action prosecuted by Cora May Belden de Smith, a resident of Mayagüez, engaged in the occupations of her sex, first represented by attorney Santiago R. Palmer, and afterwards by Luis Freyre Barbosa, as plaintiff1, against Mariano Pesquera y Goenaga, a resident of this city and a property owner, and Herbert E. Smith, a resident of Mayagüez and attorney-at-law, defendants, the former represented by Wenceslao Bosch Esq., and the latter by himself, in the matter of intervention of the ownership of property in the possession of Smith, attached by Pesquera, this suit and the .action prosecuted by said Pesquera against the said Smith and José Wenar, for the rescission of a contract having been consolidated. ■
    On February 3, 1903, Mariano Pesquera brought an action in the District Court of San Juan, for the rescission of a deed of sale executed on April 27, 1901, by Herbert E. Smith, in favor of José Wenar, before Notary Public Santiago R. Palmer, of a house and lot that Smith had acquired in Cataño,' Bayamón, from Julián José Ahedo; he prayed that said rescission be decreed, the sale having been made in fraud of creditors, and that the record thereof in the Registry of Property be canceled with costs against the party opposing the same, and that an entry be made in said Registry, showing that the ■complaint had been filed. The following facts were alleged: A year before this complaint was filed Pesquera applied to this court for a declaration of •ownership (dominion title) of certain lands situated in barrio “Minillas,” Santurce, which, proceedings Smith contested. In April, 1903, when the hearing in said proceeding was about to be had, Smith, in order to escape the payment of costs, by a deed dated as hereinbefore stated, alienated the aforesaid bouse and lot which he had acquired from Ahedo three months before. Thereafter Smith contracted marriage with Cora May Belden, purchased furniture, imported a coach, and set himself up as a person in easy circumstances. He was then notified that he had been defeated in his opposition, and the appeal in cassation taken by him haying been dismissed with costs, he failed to make payment of the costs of both proceedings to Pesquera, and has not paid any one who worked for him in said cause. The sale by Smith to Wenar was for fifteen hundred dollars, but the Notary did not certify that the delivery thereof was made, nor whether the same had been made by the purchaser prior to the execution of the deed. After the execution of the deed of the aforesaid fictitious sale, Smith mistrusting Wenar, prevailed upon the latter to make a voluntary conveyance to the former’s wife, Cora May Belden, not only of the Cataño house and lot, but of all the furniture, coach and pia.no, some purchased and others owned by Smith before his marriage. The deed of voluntary conveyance was also executed before Notary Public Palmer, on October 2, 1903, and through these opeiations Smith had attained the legal condition of a pauper, owning nothing upon which an attachment could be levied, and thus Pesquera is unable to recover-the costs due him by Smith. As legal authorities plaintiff cited: articles 1261, 1274, 1290, 1291, 1294 and 1297 of the Civil Code, articles 39 to 41 and 37 of the Mortgage Law and Rule 47 of General Order No. 118.
    The complaint being admitted and a notice thereof having been entered in the Registry of Property, Herbert E. Smith on his own behalf and as attorney for José Wenar, filed a petition asking that, as to the main issue, the complaint be dismissed and not be answered until the proceedings to avoid litigation had been held, with costs against the plaintiff. He prayed that all the claims of the plaintiff be dismissed and defendant absolved, with costs against plaintiff, and denying the facts alleged in the complaint. He alleged that in said complaint it does not appear that any contract in fraud of creditors was made, and that the imposition of costs against a party does not give him the character of a debtor. He cited as the law to be applied in the case, articles 609, 1297, 1296 of the Civil Code, and 1156 of the Law of Civil Procedure.
    The court, upon this answer to the complaint, ordered a suspension of the hearing until the proceedings to avoid litigation were had, whereupon Pes-quera moved for a rehearing, which motion was allowed and a day was set for the parties to appear and offer such evidence as they might deem proper.
    On December 28, 1901, Cora May Belden de Smith filed a complaint in intervention against Mariano Pesquera and Herbert E. Smith, claiming the furniture attached, by the former and accompanied by a deed executed in her favor on October 2, 1901, before Notary Public Santiago R. Palmer, by José Wenar, wherein it is stated that Ethelbert Davis Thomas, a resident of Petersburg, Virginia, had remitted to the latter three thousand and fifty dollars, instructing him to constitute an undetermined dower in favor of said Cora, including in said dower a piece of city property owned by Wenar, and valued at one thousand five hundred dollars, said property being a frame house with an iron roof, and the lot upon which it is built, situated on Tran-vía Street, in the barrio of Cataño, Bayamón, which had been purchased by Wenar from Herbert E. Smith, according to deed of April 7, 1901, the furniture being specified later, the said furniture, and the real estate constituting the dower in favor of the said Cora; such real estate and furniture so transferred as a dower did not effect a sale to her husband, to whom she delivered the property as an undetermined dower, Smith acknowledging the receipt thereof and Cora accepting the gift; this instrument being recorded in the Registry of Property on October 5, 1901. She prayed that said property be declared to belong to her, and that any one contesting her complaint be adjudged to pay damages.
    It is,alleged that said complaint is based upon the deed mentioned in the foregoing finding of fact; that in proceedings instituted by Pesquera for the purpose of securing a declaration of ownership (dominion title) to some property, Smith, when a single man, had made opposition thereto which was overruled 'with costs against him, the taxation whereof was effected during his absence in Mayagiiez, that notice might thus be served upon him by judicial decree; that at the residence of the married couple, in Cataño, an attachment had been levied on a piano, two rocking-chairs, a night table, a bric-a-brac cabinet, a stool, a chair, a screen, a sofa, a dining-table, a refrigerator, a stove, a sideboard, two arm-chairs,, two chairs and oak bric-a-brac stand, which form part of the dower of Mrs. Smith; that accord- I ing to the law a dower consists of property brought by the wife to the marriage by gift, inheritance or legacy, as such dower, that property constituting a dower cannot be levied upon to satisfy matrimonial - debts, and citing articles 1530, 1531, 1533 and 1537 of the Law of Civil Procedure.
    Notice of this complaint in intervention having been served upon Pesquera in his answer thereto, he prayed that the same be dismissed; that the contract of donation executed by Wenar in favor of Cora May Belden before Notary Palmer, be rescinded, and the record of the house and lot canceled, with costs against the plaintiff in intervention, and that his cross complaint filed at the -same time be sustained. The following facts were set up, to-wit: That he had instituted proceedings for the purpose of securing a declaration of ownership of certain lands (dominion title) in Santurce, which had been contested by Smith, and the hearing having been had in April, 1901, foreseeing a defeat, be decided to place himself in a condition of legal insolvency, and through collusion with Wenar, sold to the latter the house in Cataño which he had acquired from Julian José de Ahedo, as described in the deed of April 27, 1901; that after executing said deed he went to the United States, married there the plaintiff in intervention, and purchased furniture; that the suit between Smith and Pesquera was decided, the Court ■dismissing the opposition with costs, his appeal in cassation from said decision being similarly disposed of, which costs he failed to pay; that it was not true that the taxation of costs had been approved during his absence; that to complete the work of deceit he had begun, and mistrusting Wenar, he induced him to make an unappraised donation of the house Smith had sold him and the furniture belonging to Smith, in favor of the latter’s wife, Cora> which was done by deed of October 2, filed by the plaintiff in intervention; that owing to these contracts Pesquera has no means of recovering said costs; that Wenar has not purchased nor received any of the furniture specified in the deed, everything therein stated being false and intended to prejudice Pesquera; that some of the articles of furniture given as a dower, in fulfillment of a commission, had belonged to Smith before his marriage, and others were received directly, consigned to, and paid for by him; all the facts stated in the complaint which do not agree with those above set forth are denied, ■and as law, articles 1261, 1274, 1335, 1290, 1291, 1294 and 1297 of the Civil Code are cited.
    Notice of the cross-complaint having been served upon the plaintiff in intervention, she prayed that the same be dismissed with costs, alleging that the house had not been sold by deed of April 27, 1901, and Smith had nol purchased any expensive furniture; that the District Court had overruled Smith’s opposition, but the latter had acquired in good faith and by just title some lands which have not been located, and she sustained the charge that the taxation of costs had been approved during Smith’s absence, and denied the truth of the facts stated in the answer, as to deceit and Smith’s mistrust of Wenar, and the allegation that Wenar had not received nor purchased the furniture mentioned in the deed, some of which it was alleged had been purchased by Smith before his marriage and some received and paid for by him; article 1290 of the Civil Code is cited as the law, and it is alleged that there has been no fraud of creditors, that Smith is not in the state of insolvency imagined by Pesquera, and that he did not make the donation.
    The taking of evidence was ordered by the court, and the introduction of such as had been proposed having been proceeded with, and before a day had been set for the oral hearing, Pesquera requested that the aforesaid action for a rescission be consolidated with the one in intervention, which request was granted with the consent of both parties.
    Prom the evidence introduced by the plaintiff in intervention, besides the deed mentioned in the fourth finding of fact, it appears that a farm in Morovis consisting of seventy cuerdas of land, recorded in his favor in the Registry of Property of Arecibo, had been awarded to Smith for three hundred and fifteen provincial pesos and interest thereon, which is corroborated by a certificate of the Registrar of said district, and adding that the inscription was in force on April 21 last, when the certificate was" issued; another certificate, issued by the clerk of this court was filed, the same being a copy of the record in the proceedings instituted by Pesquera to secure a declaration of ownership (dominion title) which was contested by Smith, wherein it is stated that after two postponements of the hearing in said proceeding, the same was set for May 10, 1901, and continued until the 12th when it was terminated, judgment being rendered on the 15th; that on November 14, the taxation of costs was submitted to the parties, Smith being notified by publication on the 19th, in the manner provided by law, said taxation being approved on the 26th, whereof Smith was likewise duly notified by publication, and for this reason presented a written application in order that he might examine the same and take proper action in the matter, his application being denied; a copy of Pesquera’s petition asking that said costs be collected by compulsory proceedings, which was granted on December 11, 1901; a certificate dated January 29, of the institution of the action in intervention of ownership aforesaid; papers in connection with the attachment of the furniture in Smith’s house, in Cataño, levied on December 23, 1901; a copy of Pesquera’s petition, of February 1, 1902, asking that the attachment be extended to the Cataño house and lot, inasmuch as a complaint in intervention of ownership of the furniture attached had been filed, which was granted, though it does not appear whether the attachment was levied or not; reply of the manager of the American Colonial Bank to the communication from the court, stating that according to the books of the bank, the balances in favor of Smith, during 1901, were: In April, fifty-four dollars and fifty-five cents; in October, forty-seven dollars and forty-six cents, and in December eleven dollars and forty-two cents; the testimony of two witnesses, one declaring that he was Smith’s agent in 1901, but is not now, and that in said year, at the end of September or October, he had made collections amounting to over two thousand dollars which were deposited in the Colonial Bank, not directly by the witness, and the other that Smith in 1901 was in a good position financially, that he had paid over to him several amounts, and in the Guardiola matter had delivered to him two hundred dollars.
    From the evidence introduced by Pesquera it appears that there was added a simple copy of the deed of sale of the Cataño house, executed by Smith in favor of Wenar, on April 27, 1901, three letters from Julián José de Ahedo, Pettingill & Keedy, and J. T. Silva Banking & Commercial Co., not acknowledged, and although the writers were offered as witnesses, this evidence was waived; and two letters from J. M. López and Geo. S. Latimer, likewise not acknowledged, nor were the persons whose signatures were attached thereto introduced as witnesses; a certificate issued by the clerk of the court containing Smith’s writing contesting Pesquera’s application for a declaration of ownership (dominion title) to a parcel of land in Santurce; of the order admitting the evidence offered by the parties in said proceedings, order postponing the oral hearing on account of Judge Savage’s failure to attend, there being no other judge to continue with the proceedings; of the judgment dismissing Smith’s complaint in opposition, with costs, and of the one rendered by the Supreme Court dismissing the appeal taken by Smith and imposing costs upon him; taxation of the costs of the Supreme Court, one hundred and twenty dollars, to be paid to Pesquera; taxation of the costs incurred in the District Court, three hundred and seventy-three dollars and seventy-eight cents, to be paid by Smith to Pesquera, making a total of four hundred and ninety-three dollars and seventy-eight cents; of the writ notifying Smith of the taxation of costs; of the order of November 26, 1901, approving said taxation and of the writ of December 2, same year, notifying Smith of the aforesaid order.
    A day having been set for the oral hearing of the consolidated actions, after the witnesses for the plaintiff in intervention had testified, both parties waived the testimony of other witnesses and the interrogatories they had in due time proposed, and their respective counsel made such arguments as they deemed proper. Presiding Judge Juan Morera Martinez prepared the opinion of the court. •
    “The action for rescission brought by Pesquera being based upon his inability to recover from Smith in any other manner the costs due him, and therefore the deed of sale executed in favor of Wenar should be rescinded under paragraph 3 of article 1291 of the Civil Code, as also the deed of donation executed by the latter in favor of Cora May Belden de Smith, it was necessary for him to prove that aforesaid deeds were the result of a collusion among the plaintiff in intervention, Wenar and Smith, or between the two last mentioned, for the purpose of reducing Smith to a condition of insolvency, so that Pesquera might be defrauded of the rights he sought to make good; for this, and nothing else, is the meaning of paragraph 3, article 1291, of the Civil Code, which is nothing more than the provision of Law 7, Volume 15, Partida 5, as is to be deduced from the words of the former where it says: ‘ ‘ Those executed in fraud of creditors, when the latter cannot recover, in any other manner what is due them.”
    The furniture in the Catano house occupied by Smith was attached on December 23, 1901, and the taxation of costs approved on November 26 of the same year; the house was sold by Smith to Wenar on April 27, 1901 and the deed of conveyance of said house as a donation by the latter in the name of Ethelbert David Smith, including furniture mentioned therein, was •executed on October 2 of the same year, and it has not been shown by any evidence whatever, that said furniture belonged to the defendant Herbert E. Smith, nor that the same and the house had been maliciously alienated by the debtor, with the knowledge of and in connivance with the purchase^ nor that he thereby had dispossessed himself of all the property he owned with which to satisfy Pesquera’s credit and thus willfully reduced himself to a state of insolvency.
    Prom the record it only appears that a request was made that the attachment be extended to the Cataño house, upon the institution of the complaint in intervention of ownership of the furniture attached, which was granted, and it does not appear that said attachment was levied, or that any had .subsequently been attempted upon this property of the debtor or that he had none.
    bTeither the sale nor the donation can be designated as gratuitous contracts with respect to Smith and Wenar, inasmuch as in the former there was a consideration, and in the latter it was stated that the property was received from the donor, for which reason it cannot be presumed that these contracts were fraudulent, and they cannot be considered herein, since the party does not maintain that they were made by persons against wrhom judgment had been rendered or a writ of attachment issued, which could not be proven.
    As the deed of donation was recorded and, therefore, the sale of the house by Smith to Wenar included therein, and it has not been shown that when ■said sale took place there was any cautionary notice in the Registry, these documents must be held to be valid inasmuch as it has not been proven that •the parties acquiring the property were aware of any fraud, since article 1537 in conformity with article 608 of the Civil Code, subjects all the provisions of Title 4, Book IY of said Code, to the provisions of the Mortgage Law, and although it does not extend to Title 2, Chapter 5, Book IV, in ■certain cases complicity or a knowledge of the fraud is needed, which, as •stated before, does not appear to have been proven.
    For the reasons above set forth, the complaint in intervention is sustained, .•and the rescission of the sale of the house and contract of donation, requested by Pesquera in his complaint and in the cross-complaint, is dismissed, as also the damages claimed by the plaintiff in intervention, not only because the .amount of the latter has not been proven, but also because the act originating the same has not been shown, and because, as the Supreme Court has held in numerous decisions, a person who resorts to the courts for the sole purpose • of making good a more or less questionable right, does not properly cause a damage, the imposition of costs being the only penalty applicable in each ^particular case, when untenable claims are dismissed.
    
      Some of the claims of each of the parties having been dismissed, there should be no special imposition of costs.
    We adjudge that we should dismiss and do dismiss the complaint for the rescission of the deed of sale of the house, executed by Herbert E. Smith in favor of José Wenar, on April 27, 1901, instituted by Mariano Pesquera, as also the cross-complaint filed by him to the complaint in intervention prosecuted by Cora May Belden, requesting that the deed of donation executed on October 2, 1901, by José Wenar on behalf of Ethelbert Davis Smith of said house and furniture, be annulled. Furthermore we should sustain and do sustain the complaint in intervention of ownership with reference to the furniture attached by aforesaid Pesquera; the attachment is accordingly ordered to be dissolved, and the owner of said furniture, Cora May Belden,. left at liberty to dispose of the same; the damages claimed in the latter’» complaint being denied without special imposition of costs.
    Thus by this our judgment do we pronounce, command and sign. — Juan Morera Martinez. — Henry F. Hord. — Juan J. Perea.
    Publication: The foregoing judgment was read and published by Presiding-Judge Juan Morera Martinez, at the public hearing had this third day of October, 1902. Certified by me, Eamón Falcón.”
    From this judgment counsel for Cora May Belden de Smith took an appeal in cassation for error of law, in so far as her claim for damages is therein dismissed and all the costs are not taxed against Mariano Pesquera y Goenaga, a similar appeal from aforesaid judgment being also taken by the latter. The record of the case having been sent up to this Supreme Court before which Luis Freyre Barbosa, Esq., appeared on behalf of Cora May Belden de Smith and Herbert E. Smith, Esq., on his own behalf and in the name of José Wenar, the appeal taken by Cora May Belden de Smith was proceeded with as an appeal in cassation, while the one taken by Mariano Pesquera y Goenaga, was declared abandoned, he having failed to appear for the purpose of prosecuting the same within the period provided for by law.
    In conformity with the Act of the Legislative Assembly, establishing the Supreme Court of Porto Rico as a Court of Appeals, approved March 12,1903, the appeal in cassation taken by Cora May Belden de Smith was conducted as an appeal. The record in the case was duly submitted for their information to attorneys Freyre and Smith and then to Wenceslao Bosch, Esq., who appeared on behalf of Mariano Pesquera for the purpose of contesting the appeal taken by Cora May Belden de Smith, and a day was set for the hearing at which attorneys Smith and Bosch were present.
    
      Mr. Freyre Barbosa, for appellant.
    
      Messrs. Smith and Bosch, for respondents.
   Mb. Justice Hernández,

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

The findings of fact contained in the judgment appealed from are accepted.

Counsel, for Mariano Pesquera y Goenaga having withdrawn the latter’s appeal from said judgment, and the other parties confining themselves only to opposing the same in so far as the prayer for damages made by the plaintiff in intervention of ownership is therein dismissed without special imposition of costs, the decision of this court should be confined to these particulars, leaving in force all the other points decided in the judgment appealed from.

Inasmuch as Cora May Belden de Smith has not proved, nor even attempted to prove, the existence of the damages •claimed by her, nor can these be considered as a necessary •consequence of the attachment levied at the request of Mariano Pesquera y Goenaga on property whereof she claims the ownership, in adjudging that such a claim did not lie, the trial court has acted in accordance with the law and the legal doctrine sanctioned by the Supreme Court of Spain in .several judgments rendered prior to the discontinuance of Spanish sovereignty in this Island, among others, those of January 9 and July 3, 1897.

Nor could the costs be taxed against Mariano Pesquera y ■Goenaga, inasmuch as he answered the complaint in intervention of ownership, praying that the same be dismissed, .and as this was done, as to the portion thereof referring to the damages, it is evident that he did not lose his case on all points, for which reason section 63 of General Order No. 118, series of 1899, invoked by counsel for Cora May Belden de Smith, is not applicable.

In view of the authorities hereinbefore cited we adjudge that we should affirm and do affirm, the judgment appealed from, in so far as it is declared therein that the damages claimed by the plaintiff in intervention, Cora May Belden de Smith, does not lie, without special imposition of costs, these points being included in the appeal taken by said plaintiff; all the other particulars contained in said judgment not having been the object of appeal, since Mariano Pesquera y Goenaga withdrew the one he had taken, remain in force, the costs of the appeal of the plaintiff in intervention being taxed against her, Herbert E. Smith and José Wenar, who were parties to her claim. The record is ordered to be returned to the District Court of San Juan with the proper certificate.

Chief Justice Quiñones and Justices Sulzbacher and Mac-Leary, concurred.

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