
    Hidalgo v. García de la Torre.
    Appeal from the District Court of Mayagüez.
    No. 78.
    Decided June 27, 1903.
    Cautionaby Notice of Attachment — Cbeditobs.—The cautionary notice of attachment granted by judicial decree and entered in the registry of property is intended solely to guarantee the results of a trial, and does not alter the nature of obligations, nor convert a personal action into a mortgage action, its only effect being that the creditor who obtains it in his favor shall have preference only with regard to the property entered, over those who have another claim against the same debtor contracted on a date subsequent to said entry.
    Mobtgage — Week Constituted. — A mortgage becomes validly constituted upon being entered in the registry of property, and the fact that said entry was made on a date subsequent to that of the cautionary notice of attachment levied upon the same mortgaged property cannot impair the right acquired by the mortgagee over said property prior to the entry of the cautionary notice of attachment.
    Id. — Effect.—-A mortgage subjects the property which it incumbers directly and primarily to the fulfillment of the obligation for the security of which it was executed.
    
      STATEMENT OE THE OASE.
    This is an appeal in cassation, now appeal, pending before us, taken by Felix García de la Torre, a property owner and resident of the City of Mayagiiez, represented by Jacinto Texidor, Esq., the respondent being Ignacio Hidalgo y Domingo, a lawyer and resident of said City, represented by Pascasio Fajardo y Cardona, Esq., in a declaratory action for the cancellation of a mortgage recorded in the Registry of Property and of any other entry relating thereto that may he found in said Registry, the object of aforesaid appeal being the reversal of a judgment rendered by the District Court of Maj'agiiez, which literally reads as follows:
    “In the City of Mayagiiez, October 16, 1902. A hearing having been had in this civil suit, brought by Ignacio Hidalgo y Domingo, a lawyer domiciled in this City, represented by Pascasio Fajardo y Cardona, Esq., against Felix García de la Torre, a property owner and resident, represented by Juan Quintero, Esq., for the cancellation of a mortgage and of such entries as may have been made in the Registry in connection therewith.
    1. Ignacio Hidalgo y Domingo brought an action in the District Court of Mayagiiez, against Felix García de la Torre, praying that judgment be entered ordering that the record of a debt secured by mortgage appearing in the Registry of Property, in favor of aforesaid García de la Torre be canceled, as also any other entry or notice relating thereto, and that the costs be taxed against him. Plaintiff alleged the following facts: That Victor Libran was indebted to Lorenzo Martinez Chu viñas for a certain sum of money for which he had given his note of hand, and Martinez having obtained judgment in a suit for the recovery of said debt, an entry was made of a writ of attachment issued on April 23, 1896, by the court upon a farm belonging to Libran which was not then recorded in his favor, nor had any mortgage been entered against in it favor of García de la Torre. On April 13, 1897, Martinez’s suit having reached the stage of execution proceedings, a request was made that the Registrar issue a certificate of the encumbrances, which request was denied. Martinez then requested that summary proceedings to acquire possession be instituted in order that his attachment might be entered, and when this had been done, García de la Torre, on March 28, 1898, recorded a mortgage on said farm which was executed on March 1, 1895. As a result of the suit of Martinez against Libran, the farm was awarded to the former’s assignee, Ignacio Hidalgo,' free from all encumbrances, according to a public instrument executed by the court. Plaintiff cited in support of his claim, articles 70 and 82 of the Mortgage Law, as also 125 thereof and 160 of the Regulations governing same, and the principle prius tempore, prius jure.
    
    2. — In his answer to the complaint García de la Torre prayed that the same be dismissed because it was unjust and improper, and that the costs be taxed against Ignacio Hidalgo, and alleged that by public instrument executed March 1, 1895, before Mariano Riera Palmer, a Notary Public of this City, and recorded in the Registry of Property, Victor Libran acknowledged that he was indebted to him in the sum of five thousand three hundred and fifty pesos, which he agreed to pay in three installments, the last maturing in December, 1897, to secure which he had mortgaged a farm situated in the municipal district of Las Marías. Libran had failed to pay the amount of said mortgage and as the property thus encumbered is now in possession of Ignacio Hidalgo who acquired it from the Succession of Libran, Hidalgo is bound to satisfy the mortgage, especially as in his complaint he recognizes the existence of said public instrument and its admission to record in the Registry of Property. The defendant, he alleged, was not required to introduce any evidence in regard to the existence of said deed and its admission to record, since the burden of proof was upon the plaintiff, and if the latter failed to introduce full and satisfactory evidence, his complaint should be dismissed with costs on the ground that it is frivolous (temerario), especially as Hidalgo has not shown, nor could he in any manner show, that the mortgage debt, existing in favor of defendant and encumbering the property held by the plaintiff, has been extinguished.
    3. — A day being set for the proposal of evidence, the plaintiff proposed that various documents filed in the action brought by Lorenzo Martinez be detached and joined to the record, and that several certificates from the clerk’s office be submitted.
    4. — The- defendant, José Felix García de la Torre, proposed that the record of the summary executory proceedings prosecuted against Ignacio Hidalgo be introduced at the trial, but instead of this the court ordered that the registered public instrument giving rise to the execution be introduced if permissible at that stage of the proceedings.
    5. — Accompanying the evidence introduced by the plaintiff there appears a deed executed September 12, 1899, whereby the court winch was composed of judges Juan J. Perea y Baster, Enrique Lloreda y Casabó and Felipe Casalduc y Goicoechea, all the legal requirements having been complied with, in the name and by default of the estate of Victor Libran, awarded in perpetuity the property upon which the attachment was levied, for the full amount of the debt, stipulated interest thereon and costs, free from all charges and incumbrances, and there was also filed with the record of these proceeedings a certificate of the Registrar of Property from which it appears that a cautionary notice had been entered in the Registry of Property of this City, affecting a farm situated in barrio “Rio Cañas-arriba”, formerly “Furnias”, within the municipal district of “Las Marias”, bounded on the north by lands belonging to Pedro Hernández, on the south by those of Ramón Torres, on the east by those of Leon Olivieri and the road to barrio “Anones”, and on the west by other lands belonging to Victor Libran, the whole covering ninety-one cuerdas, more or less, with several buildings situated thereon, had under date of August 5, 1897, been converted into a final record; and that a mortgage on said property in favor of José Felix García de la Torre, was recorded in the Registry under date of March 28, 1898, the award made by the court in favor of Ignacio Hidalgo, being also recorded.
    6. — The plaintiff likewise submitted the decision of the court refusing officially to cancel José Felix García de la Torre’s mortgage, holding that such cancellation should be made the object of controversy and decreed by judgment after a trial in which those interested in the records or cautionary notices were heard.
    7. — By deed No. 310, executed on March 1, 1895, it has been duly proven that Victor Libran had constituted a mortgage in favor of José Félix García de la Torre on a farm consisting of 91 cuerdas, the same property that had been attached by Lorenzo Martinez for a debt assigned to Ignacio Hidalgo y Domingo, the deed whereof was recorded on March 28, 1898, according to a memorandum affixed thereto by the Registrar of Property.
    8. — A day being set for the trial, the evidence proposed was introduced; counsel for both parties presented their arguments, and a day was fixed for rendering judgment which was unanimously concurred in by the judges ■composing the court.
    9. — In this trial all the legal requirements have been complied with. In the absence of the American Judge, Mr. Erwin, Presiding Judge Arturo Aponte y Rodriguez prepared the opinion of the court.
    1. — On March 1, 1895, Victor Libran executed before Notary Mariano Riera Palmer a document in favor of José Félix García de la Torre, whereby the former agreed to pay the latter the sum of five thousand three hundred and fifty pesos in the money then in circulation, said payment to be made in three installments therein specified. Aforesaid debt was secured by a mortgage on a farm consisting of 91 cuerdas, more or less, situated in barrio “Furnias”, within the municipal district of “Las Marias”, the boundaries whereof were stated in the instrument. Though this document was presented ■at the Registry of Property for admission to record in the year 1895, owing to a defect susceptible of correction, a cautionary notice of it was entered to have effect during sixty days, and no extension of this time appearing to have been made, it was recorded on March 28, 1898, after the aforesaid defect had been corrected.
    2. — This same property was attached in an action prosecuted by Lorenzo Martinez against the said Victor Libran and by virtue of an order to the Registrar of Property, December 5, 1896, a cautionary notice of said attachment was entered on the 21st of the same month, which notice was-extended and made final' on August 5, 1897.
    3. — The property was offered at public auction and awarded to Ignacio Hidalgo y Domingo, assignee of Martinez, by deed of September 12, 1899, executed before Notary Mariano Riera Palmer, it being stated therein that the conveyance was to be understood as free from all charges and incum-brances, according to the record which the Notary had before him.
    4. — The attachment of the creditor Lorenzo Martinez having been recorded in the Registry of Property prior to the presentation of the deed of mortgage in favor of José Felix García de la Torre, and the farm on which the attachment was levied having been awarded to Ignacio Hidalgo free from all charges, it is not possible under the Mortgage Law to make effectual a title subsequently recorded, either because Lorenzo Martinez, now Ignacio Hidalgo, is clothed with the character of a third person, according to article 27 of the law governing the matter; or because, according to articles 23, 25 and 26, titles not recorded cannot prejudice third persons, and even such as have been recorded can be effectual against the latter only from the date of record, to be reckoned from the date of its presentation at the Registry; or finally, because the question is one of rights arising from a cautionary notice which has been converted into a final record, according to article 70 of the Mortgage Law.
    5. — Under the civil law, and according to the provisions of paragraph 4 of article 1923 of the old Civil Code, with regard to certain real property and property rights of the debtor, preference shall be given to credits of which a cautionary notice has been made in the Registry of Property by virtue of a judicial decree by reason of attachments, sequestrations, or the execution of judgments affecting the property entered therein and only with regard to subsequent credits, ahd it is evident that if José Felix García de la Torre recorded his mortgage on a date subsequent to Lorenzo Martinez’s cautionary notice, which now appertains to Ignacio Hidalgo, it cannot be said that he has any property right over said cautionary notice, especially since he did not urge such a claim by means of a complaint in intervention during the course of the action in which the entry of the said cautionary notice was decreed, nor did he allege at that time that his claim of title was based upon a mortgage, or that his was a personal credit, if the latter were deemed by him more legal and proper.
    6. — Wherefore, inasmuch as José Felix García de la Torre had recorded his mortgage on a date subsequent to the cautionary notice of Martinez, and the time haying arrived for the adjudication of the property to the party foreclosing upon the same in settlement of his credit, that of García de la Torre, which was not entered at the proper time, must be treated as a subsequent claim; for such is the consequence of neglecting to present at the Registry without loss of time such titles as should be entered upon the record, if expected to operate to the prejudice of a third person; whence it is to be inferred that under the Mortgage Law, although presentation for record is not obligatory, it is often necessary.
    7. — Costs must be taxed against the litigant whose claims are in all things dismissed.
    In view of the authorities cited above, and article 1517 of the Law of Civil Procedure and section 63 of General Order No. 118, series of 1899, we adjudge that we should declare and do declare that the complaint is sustained, and therefore the record entered in the Registry of Property in favor of José García de la Torre on March 28, 1898, is accordingly ordered to be canceled, together with all entries referring thereto, and that the necessary instructions be forwarded in duplicate to the Registrar of Property of this District; the costs are taxed against José Felix García de la Torre. Thus by this our judgment do we pronounce, command and sign — Arturo Aponte — Luis Mendez Yaz- — R. Roura”.
    Notice of this judgment having been served upon attorneys Pascasio Fajardo and Juan Quintero, the latter on behalf of the defendant, took an appeal in cassation based upon the authorities cited in his notice of appeal, and especially articles 44 and 105 of the Mortgage Law, paragraphs 3 and 4 of article 1923 of the old Civil Code (being article 1824 of the Revised Code), and paragraph 2 of article 1927, and the jurisprudence contained in the judgments of the Supreme Court of Spain, of June 17, 1875, April 5, 1878, October 10, 1882, and October 26, 1888.
    This appeal being allowed, the parties were cited and the record forwarded to this court where in due time the parties appeared. No brief was filed by counsel for either party, who orally argued their respective cases, counsel for appellant in support of the appeal and counsel for respondent contesting the same.
    
      Mr. Texidor, for appellant.
    
      Mr. Fajardo, for respondent.
   Mr. Justice MacLeary,

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

The findings of fact contained in the judgment appealed from are accepted. According to the express provision of article 44 of the Mortgage Law, and the jurisprudence established by the Supreme Court of Spain, and followed by this Court in several cases, such as the decisions of November 1, .1902 and February 26, 1903, a cautionary notice of attachment granted by judicial decree and entered in the. Registry of Property, being intended solely to guarantee the result of a trial, does not alter the nature of obligations, nor can it convert a personal action into a mortgage action, its only effects being that the .creditor who obtains it in his favor shall have preference, only with regard to the property entered, over those who may have other claims against the same debtor contracted subsequently to such entry.

The effects of the cautionary notice of attachment, entered at the request of Lorenzo Martinez, on lands belonging to Victor Libran, being limited to the extent hereinbefore stated, it cannot impair the mortgage right acquired in said lands by Felix García de la Torre under the mortgage deed executed in his favor by aforesaid Victor Libran prior to the entry of the attachment to secure a loan, notwithstanding the fact that the record of the former was -made after the entry of the latter, for when said record was once made, the requisite which was lacking in order that the mortgage might be validly constituted, was complied with pursuant to article 1876 of the Civil Code, and thereupon all its legal effects were necessarily produced.

According to paragraphs 3 and 4 of article 1923, and 2 of 1927, both of the old Civil Code, the credit of García de la Torre is entitled to preference' by reason of its character as a mortgage, over that of Lorenzo Martinez, now Ignacio .Hidalgo, with respect to the lands upon which the mortgage and attachment existed, inasmuch as the former, being a mortgage, directly and primarily affects the property on which it is imposed, pursuant to article 105 of the Mortgage Law, while the latter, being merely personal, can have preference only with regard to the property entered, over those who have other claims contracted subsequently to the cautionary notice of attachment, according to article 44 of aforesaid Mortgage Law; a condition which does not exist with regard to the credit of García de la Torre, which was contracted prior to the entry of the cautionary notice of attachment.

For the reasons above set forth, upon rendering iudgment decreeing the cancellation of a mortgage and all notices relating thereto, entered in the Registry of Property as prayed for by Ignacio Hidalgo, in an action brought before it, the trial court has violated paragraphs 3 and 4 of article 1923 and 2 of 1927. of the old Civil Code, and articles 105 and 44 of the Mortgage Law, as also the legal doctrine announced in the judgments hereinbefore mentioned, there being no need of considering the other points upon which the appeal is based.

We adjudge that we should reverse, and do reverse, the judgment rendered by the District Court of Mayagtiez on October 16, 1902, and accordingly dismiss the action brought by Ignacio Hidalgo against José Felix García de la Torre, with costs of the proceedings in the trial court against plaintiff, and without special imposition of costs on appeal. This decision is ordered to be communicated to the court below and the record returned for compliance herewith.

Chief Justice Quinones and Justices Hernández and Fi-gueras, concurred.

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