
    Bank of Porto Rico, Plaintiff, v. Solá & Son et al., Defendants (Castro, Intervenor and Appellee, and Mitjans, Contestant and Appellant).
    Appeal from the District Court of San Juan, Section 2, in an Action to Recover a Debt and Cancel a Mortgage Record.
    No. 1703.
    Decided December 24, 1917.
    Attachment — Lien—Record of Attachment. — Under- section 71 of the Mortgage Law, a creditor who records his attachment obtains what is known to the English and American law as a lien on the property of the debtor. This right clearly excludes all persons whose claims against the property take their origin as of a date later than the recording of the attachment.
    Id. — Record of Attachment — Third Persons — Mortgage.—The object of recording an attachment in the registry is to warn third persons that if they acquire thereafter any claim to the property it will be lost if the lienor obtain a judgment in his favor, and this principle applies to one who takes a mortgage after the attachment is recorded.
    Id. — Id.—Mortgage—Notice.—A person who takes a mortgage after the recording of an attachment in the registry is in no sense such purchaser or owner of the property as is entitled to notice under the provisions of section 71 of the Mortgage Law. '
    The facts are stated in the opinion.
    
      Messrs. Abella Bastón and Andrés Mena for the appellants.
    
      Messrs. José and Manuel Tons Soto for the appellee.
   Mk. Justice Wole

delivered the opinion of the court.

The issue in this appeal is between the rights of an attachment creditor and a mortgagee whose mortgage was executed and recorded after the caveat or cautionary notice of the creditor was filed. The interpretation of section 71 of the Mortgage Law is involved. We transcribe it:

“Art. 71. — Real property or property rights against which cautionary notices have been entered may be alienated or encumbered, but without prejudice to the right of the person in whose name the cautionary notice was entered.
“If the real property or rights against which cautionary notices have been entered in accordance with the provisions of subdivisions 2 and 3 of article 42 should be awarded to a plaintiff under judgment rendered in an action brought by him, or if it should become ,necessary to advertise them for sale at auction, the person who may have acquired such property or rights during the litigation shall be notified of the award or advertisement.
“Such notice shall be served on motion of the plaintiff after the final judgment of award shall have been rendered or before the sale in the compulsory proceedings takes place, following the provisions of articles 260 to 269 of the Law of Civil Procedure in force in the Antilles and articles 244 to 253 of that in force in the Philippines.
“After service of the notice referred to in the foregoing paragraph, the person notified may release the property in question upon payment of the amount mentioned in the entry, as principal and costs, although it is not to be understood that he is obliged to pay a larger sum for costs than that mentioned in the entry. Should he fail to do so within 10' days, the record of his ownership shall be canceled in the registry, as well as any other records which may have been made after entry of the cautionary notice, to which end the proper order shall be issued to the registrar of property on motion of the person to whom the property was awarded or of the purchaser thereof.
“If the conveyance made and recorded during the action relates to an estate the ownership of which had been claimed by an action of which a cautionary notice had been entered, in accordance with subdivision 1 of article 42 of this law, .a certified copy of the final judgment in favor of the ownership of the plaintiff shall be a valid title for its cancellation by virtue thereof.
“Final judgments imposing the penalty of interdiction, or declaring the disability of a person to administer his property, or modifying his: civil ability with reference to the, free disposition of his property, shall be sufficient authority for the cancellation of records of conveyances made during the course of the proceedings by the person who has been declared incapacitated, provided a cautionary notice of the complaint upon which the order was based shall have been entered in accordance with the provisions of subdivision 5 of article 42.”

Under this law a creditor filing the 'caveat obtains a right to a debtor’s property known to the English and American law as a lien. This right clearly excludes all persons whose claims against the property take their origin as of a date later than the registry of the caveat. In Dávila v. Registrar of Humacao, 24 P. R. R. 663, cited by appellant, we said that the object of making an entry of a complaint is to warn other persons that if they acquire thereafter any, claim to the property it will he lost if the person causing the entry obtains a judgment in his favor. That case supposed rival claims to property, but a similar principle applies to one who takes a mortgage after caveat filed.

Appellant draws our attention to the fact that the Mortgage Law requires a notice of sale of property to one who buys of a debtor. Tbe principle of tbe law tbat one wbo is prior in time is prior in law being applicable, tbe creditor in tbis case bad a preference. The subsequent mortgagee is in no sense a purchaser or owner of the property. He has a contract of loan secured by tbe land, but there is nothing in said section 71 that requires a notice to a subsequent mortgagee. When the mortgagee in tbis case accepted tbe mortgage be knew tbat the machinery of tbe law was already invoked against tbe debtor. Tbe legislature may have wanted, as frequently is tbe case, to protect tbe person in possession, but whatever tbe legislative reason there was not tbe slightest intention shown to make it necessary for an attaching creditor to notify a subsequent mortgagee.

There was a sale of tbe property to satisfy tbe attachment and the purchaser was a certain Robledo wbo sold to Castro, appellee in tbis case. Appellant says tbat tbe bank tbat made tbe attachment is tbe only person wbo can ask tbe cancellation of tbe mortgage, but we think Robledo and then Castro necessarily acquired all tbe rights of tbe .bank in tbis regard. And we also think tbat Castro acquired tbe property free of tbe mortgage and was entitled to a cancellation of an apparent encumbrance.

There were other averments of error which are not assigned as required by tbe rules of tbis court and otherwise need not be considered. Appellants should file a separate assignment of errors and not be, content to discuss them in a narrative form in tbe brief.

Tbe order appealed from must be

Affirmed.

Justices del Toro and Hutchison concurred.

Chief Justice Hernández and Justice Aldrey absent.  