
    Moreno v. Heirs of Bahr.
    Appeal in cassation from the District Court of San Juan.
    No. 43.
    Decided February 4, 1903.
    Appeals. — Appeals based upon error in the consideration of evidence must be formulated in conformity with paragraph 7 of Article 1690 of the Law of Civil Procedure; if errors of fact, stating the act or authentic document which shows the evident error of the judge, and, if of law, citing the law or legal doctrine alleged to have been violated.
    Promissory Notes. — A promissory note made payable “to order” and arising-from a commercial transaction, produces the same obligations and effects as a bill of echange.
    Actions arising erom Promissory Notes. — Actions arising from promissory notes of commerce, like those arising from drafts, extinguish three years after falling due, whether they have been protested or not.
    Alienation oe Prpperty in Fraud. — Alienation of property including real estate recorded in the registry of property may be rescinded only when made in fraud of legitimate creditors, a capacity not possesed by a creditor whose action has extinguished through failure to sue within the period prescribed by Article 950 of the Code of Comerce.
    STATEMENT OP CASE.
    On the 11th of July, 1900, Antonio Moreno Calderón' Esq., on behalf of Antonio Moreno San tí, filed a petition in the District Court of San Juan, requesting that an attachment be levied on the property of Adolfo Bahr, to' secure the payment of six thousand pesos, provincial currency, due by the latter to the former, according to the accompanying promissory note, signed by the debtor on July 1, 1892, and made payable at the rate of one hundred and twenty-five pesos per month. Said attachment being duly decreed for account and at the risk of the petitioner, Don Antonio Moreno Santi, and the order forwarded to the Municipal Judge of Arecibo to be carried out, it was levied on a farm belonging to the debtor, composed of 407 cuerdas, situated in barrio “Islote” of said municipality, but when the writ was presented to the Registrar of Property of the District for the purpose of recording the attachment, he refused to make the entry according to the memorandum placed at the end of the writ, because the property was recorded in favor of a different person from the one against whom the attachment had been decreed.. Then on the 1st of August following, the said Antonio Moreno Calderón, on behalf of Antonio Moreno San tí, brought in the District Court of San Juan, the action giving rise to the present litigation, against the heirs of-Adolfo Bahr consisting of his mother, Nieves Girau, and his widow Monserrate. Colón y Bonfiglio, and against Julián Muro, all residents of Arecibo, alleging that the promissory note signed in his favor by Adolfo Bahr was for money lent by him to the latter, to be returned at the rate of one hundred and twenty-five pesos per month; that some of these monthly installments were paid, although plaintiff is unable to state how many, but affirming that they were not enough to cover the debt, the balance remaining unpaid, despite his repeated demands; that the debtor, Adolfo Bahr, had died leaving a holographic will whereby he appointed his mother and his wife his sole heirs, recognizing various debts but failing to mention the one in favor of plaintiff, Antonio Moreno Santi; that in said testament Bahr declared that all is property consisted of a farm called “Monserrate,” situated in' barrio “Islote,” in the municipality of Arecibo, upon which the attachment had been levied at the solicitation of plaintiff, on the 13th of the preceding month of July, the order to the Registrar of Property being issued on the following day, which was Saturday, and having been presented after twelve o’clock noon of that day it could not be recorded; that on Sunday . July 15th, though a holiday, the heirs of Adolfo Bahr had hastened to transfer the title of the farm, which was the only property left by deceased, to Julián Muro, by deed of sale executed before Notary Juan Zacarías Rodriguez, without satisfying all the claims of the creditors of the estate or as far as he knew, without depositing, any sum in cash, or retaining sufficient property to meet the full amount of the obligation claimed; for which reasons, invoking in his favor the provisions of the Civil Code relating to the extinction of obligations by payment or fulfillment thereof, the obligation imposed upon an heir by the acceptance, pure and simple, of the inheritance, to pay all the debts of deceased even with his own property, and in regard to the nullity of contracts executed in fraud of creditors, and citing further the provisions of Judicial Orders of March 6 and 20, 1899, he prayed that his complaint be sustained and the simulated and fraudulent deed of sale of the farm “Monserrate” situated in the ward of “Islote”, within the municipal jurisdiction of Arecibo, executed before Notary Juan Zacarías Rodríguez, on July 15, 1900, by the heirs of Adolfo Bahr in favor of Julián Muro, be declared’ null and void, as also the record thereof in the Registry of Property, and that the heirs of Adolfo Bahr, namely, Nieves Girau and Monserrate Colón y Bonfiglio, be adjudged to pay to Antonio Moreno Santi, of the city of San Juan, the sum of six thousand pesos, the amount of the debt claimed, with legal interest accruing from the date of default, and costs. Copy of the complaint having been served upon Nieves Girau, Monserrate Colón and Julián Mu-ro, defendants, an answer was filed by their counsel Herminio Díaz Navarro, denying the allegations of the complaint, and alleging in support of their denial that on the 8th of August 1899, Adolfo Bahr and Antonio Moreno Santi had formed a limited partnership under the firm name of Bahr & Co., with a capital of forty thousand pesos, whereof ten thousand pesos were contributed by Bahr, and four thousand by Moreno Santi, as silent partner, said partnership being the liquidation of the one which under the same firm name had been in existence since 1883; that in April of the year 1892, while Moreno Santi was in Madrid, his partner Bahr had written him a letter offering to buy his share in the partnership amounting then to about seven thousand and odd pesos capital and part of the earnings, for- six thousand pesos, payable at the rate of two thousand pesos a year, for which he would give him his promissory notes, with interest at six per cent, per annum; that on the 30th of June of the same year 1892, by deed executed before Notary Mauricio Guerra, Adolfo Bahr and Moreno Santi declared the dissolution of said partnership and formed another one under the same firm name, the duration of which should be ten years, with a capital of seventeen thousand one hundred pesos, of which seventeen thousand was contributed by Bahr, and one hundred by Moreno Santi, as silent partner, the former alone to take charge of the liquidation of the late firm; that the seventeen thousand pesos contributed by Bahr to this new partnership proceeded from the ten thousand pesos of his capital in the former partnership, and the seven thousand pesos of Moreno Santi’s capital and his share of the profits; that on the day after signing the deed of the new. partnership on June 30, 1892, that is to say, on the first of July following, Bahr had given Moreno Santi his promissory note for six thousand pesos, value received, binding himself to pay said sum in monthly installments of one hundred and twenty five pesos, to begin with the month of the execution thereof; that although in the deed of June 30th it was stated that Moreno had sold to Bahr his interest in the concern amounting to seven thousand pesos, for three thousandpesos received,.this had been done for the purpose of avoiding the payment of higher taxes, but that in reality the transaction had been consummated for the six thousand pesos offered by Bahr, in accordance with the promissory note of July 1, 1892, which is evinced by the fact of its having been issued on the day after signing the deed of dissolution of the old partnership and the constitution of the new one; that on account of said promissory note Bahr, had made various payments up to May 1895 when, owing to poor business and his being unable to meet his . engagements in full, he entered into a private agreement with his creditors whereby all of his assets were assigned to them in satisfaction of all his liabilities, Moreno being a party to this agreement wherein a credit of nine thousand five hundred and fifty five pesos appeared in his favor; that subsequently to this agreement whereby Bahr had settled with all his creditors, up to the. time of his death which ocurred four years later, Bahr had not been molested by any of them, including Moreno, with claims of any sort, either judicial or extrajudicial; that Bahr had died on the 19th of December 1899, leaving a holographic will executed in Arecibo before the Notary public Juan Zacarías Rodrí-guez, wherein a list is given of all his debts, with the exception of that of Moreno, no doubt because he was convinced that it had been settled; that the “Islote” farm had in reality been sold by Monserrate Colón and Nieves Girau to Julián Muro, by public deed executed in Arecibo on July 15, 1900, before Notary Rodríguez, and recorded in the Registry of Property, for which reason the writ of attachment levied upon it could not be entered at the Registry; and invoking the provisions of the Civil Code relating to payment by assignment of property to creditors, and of the Code of Commerce referring to the prescription of actions arising from commercial contracts, especially those arising from promissory notes of commerce, which prescribe in three years, and the provisions of articles 33, 34, 36, 37, 39 and 41 of the Mortgage Law in force, and Judicial Orders regarding sham sales made for the purpose of defrauding creditors, defendant prayed that the complaint be dismissed with costs against the plaintiff. The stage in the proceedings for the introduction of evidence having been reached, and some of the evidence proposed by the parties having been heard and admitted, and othér evidence having been excluded, the District Court of San Juan rendered judgment, on February 28, 1902, wherein the exception of prescription alleged was sustained, the defendants Nieves Girau, Monserrate Colón and Julián Muro being absolved from all liability under the complaint, with costs against the plaintiff, Antonio Moreno Santi.
    From this judgment counsel for plaintiff took an appeal in cassation for violation of law, same having been allowed and the record of the proceedings haying been sent up to this court, and summons having been served upon the parties, and they having entered their appearance herein, the record was delivered to counsel for appellant in order that he might formulate his appeal, he having returned the said record, reiterating the contents of his notice' of appeal filed in the trial court. In the said document counsel for appellant based his appeal on paragraphs 1 and 7 of article 1690 of the Law of Civil Procedure, alleging as violated:
    First. — Articles 1, 3, 311 and 950 of the Code of Commerce, because Adolfo Bahr was not a merchant, inasmuch as he did not engage habitually in commerce, noi did the plaintiff, and on the other hand, it not appearing that the money lent had been applied to business transactions, the loan in question lacked the conditions required by article 311 of the Code of Commerce in order to be considered as a commercial loan, subject as such to the provisions of the aforesaid Code, which is furthermore confirmed by the fact that said loan was gratuitous, or without interest, contrary to the principle constituting commercial transactions, the object whereof is the realization of profit or gain.
    Second. — Article 1297 of the Civil Code and Judicial Order of March 20, 1899, which in specifying the cases wherein the sale of property to the prejudice of creditors is presumed to be fraudulent, do not except from their distinct provisions the alienation of real property, though the latter be recorded in the Registry of Property; therefore, if the law makes no distinction, the trial court had no power to make such distinction, as it did in the judgment appealed from.
    Mr. Moreno Calderón, for appellant.
    Mr. Alvarez Nava, for respondent.
   Mr. Chief Justice Quiñones,

after making the above statement of facts, delivered the following opinion of the Court.

In so far as the appeal is based on paragraph 7 of Article 1690 of the Law of Civil Procedure, namely, the error alleged to have been committed by the trial court in the consideration of the evidence, the appeal not having been formulated as prescribed by paragraph 7 of aforesaid article of the Law of Civil Procedure, since it fails to state what part of the evidence in the consideration of which the court below may have erred, or whether the error committed is of fact or of law, it being necessary to mention, in the first case, the act or authentic document which shows the evident error of the judge, and cite, in the second case, the law or legal doctrine relative to the value of the evidence, which has been violated, the appeal in so far as the same is based upon the aforesaid allegation cannot be decided-; wherefore the declarations made by the lower court in view of the evidence introduced on the trial must prevail. The promissory note involved herein having been made payable “to order,” and arising from a comercial transaction, as was the loan by virtue of which it was given, the debtor, Adolfo Bahr, having the capacity of a merchant, since he was habitually engaged in business, as manager of a regular commercial firm that had for many years been doing business in Arecibo, according to the declarations of the lower court, not controverted in due form, which conditions are the only ones required by Article 311 of the Code of Commerce, it is evident that the promissory note giving rise to this action is included among the bills and promissory notes payable “to order,” mentioned in Article 532 of the aforesaid Code, and as such should be dealt with according to the provisions thereof, and the lower court in so deciding correctly applied Articles 1, 3 and 311 of the Code of Commerce cited in the first ground of the appeal as having been violated. According to Article 950 of the same Code, actions arising from orders to pay and promissory notes of commerce, like those arising from drafts, prescribe three years after they have fallen due, whether they have been protested or not, and the time elapsed from the date when the note fell due to the date when the action was brought, without any attempt being made on the part of the plaintiff to recover the amount, as was also declared by the lower court, having greatly exceeded the term fixed by law, the action to recover had extinguished, and the District Court of San Juan, in so holding in the judgment appealed from has not violated, but, on the contrary, has correctly applied said'Article 950 of the Code of Commerce, also cited in the first ground of the appeal as haying been violated. As to Article 1291 of the Civil Code and the Judicial Order of March 20, 1899, referred to in the second allegation, neither could these have been violated, for although said legal precepts declare that alienations executed in fraud of creditors without excepting real property recorded in the Registry of Property, may be rescinded, both precepts are based upon the supposition that said alie-nations are made in fraud of legitimate creditors, a qualification which is not possessed by the plaintiff Antonio Moreno Santi, who has prosecuted no action against the estate of Adolfo Bahr other than the one arising from the promissory note in question, which had extinguished through failure to bing action within the term fixed by Article 950 of the Code of Commerce for- the prescription of actions arising from drafts .and promissory notes of commerce. For the reasons above set forth, the appeal does not lie and should be dismissed, with costs.

We should therefore declare, and do declare, that the appeal in cassation for violation of law, taken by Antonio Moreno Santi, does not lie, and impose upon him the costs.

Messrs. Associate Justices Hernández, Figueras, Sulz-bacher, and MacLeary, concurring.  