
    Hermanitas de los Ancianos Desamparados, Plaintiff and Appellee, v. Ignacio Piñero Estrella et ux., Defendants and Appellants.
    No. 6439.
    Argued July 24, 1933
    Decided July 28, 1933.
    
      Jasé 8. Alegría for appellants. La Costa & La Costa, Jr., for ap-pellee.
   Mr. Justice Wolf

delivered the opinion of the Court.

“Las Hermanitas de los Ancianos Desamparados” brought an ordinary suit for the foreclosure of a mortgage against Ignacio Piñero Estrella and his wife, Francisca Her-náiz. The defendants answered making a general denial. The ease was set for a hearing. The plaintiff presented evidence hut the defendants did not appear. The court rendered judgment for the plaintiff and adjudged that the defendants pay the sum of $8,000, etc., and that if such amount was not paid the property should be sold at a public auction, and if the proceeds of the sale was not sufficient to cover the debt, the execution would lie against any other property of the defendants. The latter appealed and now we are considering a motion to dismiss the appeal as frivolous.

We hold that there was evidence at the trial tending to prove all the averments of the complaint. It is true that no certificate from the registrar of property was presented in respect to the mortgage, hut the mortgage deed itself showed that it had been recorded in the registry. The manager of the property took the stand to say in effect that the mortgage was overdue and that the interest had not been paid.

Perhaps some of the evidence might have been successfully objected to, but at a trial where the defendant does not appear, any probatory evidence, although not perfectly competent, may in the discretion of the court be considered.

We can not agree with the defendant that in a suit for the recovery of a mortgage all the procedure of a summary suit is necessary. The plaintiff is not then bound to show tjiat there were no other charges against the property or to deny the fact that there were other mortgages. These are all matters of defense. It may be that before attempting to execute the mortgage the plaintiff in self-protection would be bound to notify any other mortgagees, but there is no presumption that such other mortgagees exist.

The appeal is therefore frivolous and should be dismissed as such.

Mr. Justice Hutchison concurs in the result.  