
    Ex-Parte Caraballo.
    Appeal fron the District' Court of Arecibo.
    No. 82.
    Decided November 17, 1903.
    Possession. — When proceedings are begun to secure a declaration of possession in accordance with the formalities mentioned in article 391 of the Mortgage Law, the Court should allow the same to be prosecuted without prejudging questions which in all eases should be raised by the parties concerned who desire to oppose the same in a declaratory suit before the proper court; or which should be reserved to the registrar of property to be raised by him, with the necessary facts taken from the records of the Registry.
    STATEMENT OE THE CASE.
    This is a proceeding instituted in‘the District Court of Arecibo, by Maria Juana Caraballo, in her own right and on behalf of her infant children, named Jesús, Loreto, Lorenzo, Martina and Santiago, for the purpose of proving her possession of a parcel of land, which case is pending before us on appeal in cassation for error of law, now appeal, taken by the petitioner, from the order of the said District Court which literally reads- as follows :
    “Arecibo, November 29, 1902. On.October 17, 1902, José Adorno, representing Maria Juana Caraballo, filed a petition in the District Court of Arecibo, requesting that testimony he heard for the purpose of proving the possession of a parcel of land consisting of four cuerdas and a fraction, situated in barrio “Hato-Abajo”, within the municipal distriat of Arecibo, which, according to the petitioner belonged to Mrs. Caraballo, by virtue of a private award made in her favor upon the death of her husband, Rai-mundo Rios,’which occurred in said municipal district about two and a half years ago, he leaving five minor children under the guardianship of the widow, who were likewise privately awarded another tract of land with the same number of cuerdas, situated in the same barrio.
    
    In the petition interrogatories were proposed to be propounded to the witnesses to be heard, and the same was accompanied by a certificate from the Insular Treasury, dated September 16 last, showing that Maria Juana Caraballo had declared for the purposes of taxation, that she possessed in barrio “Hato-Abajo”, municipal district of Arecibo, ten cuerdas of land, together with other small properties, upon the whole of which she had to pay a yearly tax of ninety cents.
    According to aforesaid petition, filed at the request of Maria Juana Cara-ballo, the tract of ten cuerdas, her possession of one half of which she desired to prove by these proceedings, was recorded in the Registry of Property of Arecibo, in the name of petitioner’s deceased husband, Rai-mundo Rios.
    This court, by an order dated October 17, 1902, refused to grant the application of Maria Juana Caraballo because the property involved was recorded in the name of another person, and after notice of this was served upon petitioner, she prayed for a reconsideration, inasmuch as article 393 of the Mortgage Law, Paragraph 1, prescribes what the Registrar shall do when, upon recording any estate or interest, he should find that the property involved is already recorded in the name of another person in such a manner as to conflict with the possession sought to be admitted to record, which defect, according to a decision of the Administration of Registries, is corrected by referring the matter to and obtaining the consent of, the person in whose name the record is made; and inasmuch as the minor children of the petitioner are the parties interested in the record, there was no need of such a formality, said children being under the patria potestas of the petitioner.
    “The procedure authorized by law for recording her possession of the community property in favor of the surviving spouse when the entire estate of the spouses appears on the record in the name of the husband, is not the institution of proceedings to secure a judicial declaration of possession, for which reason the claim urged by José Adorno, on behalf of Maria Caraba-llo, Rios’ widow, is not well founded.
    This is rendered more evident when it is considered, that the late Raimun. do Rios y Rios left five minor children who at present possess in common with their mother, the property left by deceased, one half of which the widow seeks to have recor'ded in her favor through the institution of proceedings for a declaration of possession.
    Neither article 393 of the Mortgage Law, nor the decision of the Administration of Registries, of June 5, 1903; is applicable to the present case, because the record of the property in the name of the person from whom it is derived, is not opposed to, nor does it conflict with the possession of said property by his successors, but on the contrary, it constitutes the necessary precedent to possession, which shows that when property is possessed in common or through donatio mortis causa-by several persons conjointly, a testate or intestate partition is necessary to alter the original record.
    For the foregoing reasons the order of the court made on October 17, 1902, should be affirmed. In view of the legal provisions applicable to the case, and article 370 of the Law of Civil Procedure, the motion for a reconsideration of the order of the court is dismissed and the same is ordered to stand. Thus it was decided and signed by the judges of the court, to which I certify — Felipe Cuchí — Otto Schoenrich — Enrique González Darder— Manuel C. Calderón”.
    From this Order counsel for Maria Juana Caraballo, took an appeal in cassation for error of law, which was allowed. • The record was accordingly forwarded to this Supreme Court, and the party being summoned, upon her appearance the case was proceeded with according to the provisions of an act of the Legislative Assembly, entitled “An Act establishing the Supreme Court of Porto Rico as a Court of Appeals”, approved March 12, 1903. A day was set for the-hearing at which counsel for appellant did riot appear.
    
      Mr. Santoni, for appellant.
   Mr. Justice MacLeary,

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

The findings of fact of the judgment appealed from are-accepted.

In view of the provisions of articles 391, 392 and 393 of-the Mortgage Law in force in this Island, and 438 of the Regulations for the execution thereof, when proceedings are begun to secure a declaration of possession in accordance with the formalities mentioned in the first of the articles above referred to, the court should allow the same to be prosecuted without prejudging questions which- in all cases should he raised by the parties concerned who desire to oppose the same in a declaratory suit before the proper court, as prescribed in the aforesaid article of the Regulations, or which should be reserved to the Registrar of Property to be raised by him with the necessary facts taken from the records in the Registry.

In view of the legal provisions above cited and the decision of the General Directorate of Registries of Property, of the Colonial Department, dated April 30, 1895, we adjudge that we should reverse, and do reverse, the order of November 29, 1902, appealed from, and it is hereby ordered that the prosecution of the proposed proceedings be allowed by the District Court of Arecibo which shall hear and decide the case in the manner prescribed by law.

Chief Justice Quiñones and Justice Hernández and Sulz-bacher, concurred.

Mr. Justice Figueras did not sit at the hearing of this case. 1  