
    Fernandez v. Marquez & Co. Et Al.
    Appeal in cassation from the District Court of Mayagiiez.
    No. 27.
    Decided February 26, 1903.
    Cautionary Notice op Attachment. — -The cautionary notice of attachment authorized by a judicial order, and intended only to guarantee the result of a trial, does neither create nor declare any right, nor alter the nature of-obligations, nor can it convert into a real or foreclosure action one which lacks this condition, and it has no effect other than to accord the preference to the creditor who has secured the attachment — only in so far as the property entered is concerned — over other creditors whose claim against the same debtor was contracted subsequently to the entry of such cautionary notice.
    Id. — A cautionary notice of attachment entered in the registry of property at the instance of a creditor does not impair the right of ownership in the property acquired by a third person prior to the entry of said cautionary notice, although said, right of ownership had not been recorded prior to the entry of such cautionary notice.
    STATEMENT OF THE CASE.
    By deed of sale executed December 31, 1896, Juan Antonio Rodriguez Velez and his wife Monserrate Pérez y Tava-rez, conveyed to Emilio Gomez y Martinez three parcels of land, measuring respectively, six, ten and six cuerdas, and forming together a farm of about twenty-two cuerdas, situated in barrio “Anones”,' municipality of Las Marias, same being recorded in the Registry of Property on April 4, 1899. By deed of December 6, 1900, said farm was sold by Gomez to José Antonio Fernández y Pérez, who had it recorded in the Registry of Property on August 13, 1901. On March 9, 1897, Juan Antonio Rodriguez Velez signed a promissory note in favor of the mercantile firm of Marquez ■& Co., for the sum of six hundred and sixty-eight pesos and thirty-one centavos, payable December 30, 1897. Said note not having been satisfied on maturity executory proceedings were instituted against Rodriguez by Marquez & Co. who, on March 6, 1899, levied an attachment on two parcels of land, composed of ten and six cuerdas respectively, which formed part of the farm sold by Rodriguez to Gomez and by the latter to José Antonio Fernández y Pérez. Marquez & Company’s attachment was entered in the Registry of Property on March 24, 1899, when the farm still stood on the record as belonging to their debtor Juan Antonio Rodriguez. On September 20, 1901, José Antonio Fernández filed a complaint in intervention based upon ownership of the property attached in the said foreclosure proceedings, together with first copies, duly recorded, of the two deeds hereinbefore mentioned, and after reciting the facts above stated, and citing as legal authority articles 609, 1462, 1216 and 1218 of the Civil Code, article 44 of the Mortgage Law, and articles 1533, 1534 and 1535 of the Law of Civil Procedure, prayed that the complaint in intervention be sustained, that the land attached be declared his property and that the attachment he accordingly dissolved, with costs against defendants. Marquez & Co. answered the said complaint in intervention, alleging that the notice of their attachment in the Registry was entered prior to the records of Gomez and Fernández, who had recorded the property with the encumbrance of the cautionary notice of attachment, and cited as legal authority article 71 of the Mortgage Law, according to which real property or property rights that are recorded may be conveyed or encumbered, but without prejudice to the right of the person in whose favor the entry of the cautionary notice was made, and that the latter can be canceled only for the reasons mentioned in article 140 of the Regulations for the Execution of the Mortgage Law. He therefore prayed that the attachment levied on the property purchased by José Antonio Fernández be main-tainéd, said property being subject to the liabilities mentioned in the cautionary notice thereof.. On November 6, 1900, Juan Rodriguez y Velez, the defendant in the exec-utory proceedings was declared in default. The stage of the proceedings for the introduction of evidence having been reached, and such as had been proposed having been heard, it appears therefrom that the date of the attachment and the annotation thereof prior to the entries in the Registry of Property, in favor of Gomez and Fernández, were acknowledged by the parties, and all the. other proceedings in the case having been concluded on the 28th of February, 1902, the District Court of Mayagliez rendered judgment sustaining the complaint in intervention and declaring José Antonio Fernández to be the owner of the farms in question, the attachment levied on said propertjr by Marquez & Co. being dissolved with costs. From this decision Marquez & Co. took an appeal in cassation for violation of law, based on paragraphs 1 and 7 of article 1690 of the Law of Civil Procedure, alleging:
    I. — Error of fact which appears from the public documents on the reverse side of pages 9, 23 and 29, and pages 53 and 59 of the record, because the trial court should have admitted as proven that Marquez & Company’s attachment had been entered prior to the purchase of the farms by the plaintiff in intervention, Fernandez, and that therefore when the latter acquired said property it was with the full knowledge of its being encumbered by the cautionary notice of attachment, which error.of fact carries with it the error of law, and the violation of articles 1216 and 1218 of the Civil Code.
    II. — Violation of the doctrine announced by this Supreme Court in its ' decision of December 30, 1899, and of the doctrine contained in the decisions of the Supreme Court of Madrid, rendered November 14, 1891, January 11, 1895, February 7 and June 4, 1896, since a thing which has been accepted without protest, or aquiesced in either expressly or by implication, cannot be assailed, and it should be borne in mind that Fernández acquired possession when the cautionary notice had already been entered, and therefore with full knowledge thereof, and thus tacitly assented thereto.
    III. — Violation of the doctrine in conformity with the one above set forth and announced in the opinion of this court delivered May 10, 1900, wherein it is held that one of the qualities required of the law is that it should be just, and such would not be the case were it to permit by strictly complying with provisions thereof which are contrary to the most rudimentary elements of honesty, that acts which an honest conscience reproves as inmoral should be regarded as legitimate acts, and inasmuch as m order to be regarded as a third person it is necessary that there should be ignorance on the part of such person as to acts in which he had no participation, said quality cannot be ascribed to a person who is shown to have had a full knowledge of the act and contract of which he pretends to be ignorant on filing his complaint in intervention.
    IV. — Violation of article 44 of the Mortgage Law, because the third person acquired his supposed right on a date subsequent to the debt by virtue of which the cautionary notice of Marquez & Co. was decreed, and-even after said notice was entered.
    
      Messrs. Diaz and Texidor, for appellants.
    
      Mr. Alvarez Nava, for plaintiff and respondent.
    The other respondent made no appearance.
   Mr. Justice Figueras,

after making the above statement of the facts delivered the following opinion of the court:

The trial court did not commit the errors of fact and of law alleged in the first ground of the appeal, because in considering the legal value of the documents referred to, it recognizes the priority of the cautionary notice with respect to the record of the purchase, and the fact that the third person was aware of the encumbrance entered in the Registry of Property when he made the purchase. The doctrine referred to in the second and third grounds of the appeal as having been violated, is not applicable to the question at issue, for which reason no such violation as the one mentioned could have occurred in the judgment appealed from. As expressly provided by article 44 of the Mortgage Law and as repeatedly held by the Supreme Court of Spain in its judgment rendered on the 10th of May, 1886, and in other judgments, and by this court in its judgment of November 1,1902, a cautionary notice of an attachment authorized by a judicial order and intended only to guarantee the result of a suit, neither creates nor declares any right, nor does it alter the nature of obligations, nor can it convert into a real, action or foreclosure suit, an action which is not of such nature, and has no effect other than to accord a preference to the creditor who has secured the attachment, only in so far as the property entered is concerned, over other creditors whose claims against the same debtor were contracted subsequently to the entry of such cautionary notice; and therefore, the cautionary notice of an attachment entered at the request of a creditor, cannot impair the right of ownership in the property, (object of the complaint in intervention) that had been acquired by a third person years before, as it had been by Emilio Gomez by virtue of a contract of purchase and sale before the promissory note in favor of Marquez <fc Co. had been signed by the debtor Juan Antonio Rodriguez y Velez, and if this advantage benefits Gomez, it should also benefit the third person, Fernández, who in turn, and by the same title, acquired the farms in question. Far from violating article 44 of the Mortgage Law, as averred in the fourth allegation, the Mayagüez Court has correctly applied it.

We should declare, and do declare, that the appeal in cassation for violation of law, taken by the firm of Marquez <fc Go., does not lie, and impose upon them the costs. The proper certificate hereof is ordered to be forwarded, and the record returned to the District Court of Mayagüez,

Messrs. Chief Justice Quiñones, and Associate Justices Hernandez, Sulzbacher and MacLeary, concurring.  