
    Despres v. The Registrar of Property.
    Appeal from a decisión of the Registrar of Property of San Germán.
    No. 8.
    Decided June 24, 1908.
    Ganancial Property — Presumption—Testimony of One of the Spouses in Proceedings to Obtain Possessory Title — Alienation Without Consent of the Other Spouse. — Where a property is recorded by virtue of proceedings to obtain a possessory title, brought by one of- the spouses alone, in favor of the petitioner, the petitioner being married, and such proceedings having been had without the intervention of both spouses, it is presumed that the property belongs to the conjugal partnership, and that presumption cannot be destroyed by an ex parte statement made by the petitioner, without the intervention of the other spouse, to the effect that the property was acquired by inheritance, because such a statement is not conclusive evidence of a title of acquisition, and the property cannot, therefore, be alienated without the express consent of the other spouse.
    The facts are stated in the opinion.
    
      Mr. Francisco G. Descartes for appellant.
   Mr. Chief Justice Quiñones

delivered the opinion of the conrt.

This is an appeal taken by Attorney Francisco G. Descartes on hehalf of Adrian Despres y Bnldon from a decision of the Registrar of Property of San Germán refusing the admission to record of a deed of sale of two-fifths of .a rural estate.

By public deed executed in Cabo Rojo before Francisco G. Descartes, an attorney and notary of Ponce, on January 9, 1905, Guillermina and Norberto Boscio y Cofresi,. sold to Adrian Despres y Bnldon the two-fifths undivided interests which they held in a rural estate of 70 cuerdas of land, situated in barrio “Miradero” of the municipal district of Cabo Rojo, which the vendors had acquired by inheritance from their father, Juan Benedicto Boscio y Ramisez, as shown by the proceedings to establish possession instituted by the vendors and approved by the municipal judge of Cabo Rojo, not recorded as yet on the date of the deed in the registry of property; and upon presentation of said deed in the Registry of Property of San G-ermán for record, the registrar refused such record on the grounds set forth in the decision which he wrote at the foot of such deed, reading as follows:

“The record of the foregoing document is not admitted, which document has been classified in view of another document of the same date in which the three remaining coowners of the estate declare that each of them holds an undivided fifth interest in the estate, because the vendors have recorded their respective shares as married, by virtue of the judicial proceedings had to establish the fact of the possession, and now they sell them without the consent of their respective spouses; and in lien of such record a cautionary notice is entered to have effect for the term of 120 days, at folio 237, reverse side, volume 18, municipality of Oabó Rojo, estate number 941, record detter A. San Germán, April 22, 1908. — Dr. Joaquin Servera Silva, Registrar.”

Attorney Francisco G. Descartes took an appeal in due time from this decision on behalf of Adrian Despres y Buldon, seeking the reversal thereof and the issuance of an order to the registrar to record the deed, the Registrar of Property of San Germán having also filed a statement in writing setting forth what he deemed proper in support of the decision appealed from.

In accordance with section 1322 of the Civil Code in force, “all thé property of the marriage shall be considered as partnership property until it is proven that it belongs exclusively to the husband or to the wife; ’ ’ and as the declarations made by one of the spouses who did not take part in the proceedings to establish possession cannot be considered as conclusive proof of the title of acquisition of real property, until the effectiveness of such title be established in an authentic manner, the provisions of said section of the Code must be adhered to and the property recorded by virtue of such proceedings must be considered as belonging to the conjugal partnership.

According to section 159 of said Code, “the real property belonging to the conjugal community may not be alienated or burdened, such, a transaction being null except when effected with the mutual consent of both parties to. the marriage,” which requisite has not been complied with in the deed of sale which is the subject matter of this appeal, which sets forth that both vendors are married.

The decision of the Registrar of Property of San Germán placed at the end of the said deed, denying the admission thereof to record is affirmed, and said deed is ordered to be returned to the registrar with a certified copy of this decision for the information of the persons concerned and for other proper purposes.

Affirmed.

Justices Hernandez, Figueras, MacLeary and Wolf concurred.  