
    Luce & Co., Ltd., Appellant, v. Registrar of Guayama, Respondent.
    Appeal from a decision of the Registrar of Property of Guayama Refusing to Record a Deed of Purchase and Sale.
    No. 594.
    Decided July 9, 1924.
    ItEOOKD of Title — Void Sale — Principal and Agent — Prohibition of Agent to Acquire Property of Principal. — Ratifying the doctrine laid down in' Gi-ménez v. Registrar, 21 P.B.R. 314, it was held that a sale of common property made as agent of the owners by a- person who is managing partner of the purchasing firm is null and void because contrary to the provisions of subdivision 2 of section 1362 of the Civil Code.
    The facts are stated in'the opinion.
    
      Mr. J. Tons Soto for the appellant.
    The respondent appeared by brief.
   Mb. Justice Audrey

delivered the opinion of the court.

This administrative appeal was taken by Luce & Co., an agricultural partnership organized in accordance with the Civil Code of Porto Rico, because the Registrar of Property of Guayama refused to record in the books of his- office a purchase made by the said partnership of various joint interests in the Carmen plantation of Salinas from Charles L. Carpenter as attorney in fact of the vendors, the ground of the registrar’s decision being that the purchase was void under subsection 2 of section 1362 of the Civil Code and the judgment of this court in the case of Giménez v. The Registrar, 21 P.R.R. 314, for the reason that the attorney in fact of the vendors was the managing partner of the vendee partnership.

Subsection 2 of section 1362 of the Civil Code provides that agents can not acquire by purchase, even at public or judicial auction, either in person or by an agent, property whose administration or sale may have been entrusted to them; and in the case of Giménez v. The Registrar, supra, this court held that a purchase by the wife with money belonging to the conjugal partnership of property belonging to a mercantile firm of which, her husband was managing partner was not recordable.

The appellant admits that the managing partner of a civil partnership is its agent; that Charles L. Carpenter was an agent of the vendors; that in the case cited the husband sold property of the firm of which he was manager to his wife for the conjugal partnership, and that practically the manager was selling to himself and therefore the sale was void; but alleges that the present case is different for the reason that if in the Giménez Case the husband as representative of the conjugal partnership had sold its property to the firm of which he was manager the sale .would have been valid because the vendor husband was a personality distinct from the mercantile firm of which he was a member, and that various cited cases, which we shall examine later, would have been applicable.

We do not see the distinction made by the appellant in the Giménez Case in order to apply it to the present case, for if the purchase made by the wife was void because her husband was manager and therefore agent of the vendor firm, for which reason the husband practically was buying what he was selling as manager, likewise if he, as manager of the mercantile firm, had bought property that he sold as representative of the conjugal partnership, he would have been selling to himself property that he represented and the sale would have been void.

In the present case Charles 'L. Carpenter practically bought for himself, for he was the managing partner of Luce & Co., the property that he sold as attorney in fact of the owners; hence that sale is void in accordance with subsection 2 of section 1362 of the Civil Code.

The cases cited hi support of the appeal are not in point with the present case, for in the case of Turner v. Registrar of San Juan, 22 P.R.R. 535, after ratifying the Giménez Case, supra, it was held that that case was not applicable to: the Turner Case because the president of a corporation is not its agent. In the case of Rosenstadt & Waller, Inc., v. Registrar of Caguas, 23 P.R.R. 269, there was no question of a sale by the attorney in fact, but whether Jacob Bosenstadt as manager of the corporation could purchase for it property sold by him and his wife. In the case of Successors of Sobrino, Fernández & Co. v. Registrar of San Juan, 27 P.R.R. 425, Félix Pérez sold as attorney in fact property of the firm of Sobrino & Fernández to another firm called Successors of Sobrino, Fernández & Co. He did not buy for himself the property that he sold, nor was he the managing partner of the vendee firm.

The fact that Carpenter, as attorney in fact of the owners of the joint interests, gave an option of purchase to a person who later assigned it to the firm of which the attorney in fact who gave the option was a member and that for this reason the sale relieved the vendors of the obligation of sale contracted,, is no ground for finding that the sale was not void.

In view of the conclusion reached it is not necessary to consider a curable defect assigned by the registrar, who, on the other hand, acquiesces in its revocation.

The decision appealed from should be

Affirmed.

Chief Justice Del Toro and Justices Hutchison and Franco Soto concurred.

Mr. Justice Wolf took no part in the decision of this case.

ON RECONSIDERATION.

On February 20, 1925, the court, without handing down an opinion, overruled a motion for reconsideration, Mr, Justice Wolf dissenting.

DISSENTING OPINION OP

MR. JUSTICE WOLE.

On reconsideration. It is well to sum up the facts. Charles L. Carpenter was a managing partner in the firm of Luce & Co. He vras also attorney in fact for -the vendor. Luce & Co. by an- intermediate person appeared to be acquiring tbe property whose record is deniéd.

The registrar and the original opinion of this court rely on the case of Giménez v. Registrar of San Juan, 21 P.R.R. 329. There Camblor, a husband who was the managing partner of a firm, sold property to the wife of said Cam-blor. The ratio decidendi of that case was that the said husband was not to be distinguished from the conjugal partnership of which he and his wife were component parts; that when the property was acquired by the wife it was an acquisition by the husband. It is .evident that the sale could not be distinguished from one where Camblor, managing partner, sold to Camblor, married man. The legal effect is exactly the same. The property in either case is presumed to be ganancial.

In the instant case, Carpenter is not the firm of which he is a managing partner. The firm of Luce & Co. is an entity distinct from said Carpenter. The latter is not acquiring for himself, but for the firm. The literal provisions of section 1362 of the Civil Code do not apply to such a purchase. The managing partner is an agent of the firm in a sense in which a "husband is not the agent of a conjugal society. During the lifetime of the spouses the husband is to all intents and purposes the whole entity. If a husband was to be regarded merely as an agent, then the provisions of section 1362 would be a dead letter in every case where a purchase was made by a married man, because the ga-nancial character would immediately attach.

Manresa, Yol. 10, page 100, commenting on section 1362 (1459), shows that agents, like managing partners, cannot acquire the property of their principals, but he makes it clear that the agent is one thing and the principal is another. Section 1362 does not forbid the principal from acquiring from his agent, but vice versa.

Sobrino Fernández & Co. v. Registrar of San Juan, 27 P.R.R. 425, was a case where the active agent was a member both of tbe selling firm and tfie purchasing firm, and. we field tfiat tfie acquiring firm was an entity distinct from its manager, citing Rosenstadt & Waller, Inc., v. Registrar of Caguas, 23 P.R.R. 269. Tfie distinction between tfie personality of tfie managing partner and tfie firm was clearly and distinctly made. Hence fiere it may be also said Carpenter is not Luce & Co. just as Benigno Fernández was not Sobrino y Fernández & Co. In the Rosenstadt & Waller Case, supra, it was tfie president of tfie corporation wfio was tfie active agent. Turner v. Registrar of San Juan, 22 P.R.R. 535, also supports tfie idea of distinct entities as between tfie president of a corporation and tfie corporation.

Appellant also draws attention to tfie fact tfiat section 1362 is to be given a restrictive ratfier than a liberal interpretation.

Tfie note should be reversed.  