
    SAN JUAN FRUIT COMPANY, Plff., v. LANDRAU ET AL., Dfts.
    San Juan,
    Law,
    No. 1049.
    Prescription foe Land Warranty.
    Action for Breach of Warranty — Prescription.
    A purchased from B a tract of 290 cuerdas of land, hut was not delivered the possession of 52 cuerdas thereof, nor able to obtain such possession after establishing several actions against third persons claiming the ownership thereof. A now sues B for damages sustained because of loss of use of the 52 cuerdas and in maintain-' ing the suits to recover same. B demurs on the ground that the action was prescribed pursuant to §§ 1266, 1268, 1375 and 1393 of the Civil Code. Held that none of these sections apply to the present cause of .action.
    Opinion filed February 21, 1916.
    Statement of Facts.
    Tbis case comes up on a demurrer to the'complaint. The complaint alleges that the plaintiff is a corporation of New York, and that defendants are the heirs of one Landrau and are citizens of Porto Pico. That plaintiff is the successor of a copartnership formerly existing in New York, and that the present corporation took over from the said copartnership all the property, actions at law, assets, and liabilities which it owned and for which it was liable. That in June, 1902, the copartnership, had purchased of the since deceased Landrau a certain tract of land of two hundred and ninety (290) cuerdas, and that by deed and by law the said Landrau warranted the title and obligated himself and heirs to deliver possession. That the lands were delivered in theory upon the signing of the bill of purchase, but when plaintiff went to take possession it found that 40 cuerdas (amended to 52 cuerdas) were occupied by certain third persons; thereupon the purchaser made demand upon Landrau for delivery, but this has not been effected up to the present. That the copartnership and the plaintiff have been deprived of the use of said portion of land, put to the expense of defending and bringing lawsuits in wbicb tbe title and possession thereof were in litigation, all to plaintiff’s damage of $9,500, etc.
    Tbe demurrer alleges first that tbe assignors of plaintiff are not shown to have been of tbe necessary citizenship to confer jurisdiction on this court. This demurrer has been confessed and need not be considered.
    Next tbe demurrer alleges that prescription has run, under several different sections of tbe Code, and this will be considered at length.
    
      Mr. E. B. Wilcox for plaintiff.
    
      Messrs. Savage & Francis and Mr. Luis Mendez Vaz for defendants.
   HamiltoN, Judge,

delivered tbe following opinion:

Tbe demurrer sets up ambiguity and uncertainty, inasmuch as it cannot be determined whether tbe plaintiff is suing as owner or as assignee of tbe copartnership or as some one else. It does not appear that this ground is well taken. Under tbe allegations of tbe complaint tbe plaintiff is suing for its own rights derived by an assignment from tbe copartnership. This ground will be overruled.

Tbe last ground of demurrer is in effect tbe same with tbe variation that it is said to be impossible to determine whether tbe damage suffered was suffered by tbe plaintiff or its assignor. Tbe complaint does not seem to be subject to this ground of demurrer, wbicb is accordingly overruled.

These two grounds hardly need discussion. It appears that the complaint is on its face not subject to the objections urged. The matter of prescription, however, may or may not stand on a different footing.

1. The demurrer sets up that the remedy of the plaintiff, if any it has, has prescribed under §§ 1374 and 1375, under § 1268, under § 1266, and under § 1393 of the Civil Code. On the other hand, the plaintiff urges that the prescription applicable is under § 1864 of the Civil Code, which says that “real actions with regard to real property prescribe after thirty years,” and § 1865 says “actions which are personal and for which no special term of prescription is fixed, after fifteen years.” The periods set up in the demurrer vary from six months to four years. The demurrer therefore brings up the whole question of prescription.

The last title of the Civil Code, except a few final provisions, relates to the general subject of prescription. It is said in § 1831 that “ownership and other property rights are acquired by prescription in the manner and under the conditions specified by law. Eights and actions, of any kind whatsoever, also are extinguished by prescription in the same manner.” Under § 1837 “all things which are the object of commerce are capable of prescription.” It is recognized, however, in § 1839 that “the provisions of this title shall be understood without prejudice to what may be established in this Code or in special laws with regard to specified cases of prescription,” — such as the provisions set up in the title on Contracts, some of which are raised by the demurrer.

2. Prescription at civil law takes the place of the statute of limitations at common law, but is regarded as part of the Civil Code instead of being regarded, as at common law, as part of a Code of Procedure. Tbe subject is covered by title 18 of the Porto Pico Civil Code. This consists of a first chapter on general provisions, and then of chapter 2 on the Prescription of Ownership and Other Property Rights, and lastly chapter 3 on Prescription of Actions. This title is, with the exception of the few final provisions affecting the whole Code, the last of the Civil Code. The Spanish civilians draw a careful distinction between chapter 2 and chapter 3 as covering, respectively, the subject' of acquisitive prescription and of ex-tinctive prescription. 12 Manresa, 732. As Manresa suggests, however, the division is not happy, inasmuch as the extinction of anyone’s right to property implies the acquisition of that right by some one else, the two being correlative. Hence arise some of the difficulties in determining which kind of prescription is applicable to a particular case.

The difference between the common-law limitation and the civil-law prescription has been partly pointed out in the Porto Rico R. Light & P. Co. v. Atlas Transfer Co. 6 Porto Rica Fed. Rep. 371. The subject of prescription originated with the old civil-law doctrine of usucwpio, by which a possessor of property for a year became in many instances the owner. The theory was even pushed to the limit of applying it to a wife, and even originated one form of marriage. Prescription received its full development only from the time of Justinian, if indeed he did not supply the name itself. Sandars, Justinian, 11. The distinction between the acquisitive and the extinctive forms originates with him. Ib. p. 167. During the long and thorough occupation of Spain by the Romans the civil law was in full force, and with it passed into the jurisprudence of that province tbe principles of prescription, and these have been continued, particularly by the Partidas, in the many Spanish Codes since that time. The chief difference has been a variation, and that not always large, of the time prescribed for different classes of cases.

The common-law idea of limitations of actions, on the other hand, is merely that there can, after certain prescribed times, be no suit filed to enforce a right. The result is that the possessor, after that time, enjoys what amounts to an absolute' title, but this is for the public interest, although it is the practical result of the passage of title. Thus in personal property it destroys the right as well as bars the remedy. Lay v. Lawson, 23 Ala. 377. Under the civil law, however, the right itself is barred after the periods described in chapter 2 of the title on Prescriptions, provided the possession is accompanied in the most important instances by just title and good faith. These periods are, then, what is called the ordinary prescription, but there is also a termination of property right without such accompaniments. This is contained in § 1860 of the Porto Pico Civil Code, and is commonly called the extraordinary prescription. It amounts practically to a statute of repose, and is theoretically based upon the idea or “concept” that the late owner has abandoned possession. 12 Manresa, 859. This corresponds approximately to the whole common-law theory of limitations. The basis of the two systems is therefore very different, except the rule (Civil Code, § 1870) that the time for the prescription of all kinds of actions, when there is no special provision to the contrary, shall be counted from the day on which they could have been instituted. Both systems agree in § 1849 that any express or implied acknowledgment which the possessor may make with regard to the right of the owner also interrupts possession, as well as the interruption of possession which in § 1845 is called natural interruption, by which possession ceases for more than one year. Other provisions of chapter 2 on acquisitive possession, however, are peculiar to the civil law. Thus:

“Section 1846. Civil interruption is caused by a judicial citation of the possessor, even should it be by order of a court or of a judge without jurisdiction.

“Section 1847. The judicial citation shall be considered as not made and shall not cause interruption:

“1. If it should be void by reason of the absence of legal formalities.

“2. If the plaintiff should withdraw his complaint or should permit the proceedings to lapse.

“3. If the suit against the possessor should be dismissed.

“Section 1848. Civil interruption shall also take place by an action to avoid litigation, provided that within two months from its celebration a complaint as to possession or ownership of the thing contested be presented to the court or judge.” Porto Eico Civil Code.

3. Taking up in succession the sections alleged to be applicable, the first in order would be §§ 1266 and 1268 of the Civil Code of Porto Eico, being among the special limitations recognized above in the law of prescription. These sections come in title 2 on contracts, and more particularly, respectively, in chapters 5 and 6 relative to the rescission and to the nullity of contracts. To an action based on either of these, the time limited is four years. A rescission of a contract validly executed occurs when the purchaser suffers damages in certain cases, and rescission involved tbe return of tbe things wbicb were tbe objects of tbe contract, fruits or interest. Nothing of this kind is sought by tbe suit at bar. It is not part of tbe prayer that tbe contract be rescinded; on tbe contrary, tbe plaintiff sues upon tbe contract as such and seeks damages under a warranty wbicb be alleges is contained therein.

4. Much tbe same is true as to tbe claim of nullity. Under § 1261 of tbe Porto Rico Civil Code, valid contracts may be annulled even where there is no damage to the contracting parties, whenever they contain defects wbicb invalidate them at law. This also requires restoration of tbe things wbicb have been tbe objects of tbe contract with their fruits or interest. Even contracts subject to nullification can be confirmed under tbe civil law. Civil Code of P. P. §§ 1276 — 1280. It is clear that tbe complaint in this case does not seek to nullify tbe contract in any way.

5. With § 1375 of tbe Porto Pico Civil Code we would seem to get nearer tbe nature of this suit, as this prescription of six months relates to defects connected with tbe delivery of property. This is under title 4 relating to a contract of purchase and sale, and more particularly to tbe chapter (4) relating to tbe obligations of tbe vendor. Under § 1364 tbe vendor is bound to deliver and warrant tbe thing wbicb is tbe object of sale.

“A thing sold shall be considered as delivered, when it is placed in tbe bands and possession of tbe vendee.

“When tbe sale should be made by means of a public instrument, tbe execution thereof shall be equivalent to tbe delivery of tbe thing wbicb is tbe object of tbe contract, if in said instrument tbe contrary does not appear or may be clearly inferred.” P. R.. Civil Code, § 1365.

In other eases tbe placing of tbe titles of ownership in tbe possession of tbe vendee, or bis using bis right with tbe consent of tbe vendor, is considered as a delivery. Under § 1372 tbe obligation to deliver tbe thing sold is qualified by tbe right to choose between reduction in price or rescission of tbe contract, where tbe real estate is at least 10 per cent less than called for by tbe contract, where tbe sale is so much per cuerda or other unit of measure. Whatever may be tbe plaintiff-vendee’s rights in this regard, it is sufficient to say that be does not seek a reduction or rescission, and therefore tbe short prescription of six months applicable to such a case does not apply in tbe case at bar. Tbe complaint shows that tbe finca was composed of 290 cuerdas, more or less, but there is nothing to show that tbe property was sold at a particular price per cuerda. Under § 1374 of Porto Pico Civil Code, in a sale for a fixed price tbe increase or decréase of tbe acreage must not be considered.

6. Tbe next section set up by tbe demurrer as governing tbe case is No. 1393, prescribing also a period of six months for actions arising under §§ 1388 — 1392, governing tbe liability of tbe vendor for faults or bidden defects even when they are unknown. Tbe vendee is, under § 1389, given tbe right to withdraw from tbe contract or demand a proportional reduction of price, according to tbe judgment of experts. All of these provisions for six months are based upon tbe idea that they relate to defects which may impair tbe contract in one way. or another, and even when damages are allowed, tbe alternative right of tbe vendee to annul or rescind tbe contract is expressed. It does not seem that tbe complaint is based upon any such theory. The complaint throughout alleges the contract as valid and subsisting, and seeks to have it carried out in full. The six months’ limitations, on the other hand, relate to withdrawing from a sale which, in natural justice, should be done at a very early date, as early in fact as the defect in question is discovered. A different rule should apply where the contract is to remain in force, and damages are sought for something provided for in the contract itself. It does not seem that § 1392 applies to the case at bar.

1. The prescription set out in the demurrer not being applicable, it would follow that the demurrer should be overruled. On this state of the pleadings it is not necessary to decide what prescription does apply. The defendant, however, goes further and sets up that § 1864 or § 1865 is the provision applicable. They read as follows:

“Sec. 1864. Real actions with regard to real property prescribe after thirty years.

“This provision is understood without prejudice to the prescriptions relating to the acquisition of ownership or of property rights by prescription.

“Sec. 1865. A mortgage action prescribes after twenty years, and those which are personal and for which no special term of prescription is fixed, after fifteen years.”

These are found in the title Prescription of the Porto Rico Civil Code above discussed and in the chapter relating not to the prescription of ownership or acquisitive prescription, but in that relating to the prescription of actions or extinctive prescription. Whether the case at bar is a real action or a personal one need not be decided, because, whether it is § 1864 or 1865 of the Civil Code that is applicable, the suit is brought ■within the proper period. A real action, reivindicación, is one brought for the property itself, whether that property be land or movables, while, on the other hand, a personal action is one brought against a person, although it may be on a claim growing out of land. If the suit at bar is to be considered one for damages for breach of general warranty, it would be of the latter character. But for reasons given above it would seem unnecessary to decide the point at this time.

It follows that the demurrer-is overruled.

It is so ordered'.  