
    Joy v. Banco Territorial y Agrícola.
    Appeal in cassation from the District Court of Arecibo.
    No. 20.
    Decided January 15, 1903.
    Contracts. — An obligation contracted -and recognized by both parties thereto cannot be invalidated on a plea of consent given by error, unless it be shown that the error sprang from circumstances contained in the deed and not from facts foreign to the contract.
    Id. — Fraud.-—-It is necessary, in order to maintain an action for nullity of a contract on the ground of fraud, that the existence of the fraud he established.
    Id. — General Order of January 19, and 30, 1899, and February 12, and April 28, 1900, cannot modify or annul what the parties, having capacity to contract, have freely, legally and voluntarily agreed upon, and said provisions are in the nature of a procedure whereby the collection of instruments is suspended for a certain time and under specified circumstances.
    Evidence. — Consideration.—The fact that the court considered the unsworn statement made by an attorney-at-law is not ground for reversal where the court holds on other sufficient grounds that the action will lie.
    Costs. — Courts will impose all costs upon that litigant whose substantial petitions have failed.
    STATEMENT OF THE CASE.
    Lorenzo Joy, through his attorney-at-law, Enrique Gonzalez Darder, under date of August 16, 1901, brought an action in the Court of Arecibo demanding that it be judicially declared that since the year 1896, he had thirty-seven thousand provincial pesos on deposit with the Territorial Bank, to be applied by said Bank to the immediate payment of thirty thousand pesos, Mexican coin, with interest and costs, so as to effect the cancellation of the first mortgage credit in favor of Pedro A. Mayol; that aforesaid Bank is bound to cancel, at its cost, the aforesaid debt comprising the matured installments thereof up to the ninth; that the instrument of liquidation of accounts and cancellation of mortgages, of February 6, 1901, executed in San Juan; by the Bank and Lorenzo Joy, be declared void, as also the judicial proceedings had, the latter to be indemnified by the former for damages and costs, said demand being based upon the following facts : 1. — That on January 18, 1896, Lorenzo Joy entered into a contract for a mortgage loan with the Bank, for the sum of forty-thousand provincial pesos, whereof thirty-thousand in Mexican coin, with interest, costs and charges, were to be paid to Pedro A. Mayol, first mortgage creditor, for which purpose he had left on deposit with said Bank thirty-seven thousand provincial pesos, as follows: twenty-two thousand in cash, and fourteen-thousand and eight hundred in mortgage bonds, according to clause 11; 2. — That the Bank has not paid Mayol, first mortgage creditor of the estate “Honradez”, except twelve-thousand pesos in Mexican coin, together with the matured interest on the principal secured b}r first mortgage, up to May 15, 1896, the Bank holding back thirty-seven thousand pesos in gold on deposit, without canceling the mortgage; that owing to this default of the Bank, Mayol was prosecuting “foreclosure proceedings against the mortgaged estate and plaintiff, for the recovery of his entire credit; that on February 12, 1897, Joy required the Bank by a -notarial instrument to pay Mayol the amount due him, holding said Bank responsible for the damages it was causing both to himself and to Mayol; that on June 12, 1898, he indentured to the Bank the coffee crop of that year for payment of the fourth, fifth and sixth installments on the mortgage, corresponding to January and July, 1898, and January 1899, which coffee was harvested by the Bank and sold as per account current; that up to January 1899 all expenses incurred were paid to the Bank, and on the 19th of January of the same year an order was issued staying the summary proceedings to enforce payment of the credits maturing in January 1900; that the installment due said year was extended another year, divided into two semi-annual installments; that in 1900, two houses belonging to the mortgaged estate were burned down, and the Bank collected the insurance thereon pursuant to a contract executed in January 1896, by Avhich it 'was bound to apply seven thousand four-hundred and seventy pesos to the cancellation of certain installments, of which it only applied a portion according to the instrument the annulment whereof is demanded; that according to a publication made in the “Gazette” Pedro A. Mayol appears as mortgage-creditor for thirty-thousand pesos, so that said credit should not constitute an incumbrance on the estate “Honradez”, inasmuch as Joy has paid to the Bank for the cancellation thereof thirty-seven thousand pesos, provincial money; that the Bank seeks to recover by foreclosure proceedings under the mortgage executed in January 1896, without having complied with the articles of the aforesaid contract, nor with the provisions of the Mortgage Law, and the Regulations for the execution thereof, inasmuch as the debt had not become due since two of the installments thereof had not matured, nor had a new appraisement been made; that had hot Joy been assured by the Director of the Bank that if he signed the document of February 6, 1901, in the contradictory terms in which it was drawn, providing for the liquidation of accounts and cancellation of mortgages, the Bank would furnish him with the necessary funds to place the farm in a condition to be included in the negotiation with the Syndicate, he would not have signed it; that Joy had complied in good faith with all the articles of the contract with the Bank. With the complaint were filed a copy of the judgment of the Ponce Court under date of June 13,1901, ordering the public sale on foreclosure proceeding in an exe-cutory action prosecuted by Pedro A. Mayol against Lorenzo Joy; a certified copy of the instrument executed in this city on February 6, 1901, before Notary Santiago R. Palmer, whereby the Territorial Bank and Lorenzo Joy make the following declaration: That as a result of the liquidations made they bear witness to the fact that Lorenzo Joy is indebted to the Bank for the installments specified in the mortgage loan of January. 18, 1896, from and including the fifth installment; that Joy himself has a balance of one thousand and twenty-three dollars and thirty-four cents, American gold, in his favor in the Bank, intended in so. far as it may cover same for the payment of his mortgage obligation ; that the obligations for the agricultural loan made to Nicolás Joy and the mortgage bond constituted by Lorenzo Joy in the deed of March 20, 1896, are wholly cancelled; that the mortgage constituted in the instrument of January 18, 1896, is partially cancelled as to the third and fourth installments thereof, and that the deed of delivery and conveyance of crops, dated July 12, 1898, is null and void. Notice of the complaint having been served upon the Territorial Bank, it prayed that the application for a decree ot nullity of the instrument be dismissed, alleging in support thereof the following facts: Admit the existence of a contract for a loan of forty thousand pesos by the Bank to Lorenzo Joy, and that the Bank had reserved the necessary sum to cancel Pedro A. Mayol’s credit; that as part of said reserved sum, the interest on two installments of the principal was paid to Mayol, Joy’s indebtedness to the latter being reduced to eighteen thousand pesos, corresponding to the three installments with interest thereon, maturing respectively in 1898, 1899 and 1900, that the Bank deposit to meet said indebtedness was reduced to eighteen thousand Mexican pesos, equal to seventeen thousand one hundred provincial pesos, for which the Bank gave Joy a receipt; that while payment of aforesaid sum was being made, the Bank had been given to understand by Joy that he would continue to pay Mayol the stipulated interest at twelve per cent per annum, and under that supposition upon collecting from Joy the first three installments of the mortgage, it had credited him on the • first with the sum of five hundred and twenty-five pesos and eighty-two centavos, on the second, seven hundred and sixty-nine pesos and fifty centavos, and- on the third another seven hundred and sixty-nine pesos and fifty centavos, as interest at nine per cent per annum, agreed upon by Joy and the Bank, corresponding to the seventeen thousand one hundred provincial pesos, held for payment when its turn should arrive; that Joy did not pay Mayol as had been agreed, and the Bank had to do so in order to avoid greater losses; that the Bank was for a long time ignorant of the fact that Joy was not paying Mayol the aforesaid interest; in regard to foreclosure procedings Joy was to hlame for the institution thereof by Mayol against him, inasmuch as he had refused to intervene in the liquidation of interest, the Bank not considering that it was authorized to pay for the account of Joy more than he had on deposit; it is true that a written demand was made on February 12, 1897, and the said instrument itself is proof that the seventeen thous- and one hundred pesos were in the Bank to be delivered in due time, and, therefore', it was Joy who violated the agreement in failing to pay the interest to Mayol; that by an instrument executed on July 12, 1898, before Notary Antonio Alvarez Nava, it was agreed that in order that the Bank might collect the fourth, fifth and sixth installments of its mortgage and other sums due them by Joy, in connection therewith, the Bank would take over the coffee crop of the “Honradez” estate; that it is not true that the Bank had received full payment for all the outstanding installments up to January 1899, for in the deed of liquidation of accounts of February 6, 1901, it is shown that the harvest and sale of the crop taken over by the Bank under the contract of July 12, 1898, did not leave after deducting expenses, enough balance to cover the account for which it was intended ; that pursuant to agreement, the Bank collected the insurance amounting to seven thousand five hundred provincial pesos, but denies that the whole of this sum was applied to anything other than the obligations arising from , the mortgage credit; that the mortgage debt for which it has instituted foreclosure proceedings is wholly due, because in February, 1901, when the suit was brought, Joy owed not two hut six matured and unpaid installments, .beginning with the fifth on July 15, 1898. At the proceedings for the taking of evidence, documents were submitted consisting of the correspondence, the records of the foreclosure proceedings instituted by the Bank against Lorenzo Joy y Colón, and a certificate issued by the Clerk of the Ponce Court, showing that Pedro A. Mayol had brought an execu-tory action against Joy for the amount of the mortgage which had not been paid at the time the Bank had begun foreclosure proceedings against said Lorenzo Joy y Colón. A day was set for the hearing of the case, and ■ on January 22, 1902, the Court rendered judgment dismissing the complaint praying for the annulment of proceedings and declaring that Joy had on deposit with the Bank the sum of three thousand and seven hundred pesos for the purpose of cancelling Mayol’s mortgage, and taxing the costs against the defendant. Notice of said judgment having 'been served upon the attorney for the plaintiff, he took an appeal in cassation for error of law, under Paragraphs 1 and 7 (of Article 1690) of the Law of Civil Procedure as follows:
    I. — Violation of Section 4 of the Civil Code which reads: “Acts executed contrary to the provisions of law are void, except when the law preserves their validity. Rights granted by the laws may be renounced, provided such renunciation be not contrary to law, to public interest or public order, or prejudicial to the interest of a third person.” It is true that on the strength of this Article, Lorenzo Joy could renounce the right granted him by Article 1174 of the same Code, and permit the sums he had delivered to the Bank proceeding from the “Honradez” estate, to be applied to meeting other engagements than the payment of the installments falling due under the mortgage on said estate, but inasmuch as by renouncing said right he would prejudice the interests of third mortgage creditors, namely Maria Pastor and Nicolás Joy, such renunciation is void according to law and the contract in which it was made is not valid. Article 4, says clearly that “acts contrary to the provisions of law are void”, and if the, law declares that rights cannot be renounced where such renunciation operates to the prejudice of the interest of a third person, Lorenzo Joy could not have renounced his right by permitting the coffee crop of the estate “Honradez” and the amount of the fire insurance collected by the Bank, with the obligation to apply them to the cancellation of the mortgage pursuant to contract, to be applied to any purpose other than meeting the mortgage installments, inasmuch as said renunciation prejudiced the rights of the second mortgage creditors who are third persons. If then, the renunciation made by Joy is null and void, the deed dated February 6, 1901, wherein said renunciation was stipulated, is likewise null and void.
    II. — Violation of Article 1265 of the Civil Code which declares that consent given by error in a contract is void, if, as explained in Article 1266, the error refers to the substance of the thing which may be'the object of the contract. Lorenzo Joy believed that he could apply the coffee crop of the estate “Honradez” and the amount of fire insurance to whatever he might deem advisable, and gave his consent to the deed of liquidation of accounts, of February 6, 1901, thus prejudicing the rights acquired by other creditors; there has been, then, consent given by error, and this invalidates the aforesaid contract according to Article 1300 of said Civil Code.
    III. — Violation of Article 1265 of the Civil Code, inasmuch as it declares null and void the consent given where there is deceit, which according to Article 1269 exists when by words or insidious machinations on the part of one of the contracting parties, the other is induced to • execute a contract which, otherwise he would not have made. Article 1249 provides that presumptive evidence is only admissible when the fact from which such presumptions are to be deduced have been fully proven. It is a fact that has been proven and stands on record, that in the aforesaid instrument of liquidation of accounts of February 6, 1901, Joy permits the fourth installment of his mortgage to be credited to him, and that the balance of the money be applied to other purposes; it is also true that he had previously assigned the coffee crop for the purpose of paying the fourth, fifth and sixth installments of the mortgage according to the contract of July 12, 1898, attached to the record, and it has also been proven at the ■trial that on the 11th day of the same month and year, the Bank instituted foreclosure proceedings against Joy for the recovery of the other installments ; it is, therefore, to be presumed on behalf of the latter, that there must have been some agreement as to extension of time to induce him to sign the above mentioned liquidation, as otherwise he would not have admitted that only the fourth installment had been paid, when by the contract of delivery in payment, of 1898, he-had already made good the fourth, fifth and sixth installments, nor would he have consented to any application of the insurance money being made other than to meet the installments of the mortgage loan, namely, the seventh, eighth and ninth, thereby avoiding an execution. There is machination on the part of the manager of the Bank to induce Joy to sign the deed of liquidation of accounts; there is fraud, and, therefore, the contract resulting from consent obtained by deceit, lacks efficacy and legal validity.
    IV. — Erroneous construction of Article 1269 of the Civil Code, in holding that the fraud mentioned in said provision does not carry with it the nullity of contracts, but only an indemnity for damages. The Article refers to the fraud responsible for the contract and without the existence of which it would not have been executed, which as is held by the decisions of the Supreme Court of Spain, dated May 20, 1864, and September 24, 1867, is not that incidental fraud to which reference is made in Article 1270. If the managing director of the Bank had not stated that the mortgage would be extended, Joy would not have signed such a liquidation of accounts.
    V. — Violation of Article 6 of the Civil Code, in citing as legal authority Partida V, Titles 11 and 14, laws 28 and 49, for when there is no provision in the Code, recourse can only be had to the customs of the place and to the general principles of law, but not to the Partidas, which have no legal force at present. Had the Court searched more closely, it would have found in the same Code something similar to these laws of Partida V, in Articles 1309 and 1310, the first of which provides that an action for nullity is barred from the moment the contract has been validly confirmed, and the second, that only contracts having all the requisites mentioned in Article 1261, that is to say, the consent, object and consideration thereof, can be confirmed. And, whereas, the consent is lacking in the instrument of liquidation of accounts of February 6, 1901, said contract cannot be confirmed, and this requisite being absent, the action for nullity is not barred.
    VI. — Erroneous construction of Article 1301 of the Code, in citing it as ground for declaring that Joy has no right to maintain an action for the nullity of the deed of February 6, 1901, for the reason that the right to bring such action only runs four years, beginning to run, in those of error or fraud, from the date of the execution of the contract, for if aforesaid deed was executed in the year 1901, that contract could not have been executed before, but could have been afterwards, and from that date to November 9th of the year when the action was brought, those four years of prescription had not elapsed. That Article 1301 is the one which authorizes Joy to demand the nullity of aforesaid deed. And here again 'comes up the absurd application of laws 28 and 49, Titles 11 and 14 of Partida V, for if these do not admit the nullity when the applicant has performed the acts which led to the contract, the nullity whereof he demands, as the performance of the contract implies its execution, and it is after such execution that Article 1301 allows four years within which to bring the action of nullity, it follows that Code and Partida contradict each other, and we must abide by the provisions of the former. But furthermore these laws of the Partida, although it is true that they provide that a person bound by fraud cannot allege the nullity of an instrument on that ground, in order to deprive him of his right, two requisites are necessary, to-wit: that he shall have fulfilled his promise, and that he shall have allowed to elapse the time fixed by the laws for the prosecution of an action for nullity. And, whereas, Joy has not fulfilled, but only commenced to fulfill, as stated in the judgment, the stipulations of the contract of February. 6, 1901, he does not come under the first requisite of aforesaid laws 28 and 49, which bars him from demanding the nullity of the contract; and, whereas, Joy has not allowed to elapse the four years as provided by Article 1301 to prosecute an action for nullity, the second requisite prescribed for this purpose by aforesaid laws 28 and 49, is likewise lacking.
    VII. — Erroneous construction of Article 1157 of the Civil Code, in not considering as paid by Joy to the Bank installments fifth to ninth of the mortgage deed, and authorizing the foreclosure proceedings for the collection thereof, which erroneous construction invalidates said execution. It has been clearly shown that the deed of liquidation of accounts of February 6, 1901, is legally void, and we have seen that by the deed of delivery of the coffee crop, dated July 12, 1898, the fourth, fifth and sixth installments of the mortgage were paid, and with the seven thousand five hundred provincial pesos, from the fire insurance collected by the Bank, and which by the mortgage deed it was bound to credit to said mortgage, the seventh, eighth and ninth installments were covered, the latter falling due in July 1899. These sums having been paid, the foreclosure proceedings instituted for their recovery would be legally null and void. It is true that on February 11,1901, when the foreclosure proceedings were instituted, Joy owed the Bank only the installment falling due on January 15, of the same year, but as the mortgage deed, agreeable to Article 26 of the Statutes, specifies that a foreclosure can only be had when two installments have become due, the writ of execution having been issued for only one, the proceedings are null and void.
    
      VIII. — Violation of Article 175 of the Regulations for the execution of the Mortgage Law, which authorizes declaratory suits demanding the nullity of foreclosure proceedings instituted on account of the maturity of the debt or in regard to the amount thereof, inasmuch as Joy does not owe the Bank the fifth to ninth installments for the recovery of which it instituted foreclosure proceedings, and the tenth installment alone does not involve the maturity of the debt, since two at least, are required for this purpose, which, as stated in the preceding allegation, was agreed to in the mortgage deed, and is provided for in Article 26 of the Statutes. The Court, therefore, should have admitted the complaint in the declaratory suit brought by Joy against the- Bank, demanding the nullity of the foreclosure proceedings.
    IX. — Violation of General Orders of January 19, and 31, 1899, and February 12, and April 28, 1900. Those of January 19th, and 31th, declared that mortgage debts were understood to be extended for one year from January 19, 1899; that of February 12, 1900, allowed a further extension of six months, and a similar extension was granted by that of April 28th, of the same year. Consequently, the debt which fell due in January 1899, could not be collected until January 19, 1901, and we find that the 5th to 9th installments of this mortgage, having been paid by Joy, the 10th, which appeared as maturing on January 15, 1901, will not fall due until January 15, 1903, for it is not to be supposed that the legislator’s purpose was to bring together several installments, and thereby aggravate the situation of the agriculturists whom it was desired to relieve.
    X. — Violation of Articles 1215 of the Civil Code, and 577 of the Law of Civil Procedure, in admitting as evidence the statement made by the attorney-at-law of said defendant in his speech to show that the Bank had paid Mayol his first mortgage. Rever have we seen a judge or Court admit a fact to be proven on the strength of a simple declaration made at the trial by the attorney for one of the parties litigant.
    XI. — Error of law in the consideration of evidence, for it appearing of record from authentic documents, that Pedro A. Mayol instituted foreclosure proceedings againt Joy to recover the amount of his mortgage of thirty thousand pesos, which was not satisfied at the time the Bank instituted proceedings against Joy, for the recovery of what it had not paid Mayol, as appears from the certificate issued by the Registrar of Property for the purpose of advertising the public sale, the Court, notwithstanding this documentary evidence, disregards it, and basing its decision on the mere.statement of the Bank’s attorney at the trial, to the effect that Mayol’s credit had been paid, refuses to declare the nullity of the foreclosure proceedings instituted for the recovery of certain sums that Joy would be owing the Bank, if the latter had paid same to Mayol, which it had not done when it instituted foreclosure proceedings against plaintiff. And we disregard the strange and singular statement made by the Court, in the latter part of the first conclusion of law to the effect that inasmuch as there existed the deposit made by Joy with the Bank for the purpose of satisfying Mayol’s mortgage, the fact that the payment to Mayol had not been made did not prevent the Bank from instituting ■ foreclosure proceedings against Joy, because its mortgage credit was recognized by a public document, and at all events, the Bank was responsible for the payment of the mortgage to Mayol. We had understood that although a debt appeared in a public document, if said debt involved an antecedent condition, such as that the Bank was to pay Mayol first and then Joy would pay the Bank, as long as the Bank retains that money in its possession how could it owe it to . Joy? By virtue of what law can a person be called upon to pay to third parties for disbursements which the latter have not made? As to the Bank being responsible for the payment of Mayol’s mortgage, we do not so understand it, as Mayol was a third person who was not obligated by the agreements entered into between Joy and the Bank, and, moreover, Article 105 of the Mortgage Law says that mortgaged property, whoever may be its owner, is responsible for the mortgage, and not persons, and this is so true that Mayol instituted foreclosure proceedings against Joy, regardless of- both the debtor and the Bank.
    XII. — Violation of Section 63 of General Orders No. 118, Series of 1899, which reads: “Costs shall always be paid by the litigant who loses his case on all points.” So that as one of the allegations of Joy in his complaint is that he had deposited thirty-seven thousand pesos with the Bank for the purpose of cancelling Mayol’s mortgage, and this has been admitted by the Court in its judgment, it follows that the court has sustained one of his claims, and if all the costs are taxed against him, Section 63 of General Orders No. 118, Series of the year 1899, would be violated.
    
      Mr. Rafael López Landrón, for appellant.
    
      Mr. José cle Giozmán Benitez, for respondent.
   Mr. Associate Justice Louis Sulzbactier,

after making the above statement of the case, rendered the following opinion of the Court: Article 4 of the Civil Code could not have been violated in the sense urged under the first allegation of the appeal, inasmuch as it does not appear in any manner whatsoever that appellant has waived any rights to the prejudice of a third person, but, on the contrary, from the deed of February 6, 1891, it is evident that he voluntarily made use of the right granted him by Article 1172 of the Civil Code, in declaring to what debts the payments should be applied. The obligation contracted by plaintiff with the Bank Territorial y Agrícola, being recognized by the plaintiff in the aforesaid instrument, in order that the consent given by error may essentially. affect the validity of the document and the legal relations voluntarily contracted therein with the creditor, it would be necessary to show that the error sprang from circumstances contained in the deed, but such error can in no manner refer to facts foreign to the contract, as are the renunciations of rights to the prejudice of a third person, wherefore the violation alleged in the second ground of the appeal has. not been committed. If the fraud, without which the contract would' not have been executed, by vitiating the consent, produces the nullity thereof, in order to maintain the action for fraud, it is necessary that its existence should be established, and as the Court below denies as a fundamental ground the existence of fraud before consent, and this is a point of fact submitted to the consideration of the Court, a quo, which has not been contested in due form, points 3, 4, 5, and 6, of the appeal have no ground to stand upon. Even granting for a moment that the deed of February 6, 1901, was void, as claimed by appellant, still it could not be held that the payments had been made with the deed of July 12, 1898, referred to in the seventh ground of appeal, because in order to sustain successfully this allegation, it would be necessary that the conditions constituting the obligation should have first been fulfilled, such as the harvesting of the crop, its sale, liquidation and full payment of the account, and other sums agreed upon, and inasmuch as said installments were not paid, Article 175 of the Regulations for the execution of the Mortgage Law was not violated upon issuing the writ of execution, and therefore, the foreclosure proceedings instituted by the Bank Territorial y Agricola against the appellant, for the recovery of its credit, cannot for this reason be declared null. The General Orders that are cited and analyzed under the ninth allegation of the appeal could in nowise modify or annul what the parties, haying capacity to contract obligations and adjusting themselves to the laws which regulated their contracts, had freely and voluntarily •agreed, and hence said provisions were merely in the nature of a procedure whereby the collection of installments was suspended for a certain time and under specified circumstances, but it could never be presumed that the creditor should waive the collection of his mortgage credit after the suspension of proceedings had ceased, on the supposition that by reason of aforesaid orders, the payment of the debt which fell due in January 1899, could not be demanded until January 19, 1901. The tenth ground alleged on appeal has no practical application, because the fact that the Court did consider the statement made by the Bank’s attorney at the hearing to the effect that Mayol’s mortgage had been satisfied, is of no importance whatever for the determination of appellant’s principal claim, inasmuch as the Court had at the same time held, that even if such had not been the case, the Bank could still enforce judicially the payment of Joy’s debt in its favor. The District Court of Arecibo did not commit the error of fact alleged under the eleventh ground of appeal, inasmuch as it admits that when the Bank instituted foreclosure proceedings against appellant the mortgage constituted in favor of Mayol was not satisfied, thus giving due value to the instrument referred to, but at the same time it holds that even if this were not so, it would be no bar to the Bank’s right to claim against .Joy pursuant to the contract entered into which was in nowise subject to the aforesaid condition. The Court of Arecibo has correctly and faithfully construed the provision in force with reference to costs alluded to in the last ground of appeal, because Rule 63 of General Order No. 118 of August 5, 1899, provides that costs shall always be paid by the litigant who loses his case on all points, and there is no doubt that in the present case there has been an absolute dismissal of all the substantial allegations contained in the complaint, namely, the nullity of the deed of February 6, 19Q1; the nullity of the summary ' foreclosure proceedings, and indemnity for damages, and this conclusion cannot be overcome by the declaration made in the judgment, inasmuch as the same was claimed on the strength of an evident fact contained in a public document acknowledged by the opposite party, namely, the deposit made with the Bank of the amount of Mayol’s mortgage. It follows then that the violations alleged in the appeal were not committed.

We should declare, and do declare, that the appeal in cassation taken by Lorenzo Joy Colón, does not lie, and tax the costs of appeal against him.

The proper certificate is ordered to be issued, and the record returned to the District Court of Arecibo for compliance therewith.

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