
    Dimas López-Nazario, Appellant, v. Registrar of Property of Ponce, Respondent.
    No. 609.
    Decided March 11, 1925.
    1. Record op Title — Dominion Title Proceeding — Possession—Third Person. A dominion t-itle proceeding is not recordable when the possession of the property is recorded in the name of 'a third person, although he may have been summoned as former owner in the dominion title proceeding in which the record in favor of said third person was not made to appear.
    Registry of Property of Ponce, Miguel Planellas, Registrar. Decision refusing to record a dominion title judgment.
    
      Affirmed.
    
    
      José Toils Soto for the appellant. ■ The respondent did not appear.
   Mr. Justice Aldrey

delivered tbe opinion of tbe court.

Tbe Registrar of Property of Ponce refused to record a dominion title to a lot and bouses, because tbe possession of the lot was recorded in tbe name of another person.

Tbe case of Santiago v. Registrar, 26 P.R.R. 125, cited by the respondent in support of bis refusal, is applicable to this case, because in that case tbe registrar refused to record tbe ownership- of one of tbe three parcels which formed tbe property involved in tbe dominion title proceeding for the reason that its possession was recorded in the name of a different person, and this court upheld that decision on tbe authority of articles 20 and 82 of tbe Mortgage Law and various decisions of this court therein cited.

The appellant maintains, however, that in accordance with the decisions in the cases of Wiscovich v. Registrar of San Germán, 30 P.R.R. 122, and Porto Rican Leaf Tobacco Co. v. Registrar, 17 P.R.R. 215, and the decision of the General Directorate of Registries of Spain of October 16, 1886, 3 D. R. 544, the record should he made as requested, because the person in whose name the possession is recorded, Matilde Figueroa, was summoned through her heirs as previous owner of the property in the dominion title proceeding.

In the Wiscovich Case, supra, the possessory title proceeding was instituted for the reason that the property was recorded in the name of another person and it was sought to establish the fact of possession and at the same time to follow the procedure established by article 393 of the Mortgage Law in ease there is an entry contradictory to the record requested, that is, by summoning and hearing the person in whose name the property is recorded; and this court approved the action taken by Wiscovich, although it upheld the • refusal to record on the ground that in order to record another possession notwithstanding the previous contradictory record it was necessary that the consent of the person in whose name the entry had been made should appear with absolute certainty or that such person was duly summoned, facts which were not shown in that case. The case to which we are referring is not applicable to this case, because here it was not made to appear in the proceeding, as in that case, that there was a contradictory record in the name of Matilde Figueroa so tha't her heirs might oppose the declaration of possession on that ground, nor was the cancellation of the contradictory entry ordered but merely an ordinary dominion title proceeding was brought wherein the persons were summoned only as previous owners, without following also the procedure prescribed by article 393 of the Mortgage Law.

Nor is the Porto Rican Leaf Tobacco Co. Case, supra, applicable, because tbe ’fact tbat in a dominion title proceeding tbe persons from whom tbe petitioner bad acquired tbe property were cited and notices were published to all others whom tbe record of ownership applied for might prejudice and no one appeared in opposition, is not a sufficient reason for depriving of his right a person who has tbe possession of tbe same property recorded in bis name and who appears not to have been personally served with notice of tbe proceeding, unless be should have given bis express consent thereto or been beard and defeated in court; therefore, in tbe present case it is not sufficient tbat tbe heirs of Matilde Figueroa may have been summoned as tbe successors in interest of tbe previous owner of tbe property. Moreover, not even tbe names of tbe heirs of Matilde Figueroa are given, for which reason it is impossible to know from tbe dominion title judgment who are tbe said heirs.

Nor is tbe Spanish decision cited applicable to tbe instant case, for it only bolds tbat summons by publication is sufficient when the persons to be summoned are absent or unknown.

Tbe decision appealed from must be affirmed.  