
    Matheu, Plaintiff and Appellee, v. Murillo et al., Defendants and Appellants.
    Appeal from the District Court of Ponce in an Action for the Rescission of a Contract in Fraud of Creditors and for-Damages.
    No. 1554.
    Decided June 1, 1917.
    Contract — Rescission of Contract — Defraudation of Creditors — Judgment Against one Spouse — Conjugal Partnership. — Judgment being entered against the wife in an action brought against her only, an action will not lie for the rescission of a contract of sale entered into later by the conjugal partnership, of which the wife is a member, on the ground of a presumption that the sale was made to defraud the creditor, because the conjugal partnership is a distinct entity which was not bound by the judgment. Hence, the provision of section 1264 of the Civil Code is not applicable to said sale.
    Id. — Conjugal Partnership — Private Property. — In accordance with the clear provision of section 1319 of the Civil Code, a lot belonging to one of the spouses by acquisition before marriage ceases to be private property when after the marriage the conjugal partnership builds a house upon it.
    The facts are stated in the opinion.
    
      Mr. Manuel Tons Soto for the appellants.
    
      Messrs. R. Sánchez Montalvo and E. P. Gibson for the appellee.
   Mr. Justice del Toro

delivered the opinion of the court.

This is an action for the rescission of a contract made to defraud creditors, and for damages. The complaint alleges, in substance, that the plaintiff owned a certain interest in a hotel established in Ponce and sold it to the defendant,. Rosalia Murillo, the wife of defendant Rosaly; that the price agreed on was not paid and the plaintiff sued said Rosalia Murillo to recover the same and obtained judgment on May-29, 1913, notice of which was given to the defendant on the 30th of that month; that upon attempting to execute the judgment it appeared that the defendant had no property; that when the defendant purchased the plaintiff’s interest in the hotel she was the owner of record of a- house and lot on Comercio Street, Ponce, which are described; that with knowledge of the debt, of the judgment rendered against defendant Murillo and of the fact that she would become insolvent, lier motlier, defendant Berdeguez, in bad faitli connived with her daughter to defraud the plaintiff and purchased from her the said house and lot by a deed of September 5, 1913; that as a result of the transfer defendant, Murillo became insolvent; that by reason of this transaction, the plaintiff has been obliged to make a trip and incur expenses in detriment of his interests, and that he has no other recourse at law to obtain the relief to which he is entitled.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause' of action and their demurrer having been overruled, they answered denying generally and specifically all and each of the allegations of the complaint.

The case went to trial an'd the court rendered judgment for the plaintiff, whereupon the defendants took the present appeal.

One of the grounds of the appeal is that the district court “erred in holding that the bouse sold by Rosalia Murillo was charged with the satisfaction of the judgment against her.” The court has examined carefully the pleadings and the evidence and is forced to the conclusion that such error was committed and, therefore, that the judgment appealed from should be reversed.

It was alleged in the complaint and proved at the trial that the plaintiff sold his interest in the hotel to defendant Murillo. When he brought the action to recover the amount for which he sold it, he brought it against the said defendant only, and it was she against whom the judgment of May 29, 1913, was rendered.

The sale of the urban property whose rescission was prayed for by the plaintiff and adjudged by the court, was not made by defendant Murillo personally but by the conjugal partnership composed of Joaquín Rosaly and his wife, defendant Murillo, a distinct entity which was not bound by the judgment of May 29, 1913. Therefore, the provision of section 1254 of the Civil Code is not applicable to said sale.'

And it cannot be said that the lot on which the honse sold was bnilt was the separate property of defendant Rosalía Mnrillo. It was at one time because it was acquired by her previous to her marriage with Rosaly, but according to the ■conclusive provision of section 1319 of the Civil Code it ceased to be her separate property when, after the marriage, the conjugal partnership erected the house upon it.

The complaint should be dismissed and the judgment appealed from

Chief Justice Hernández and Justices Wolf, Aldrey and Hutchison concurred.

On June 21, 1917, a motion for reconsideration was overruled.  