
    Costas, Plaintiff and Appellant, v. Noriega, Defendant and Appellee.
    Appeal from the District Court of Arecibo in an Action for Annulment of Foreclosure.
    No. 3147.
    Decided April 28, 1924.
    Purchase and Sale — Mortgage—Extension—Eevendication—Waiver.—A mortgage having been created to secure the deferred instalments of the purchase quice of a property, if the purchaser subsequently extends the mortgage lien, the fact that he may have been sued in revendieation does not authorize him to withhold payment of the part of the price due. The extension of the mortgage is a waiver of the right conferred by section 1045 of the Civil Code.
    The facts are stated in the opinion.
    
      Mr. B. Muñoz Ramos for the appellant.
    
      Mr. A. Lens Cuena for the appellee.
   Mr. Justice Franco Soto

delivered the opinion of the court.

This is an appeal from a judgment dismissing the complaint for the reason that it did not set up facts sufficient to constitute a cause of action.

The pertinent part of the opinion of the trial court, in which the findings and conclusions on which the judgment is based are set forth, reads as follows:

“The plaintiff purchased the property in suit from Pedro Schuck G-rau in 1917 and mortgaged it to Schuck for the unpaid part of the purchase price, the property to remain so encumbered until full payment should be made of the debt with interest.
“Thereafter the unpaid part of the said mortgage was assigned by Schuck to Antonio Muñera in 1919 and later in the same year by the latter to Cándido Noriega, the defendant, the said part of the mortgage being added to another debt owed by the plaintiff to the defendant.
“Therefore, it may be seen clearly that this is not a ease that comes tinder section 1405 of the Civil Code. In subdivision (/) paragraph 4 of the complaint the plaintiff alleges that in the action of revendication brought against him Pedro Schuck G-rau was summoned as warrantor, and this, in my opinion, covers the entire right of defendant Costas in that suit. There exists no legal or actual relation between the said complaint in revendication and the foreclosed mortgage created to secure the part of the purchase price left unpaid by Heraclio Costas in the contract of purchase and sale entered into between Costas as vendee and Pedro Schuck as vendor. Schuck (was) and, by virtue of the different assignments of the said mortgage, Cándido Noriega, the present holder of the morgage (in the amount to which it was reduced), continues to be the plaintiff’s mortgagee, and the efficacy of his right 'to foreclose the mortgage can not be affected by the fact that the mortgagor of Noriega has been sued in revendication.
“The legal means of indemnity or the remedy that the law gives to a vendee who is deprived of the property purchased is the action of eviction, the object of which is to exact the warranty.
“On the other hand, the purchase of the property by Heraclio Costas from Pedro Schuck was his personal act, as was also the mortgage created by him in favor of Schuck to secure payment of the deferred part of the purchase price. These acts are not imputable to the vendor, nor are the acts alleged in subdivision (e) of the complaint as embraced in the action brought against Heraclio Costas as the purchaser of that property.”

Article 152 of the Mortgage Law reads as follows:

“A mortgage credit may be conveyed or assigned to a third person in whole or in part, provided it be effected by means of a public instrument, notice of which is given to the debtor, and that it be recorded in the registry.
“The debtor shall not be bound by said contract to any further extent than he was by his own.
“The assignee shall be subrogated to all the rights of the assignor. ’ ’

Section 1405 of the Civil Code reads as follows:

“Sec. 1405. — Should the vendee be disturbed in the possession or ownership of the thing acquired, or should have reasonable grounds to fear being disturbed by an action for recovery or mortgage suit, he may suspend the payment of the price until the vendor has caused the disturbance or danger to cease, unless he gives security for the restitution of the price, in a proper case; or should it have been stipulated that, notwithstanding any such contingency, the vendee shall be bound to make the payment.”

A part of the mortgage in this case represents the deferred part of the price that the vendee owed to the vendor, and upon assigning the mortgage the vendor did not change the position of the mortgagor, for the assignee was only subrogated to the rights of the assignor.

In this aspect it seems logical that the vendee, in the circumstances of section 1405, supra, would have the privilege of suspending payment and petitioning for the annulment of the proceedings brought to foreclose the mortgage for the deferred part of the price. Yet the complaint is so obscure and diffuse in its terms, notwithstanding its great length, that it can not even be interpreted liberally so as to deduce therefrom a clear cause of action.

The plaintiff alleges that in addition to the mortgage which encumbers the property sold as security for the deferred part of the purchase price the vendee created on the property a new mortgage as an amplification of the former and falling due on the same day. This implied a waiver by the vendee of the right conferred upon him by section 1405, supra, which was not available to him in this case for suspending payment of the deferred part of the price, and much less for attacking the foreclosure proceedings.

The judgment must be

Affirmed.

Chief Justice Del Toro and Justices Aldrey and Hutchi-son concurred.

Mr. Justice Wolf concurred in the judgment.

CONCURRING OPINION OP

MR. JUSTICE WOLE.

My idea of section 1405 of the Civil Code is that it must be limited to cases where a purchaser who apparently buys. a certain' thing finds himself threatened with a privation, redaction or diminution of the thing that is honght. The section has no application to purchases where the purchaser buys a piece of mortgaged property knowing directly or constructively that the property was mortgaged. By “constructively” I mean, of coarse, a record of the mortgage in the registry. If the parchaser knows or has reason to know that the property is mortgaged, especially where there is no deception by the vendor, the said parchaser has obtained from the vendor the thing he contracted for, in sach case, a piece of mortgaged property. The parchaser then is not distarbed in the possession or ownership of the thing ac-qnired. The “thing acquired” is a mortgaged piece of property.

The case is even stronger where a parchaser himself gives a mortgage for the deferred parchase price. Not only is sach a parchaser estopped by the creation of the mortgage, bat the final words of section 1405 mast be held to cover the case, namely, that the “stipnlation” referred to has been created. The vendor has then agreed to pay notwithstanding the mortgage, indeed, by reason of . it, and the mortgagee has a clear right to proceed nnder his mortgage. The rights of sach mortgagee and vendee are transmissible and the assignee baying the mortgage credit has, if anything, greater rights than the original mortgagee, as the former bays the mortgage credit from the recorded owner of sach mortgage right. I see absolately no legal possibility for a man who volantarily execates a mortgage to cover the deferred parchase money, to escape payment by invoking section 1405. Sach mortgagor is then going even a step farther than he woald be if he refased to pay the parchase price. It is essentially no different than if a par-chaser soaght to escape paying his own vendor the deferred parchase price by invoking said section, merely be-caase the vendor threatened sait.  