
    The “Caja of Economías y Préstamos” of San Germán v. Ayguabibas Et Al.
    Appeal from the District Court of Mayagüez.
    No. 53.
    Decided November 25, 1903.
    Executory Action — Execution oe Judgment. — When in an executory action a public sale has been ordered, the decision of the court must be enforced in the manner prescribed by law, without delaying the execution of the judgment, except through one of the means established by law.
    Award oe Attached Property. — The provisions of article 71 of the Mortgagee Law are clear and definite, and as no discrimination is made, they are perfectly applicable to the record of an award of attached property decreed by the Provisional Court of the United States in satisfaction of other credits, and entered subsequently to the date of the cautionary notice of said attachment.
    STATEMENT OP THE CASE.
    This is an executory action instituted in the District Court of Mayagüez by Ulises López, manager of the “Caja de Economías y Préstamos” (Savings Bank) of San Germán, against Juan Ayguabibas, for the recovery of a sum of money, in which action Sabater Co. have intervened, and the case is now pending before us on appeal in cassation for error of law, now appeal, taken by the execution creditor who has been represented in this Supreme Court by his counsel, Antonio Alvarez Nava, Sabater & Co. being represented by Herbert E. Smith, Esq., while the party against whom the executory proceedings were prosecuted failed to appear.
    In aforesaid executory action, when the same had reached the stage of compulsory proceedings and the public sale of the attached property had been ordered, a petition was filed in the District Court of Mayagüez on July 13, 1901, by Frederick L. Cornwell, Esq., on behalf of Sabater & Co.,praying that the decree ordering the public sale of the attached property be vacated, inasmuch as the latter had been awarded to the said firm in an action against Ayguabibas prosee ated in the Provisional Court of the United States for the Department of Porto Rico, as shown by the certificate accompanying the petition, and thereby recognizing the right and authority of aforesaid Provisional Court, in accordance with the law. ,
    
    Upon this petition an order was made on July 15, 1901, which, literally copied, reads as follows:
    “Mayagiiez, July 15, 1901' — Entered as haying been presented together with the certificate and translation accompanying the same.
    “On March 12,1900, the manager of the ‘Caja de Economías y Préstamos-de San Germán’ (Savings Bank of San Germán) appeared before this-Court of Mayagiiez with a promissory note made by Maximino Rodríguez, and endorsed by Juan Ayguabibas and José López as sureties, in favor of' said Savings Bank, and due on the 30th of September, 1898, for seven hundred and thirty pesos and forty-three centavos, asking that a cautionary attachment be levied upon so much of the property of the surety Ayguabibas,. as would cover the sum due with interest and costs, and calling for the-identification of the signatures of the debtor and sureties.
    “By an order dated March 14, 1900, the debtor and sureties were summoned to appear, the requested cautionary attachment being issued against-the property of Ayguabibas, for account and on the responsibility of the' creditor, the same being.levied upon a tract of land planted with coffee,, bananas and pasture, situated in barrio ‘Rosario-Bajo,’ within the municipal district of San Germán, cautionary notice thereof being entered in the Registry of Property on Mach 29, 1900.
    “The debtor having recognized his signature, and his responsibility as surety being acknowledged by Ayguabibas, a writ of execution was issued on July 2, 1900, ratifying the cautionary attachment. The property being-appraised and a certificate from the registrar filed, showing that the notice of attachment had been entered before the title of ownership of the property had been recorded in favor of Sabater & Co., the present owners thereof, th.ey were notified of the suit in accordance with article 71 of the Mortgage Law, and the property offered at public sale, during the period and under the formalities prescribed therefor ; no bidder appearing on the day and hour set for the auction sale.
    “Sabater & Co., through their counsel, Mr. Cornwell, filed with the District Court of Mayagüez, a certificate issued by the clerk of the District Court of the United States, showing that on March 6, 1900, in the suit brought by Sabater & Co., against Juan Ayguabibas, plaintiffs had obtained a writ of attachment against said property; that said attachment had been levied in accordance with'the rules of the Provisional Court of the United States, and was definitely terminated on March 8, 1900, the property attached being subsequently sold by order of the Provisional Court of the United States for the Department of Porto Rico, according to the procedure established by said court, wherefore Sabater & Co. prayed that the order for a public sale of the property be vacated and that the right and authority of the Provisional Court of the United States for the Department of Porto Rico be recognized according to law.
    “The property attached by order of this court, on March 16, 1900, of which attachment a cautionary notice was entered on the 29th of said month, had been attached at the request of Sabater & Co. by the Provisional Court of the United States for the Department of Porto Rico, on March 6, which attachment was definitely terminated on March 8, 1900, the property being subsequently sold to Sabater & Co.
    “When a court of the United States having jurisdiction of á case takes cognizance thereof, no state court can interfere in the same matter or reverse any of its decision, according to the opinion of the Supreme Court of the United States rendered in the case of The Leadville Coal Co. v. Mac Creery,
    
    . 141 U. S. 475, in which it is held, that after a federal court, with jurisdiction over property, had determined the title thereto, such a decision cannot be reversed by any subsequent action of a state court.
    “Although it is true that the Provisional Court in its proceedings has not followed the provisions of the Mortgage Law, it is also true that it is not required to proceed under the laws of the country, because, having been created b.y General Order Rio. 88, series of 1899, it is therein clearly stated that the decisions of said court shall follow the principles of common law and equity as established by the courts of the United States, and its procedure and rule shall conform as nearly as practicable to those observed and followed in said federal courts (art. 4), and the courts of the United States are not required to follow the procedure of the local courts. Decision of the Supreme Court in case 4, New Orleans v. Louisiana Con. Co., 129 U. S. 45; Scott v. Niely, 140 U. S. 106; Gormley v. Clark, 134 U. S. 338; Ridings v. Johnson, 128 U. S. 212.
    “Were this court to order the cancellation of the record of the award, when requested, it would be tantamount to ignoring the attributes, and disregarding the powers and proceeedings of the courts of the United States, and depriving them of their j urisdiction. (See Central National Bank v. Stevens, 169 U. S. 432.)
    “The cautionary notice of attachment made in accordance with paragraph 3 of article 42 of the Mortgage Law, is essentially revocable and does not alter the character of the obligation nor convert a right in personal property into a right in real property, and a creditor who obtains it acquires preference only with respect to credits against the same debtor, contracted subsequently to such cautionary notice.
    “The provisions of article 71 of the Mortgage Law cannot be considered as applicable to Sabater & Co., because the title by which they acquired the property was an adjudication in payment made to them by another competent court in another action, the attachment whereof was decreed before the one levied by the ‘Caja de Economías y Préstamos de San Germán1 (Sayings Bank).
    “In view of the provisions cited, the application made by the ‘Caja de Economías y Préstamos de San Germán’ for a public sale is dismissed, said institution being left at liberty to prosecute its rights in the premises before such a court and in such an action as may be proper.
    “Thus it was adjudged and signed by the judges constituting the court, to ■which I certify — Arturo Aponte — J. A. Erwin — Luis Méndez — Gerardo Diaz, substitute”.
    Counsel for the “Caja de Economías y Préstamos de San Germán” made application for a reconsideration of this order, which was decided, on August 31 of said year, by an order which reads as follows:
    “Mayagiiez, August 31, 1901. In an order of April 16, 1901, made by this court, based upon the reasons set forth in the order of July 15 and, further, because the execution creditor had failed to state what the titles to the property were in order, the request for a public sale of the attached property was denied, and as the manager of the ‘Caja de Economías y Préstamos de San Germán,’ through his counsel, maintained that the public sale should be ordered, it was decided by a subsequent order, dated April 29, that with a view to verifying the truth of the statement made by the execution debtor, when required to exhibit the titles to the property, to the effect that Sabater & Co. are the present owners of the same and in whose name it is recorded, and which property is encumbered by the attachment decreed by this court, and for the purpose, moreover, of ascertaining the manner in which the acquisition was made, a certified literal copy, issued by the Registrar of Property of San Germán, of all the entries relating to the attached property be submitted.
    “In the certificate issued by the registrar it only appears that in the proceedings instituted in the Provisional Court of the United States of America in this Island, the marshal, the executive officer of said court, Samuel C. Bothwell, in compliance with an order dated April 3 of this year, attached as belonging to Juan Ayguabibas, the property in controversy, to secure the amount mentioned in the writ, the public sale of said property taking place on October 15 of last year, and the award thereof having been made in favor of Sabater & Co., who have said property recorded in their name.
    “Inasmuch as from said certificate of the registrar it appears that the writ of attachment of the Provisional Court of the United States was issued on April 3, 1900, that is to say, subsequently to the one issued by this District Court, the court, in view of the persistent efforts of the ‘Caja de Economías y Préstamos de San Germán,’ saw no objection to the granting of its request, until Frederick L. Cornwell, Esq., filed with the record a certificate from the Clerk of the District Court of the United States, which was ordered to be translated by the interpreter of this court, from which translation it would seem that on March 6, 1900, the plaintiffs Sabater & Co. had obtained a writ of attachment against the property described, that said attachment was effected in accordance with the rules of the Provisional Court of the United States, and was definitely terminated on March 8, 1900, the property being subsequently sold by order of the Provisional Court of the United States for the Department of Porto Rico, in conformity with the procedure of said court. '
    “Antonio Manrique de Lara, Esq., on behalf of the manager of the ‘Caja de Economías y Préstamos de San Germán,’ filed an application of March 12, 1900, for an order of attachment, winch was decreed on the 14th and issued by the clerk of this court on the 16th, at the request of the creditor who designated the property.
    “The attachment of property having been decreed by the District Court of the United States against Juan Ayguabibas, prior to the issuance of the order of this court, it is unquestionable that the last should be subordinate to the first, and if it was not known by the judges, as in the present case, it must be declared forthwith that the last attachment cannot supersede the one decreed by another independent judge.
    “The case of Sabater & Co. having been decided in the District Court of the United States, where the proceedings were first instituted, against the debtor Ayguabibas, the decisions of said court should be respected, and no jurisdictional conflicts provoked, which would not be proper in superior judges of different courts, nor are they authorized by the laws, nor can they prove of any practical benefit to the litigants.
    “In view of the legal provisions cited in the other order, and the judgment of the Supreme Court of Spain, on January 10, 1872, the motion for a reconsideration is denied with costs against the ‘Caja de Economías y Prés-tamos de San Germán.’ Adjudged and signed by the judges of the court, to which I certify — Arturo Aponte — J. A. Erwin — Luis Méndez — Gerardo Diaz, substitute.”
    From, the order of July 15 and the corresponding order of August 31 the execution creditor took an appeal in cas-sation for error of procedure, and filed notice of another appeal for error of law. The record having been sent up to this Supreme Court, the first mentioned appeal was dismissed by a decision of March 1, 1902, and as the latter had not yet been decided when an act establishing the Supreme Court of Porto Rico as a court of appeals was approved by the Legislative Assembly, March 12, 1903, said appeal was proceeded with pursuant to the provisions of said act, only counsel for the appellant being present at the hearing.
    
      Mr. Alvarez Nava, for appellant.
    
      Mr. Smith, for respondents, Sabater & Co.
    The other respondent did not appear.
   Mr. Justice MacLeary,

after making the above statement of facts, delivered the opinion of the court» as follows:

The findings of fact of the orders appealed from are accepted.

An executory action having been instituted in the District Court of Mayagiiez by the “ Caja de Economías y Préstamos de San Germán ”, against Juan Ayguabibas, for the recovery of a debt, and a public sale ordered by the court, said court should have carried out the decisiop in the manner provided for by the laws, without delaying the execution of the judgment, except through one of the methods provided for by the law.

The fact that the award made in satisfaction of another credit in favor of Sabater & Co. by the Provisional Court of the United States, of the attached property of Ayguabibas, has been recorded at the Registry of Property of San Germán, a record the date whereof is subsequent to that of the cautionary notice of said attachment in the same registry, instead of being a legal impediment to the execution of the judgment ordering the aforementioned public sale, article 71 of the Mortgage Law expressly prescribes what Bhould be done in such. a case, and the Mayagiiez court complied with said article when it directed by an order dated May 17, 1901, that Sabater & Co. be notified of the state of the proceedings, so that they might release the property, if so disposed, by paying, within ten days, the amount stated in the cautionary notice of attachment as covering principal and costs, which notification was made on the 15th of June following.

By the doctrine herein established, which is in harmony with the doctrine laid down in the decisions of this Supreme Court of September 20, 1901, and December 15, 1902, in cases appealed like the one at bar, from the Mayagtiez court, the authority of the decisions of the Provisional Court of the United States is not ignored, but on the contrary, its award to Sabater & Co. of the property attached in these proceedings is recognized. But as said award affects the cautionary notice of attachment entered at the instance of the “Caja de Economías y Préstamos de San Germán”, it it evident that so long as said notice is not duly canceled, Sabater & Co. must abide by the effects thereof, among which are those of article 71 aforesaid of the Mortgage Law.

" We 'adjudge that we should reverse and do reverse the orders of July 15 and August 31, "1901, from which this appeal is taken, and order the District Court of Mayagtiez to proceed with the public sale of the attached property, in accordance with the law, without prejudice to the rights Sabater & Co. may deem themselves entitled to. The above is ordered to be communicated to aforesaid court, and the record returned thereto, that due effect may be given to the same.

Chief Justice Quiñones, and Justices Hernández and Sulzbacher concurred.

Mr. Justice Figueras did not sit at the hearing of this case.  