
    García v. Font et al.
    Appeal from the District Court of San Juan.
    No. 9.
    Decided April 12, 1904.
    Separate Property of Each Spouse. — The property brought to the marriage, or which is acquired during the continuance thereof for a good consideration, is the separate property of each spouse.
    Paraphernal Property. — Paraphernal property is that which the wife brings to the marriage without being included in the dowry, and that which she may acquire after the ereation of the same without being added thereto.
    Id. — Ownership of — Fruits—Property of Conjugal Partnership. — The wife retains the ownership of the paraphernal property, but the fruits of said property form part of the assets of the conjugal partnership, and it not appearing that the conjugal partnership has been dissolved, said fruits must be considered as coming within sub-division 3 of article 1401 of the Civil Code, that is, as property of the conjugal partnership.
    Marriage — Separation of Property. — In the absence of an express declaration in the marriage contract, the separation of the property of the spouses, during the marriage, shall not take plaee except by virtue of a judicial decree.
    
      STATEMENT OF THE CASE.
    TMs is an action institnted in the District Court of San Jnan hy Francisca García y Macias, as plaintiff, represented in this Supreme Court hy Attorney Plilario Cuevillas Hernán-dez, and afterwards hy Jacinto Texidor, against Catalina Font, represented by Attorney Eafael López Landrón, and Paulino Andreu, in default, involving intervention proceedings based on the ownership of a rural estate. Said action is pending before us on appeal in cassation, now appeal, prosecuted hy Francisca García y Macias from the judgment rendered hy said court, which reads as follows:
    “Judgment. — In the city of San Juan, Porto Rico, November 14, 1902. — TMs declaratory action, instituted by Francisca García y Macias, represented by Attorney Hilario Cuevillas Hernández, against Catalina Font y Pons and Paulino Andreu y Mora, declared in default, concerning proceedings in intervention based upon the ownership of a rural estate in Santurce, came on to be heard.
    “Paulino Andreu, having ascertained that Catalina Font was desirous of putting out at a life income the sum of three thousand pesos in provincial money, agreed, by an instrument executed on July 27, 1895, to pay over to her the sum of seven hundred and twenty pesos per annum by way of pension, and obligated himself either to buy or secure a mortgage with said capital, on a house in this city worth more than the said sum, for the purpose of insuring the performance of the agreement.
    “Catalina Font y Pons, basing her claim on a first copy of said public instrument, instituted an executory action against Paulino An-dreu y Mora for one thousand and four pesos principal, two hundred pesos of interest, and costs, and the execution having been issued an attachment was levied on November 28, 1899, on a farm situated in ‘Maehuehal,’ barrio of Santurce, with a dwelling-house and two hundred cuerdas of land, bounded on the north by the ocean, on tl),e south by the Seboruco swamp, on the east by lands of Toribio Rodriguez, formerly of the Royal Treasury, and on the west by lands of Pablo Clemente.
    “Francisca García y Macias, by deed executed on March 21, 1891, acquired from Eusebio Rodríguez y Fernández the co-ownership of a farm in the place, barrio, and with the number of cuerdas of land and boundaries previously mentioned, for a price agreed upon, given and paid at the time by José María San Juan y Berenguer, the sum which the recognized purchaser accepted being one thousand sis hundred -pesos, which said deed is recorded in the Registry of Property, in book 75 of record 24 of the capital, on April 20, 1895. By another deed of July 9, 1896, said García y Macias acquired from Luisa, Clemencia, ríe.minia and Jorge Goico the rest of the co-ownership of said farm recorded in their favor in the Registry, the price being seven hundred and fifty pesos in provincial money delivered as a donation by the said José María San Juan to the purchaser, who accepted it, and said sale was recorded in the Registry of Property on February 22,1897.
    “By declaration made before Notary Palmer, according to an instrument of April 4, 1899, Paulino Andreu and Francisca García y Macias, after setting forth that the latter has instituted an action for divorce against the former, for the reason that it is impossible for them to live together, and that for some time they have lived separately, and in view of the delays incident to the action for divorce, declare that both will be governed, until the rendition of judgment, by the following: That they do not and cannot live together without danger to both; that Mrs. Garcia is not required to give to Andreu anything of the fruits of the property brought" by her to the marriage and the other property which she may acquire, within the meaning of article 1385 of the Civil Code, nor Andreu to Garcia for her support; that they will waive all laws which may be in conflict with said agreement, Andreu ratifying the power of attorney given to his wife on July 9, 1886.
    “Basing her claim on these documents, Francisca García presented a complaint in intervention based on ownership against Catalina Font and Paulino Andreu, and requested that the ownership of the estate described in the foregoing findings of fact, and which was attached by Font, be declared to belong to him, that the attachment be raised and the property be left to his free disposal; the same facts being set forth as those which appear in the findings of fact in question, and adding that she did not deliver said estate to her husband to administer it, 'and that they had not had any children by the marriage, her legal conclusions being based upon articles 60, 1381 to 1386, 1396 1401 and 1531 to 1533 of the Civil Code.
    “Catalina Font having been declared in default, and the case having been opened for the admission of evidence, the following appears from that submitted by the plaintiff: Certified copy of the clerk of this court of parts of the record of the executory action consisting in the attachment proceedings; the note of the registrar of property refusing to admit the order for the entry of the attachment, on the ground that the estate is recorded in the name of Francisca Garcia; copy of the communication requesting a certified copy of the note of presentation of the deed by virtue of which the estate was recorded in the name of Mrs. Garcia, said certified copy setting forth that Mrs. Garcia presented, in her own right, the first copy of the deed of July 9, 1896, and the notarial instrument of December 30, 1896, by which Andreu consents to the donation made by San Juan of the money by which the property was acquired; and upon the margin of the entry of the note of the recording of the third part of the co-ownership of the Machuchal farm mentioned in previous findings- of fact, as well as the note of the presentation of the deed of the other two-thirds, and the making of the record.
    “There is also the testimony of witnesses of the plaintiff to the effect that they had always known Francisca García as a hardworking woman, and that Andreu is a man of evil disposition and has absented himself from the country; and the testimony of the defendant, Catalina Font, to the effect that she had loaned money to An-dreu with the consent of his wife, although such consent does not appear ; that the document is for nine thousand pesos, with the obligation of paying her sixty pesos per month, and that she was the one who ■carried her the money every month.
    ‘ ‘ The opinion of the court was prepared and delivered by Presiding Judge Juan Morera Martínez, as follows:
    “The separate property of each of the spouses is that brought to the marriage for a good consideration when it is done without conditions of any kind, and paraphernal property is that which the wife brings to the marriage without being included in the dowry and which she may acquire after the creation of the same without being added thereto.
    “The wife retains the ownership of the paraphernal property, ■but the fruits of said property form part of the assets of the conjugal partnership, and in the absence of a separation of the property in the manner prescribed by article 1433 of the Civil Code, and the conjugal partnership not therefore having been dissolved, said fruits must be considered as coming within the third subdivision of article-1401 of said Code.
    ‘‘ In the absence of a specific declaration in the marriage contract,, the separation of the property of the spouses, during the marriage,, shall not take place except by virtue of a judicial decree.
    “In the event all matters set forth in the complaint are not. acceded to the costs should be imposed without special imposition.
    “Having examined the legal provisions cited and other provisions, of general application of the Law of Civil Procedure, we adjudge that we ought to sustain and 'do sustain the complaint in intervention presented by Francisca García with respect to the estate upon which an attachment was levied against her husband, Paulino Andreu, in the-executory action instituted against him by Catalina Font, and dismiss-the same as to the proceeds or revenues of said estate, without special imposition of costs.
    “Thus by this our judgment do we pronounce, order and sign. Juan Morera Martínez, Juan E. Eamos, José E. F. Savage.”
    From this judgment Francisca García Macias took an appeal in cassation for error of law, which w^s allowed; and the record having been sent up to this Supreme Court, with a citation of the parties, the latter complied with the require'ment of examining the record, which was submitted to them with a view of conducting the case as one of appeal, by virtue of the act of the Legislative Assembly, approved March 12, 1903, relative to the conversion of this tribunal into a court of appeals. A day was set for the hearing, which took place on the 30th of March last, when counsel for the parties alleged all proper matters in support of their respective claims.
    
      Messrs. Cuevillas and Texidor, for appellant.
    
      Mr. López Landrón, for respondent.
    The other party appellant did not appear.
   Mr. Justice Fig-ueras,

after stating the foregoing facts, delivered the opinion of the court.

The findings of fact and conclusions of law of the judgment appealed from are accepted.

An order having been made in furtherance of justice, the record of the action for divorce instituted by Francisca Garcia Macias against her husband, Paulino Andreu Moro, was brought before the court, and it appears therefrom that on October 6, 1902, judgment was rendered in the District Court of San Juan sustaining the complaint, and by virtue thereof a decree was entered dissolving the marriage entered into by said spouses on July 2, 1886, with respect to its civil effects. It also appears that the action was conducted in default of the defendant, and that the heading and adjudging portion of said judgment were published on the 13th, 14th and 15th of November, 1902, in the “Heraldo Español,” a newspaper published in this city, and that all this was done in pursuance of the provisions of article 283 of the Law of Civil Procedure.

The errors assigned at the time of perfecting the former appeal in cassation have not been committed.

Costs should be imposed upon the party whose claims are totally rejected.

In view of the legal provisions cited in the judgment appealed from, the Act of the Legislative Assembly of March 12, 1903, articles 358 and 371 of the Law of Civil Procedure, and General Order No. 118, series of 1899, we adjudge that we should affirm and do affirm the judgment rendered by the District Court of San Juan on November 14, 1902, with costs against the appellant, Francisca García Macias, without prejudice to the rights which may appertain to said party by virtue of the judgment rendered in the action for divorce instituted against her husband Paulino Andreu. The records in the intervention proceedings and the action for divorce, which were produced in compliance with the order made in furtherance of justice, are ordered to be returned to the District Court of San Juan with a certified copy of this judgment.

Chief Justice Quiñones and Justice Hernández concurred.

Justices Sulzbacher and MacLeary álso concurred, but stated that they did not concur in the opinion in so far as it admits as evidence the judgment rendered in the divorce suit, "which formed no part of the record of the lower court.  