
    Berríos v. Rev. Carmelite Mothers.
    Appeal from the District Court of San Juan.
    No. 2.
    Decided June 8, 1903.
    Pbescbiption. — Creditors.—Although in accordance -with Article 1937 of the Civil Code creditors and other persons desiring to avail themselves of prescription may do so in spite of the tacit or express waiver of the debtor or property owner, this power may only he exercised after the property which the debtor is in possession of has been sued .upon for the recovery of the amouut due.
    Costs. — Costs should be imposed upon the litigant who loses his ease on all points.
    STATEMENT OF Tl-IE CASE.
    In the appeal in cassation, now appeal,  pending before this court in a declaratory suit regarding prescription of an action for the recovery of an annuity and interest thereon, taken by José Valentín Berrios, an employee and resident of this City, represented by Antonio Moreno Calderón, Esq. against the Reverend Carmelite Mothers, respondent, represented by Hilario Cuevillas Hernández, Esq., a request is made for the reversal of the judgment rendered by the District Court of San Juan, which literally reads:
    
      “In the City of San Juan, Porto Rico, this 10th day of December 1902, a hearing was had in the declaratory proceedings prosecuted by José Valentín Berrios, plaintiff, represented by Antonio Moreno Calderón, Esq,, .against the Reverend Carmelite Mothers, defendants, represented by Wenceslao Bosch, Esq., and afterwards by Hilario Cuevillas Hernández, in the matter of the prescription of an action for the recovery of the principal sum of an annuity {censo) and interest thereon.
    The said José Valentín Berrios filed his complaint and attached thereto a certificate of the record in the conciliatory proceeding instituted on behalf of José Valentín Berrios for the purpose of securing from the representative of the Carmelite Mothers an acknowledgment that the annuity of four hundred and ninety pesos and interest thereon, could not he demanded because the action had prescribed, and which annuity according to the Registry of Property of this City, Mauricio Guerra is said to have recognized as emcumbering the plantation known as “Caridad”, included within the boundaries specified in the deed of cancellation; the answer of the party defendant being that inasmuch as Berrios is not the owner of the aforesaid plantation his right to request the cancellation affecting said property is not recognized and, if he had any right in the premises, he could answer only upon his proving said prescription. In the said complaint he reproduced his petition and prayed further that it be declared that the annuity encumbers the property of Rafael Cofiño, called “Caridad”, and that the cancellation of the record thereof in the Registry be ordered, with costs against defendants.
    Plaintiff bases his action upon the following facts:
    That by a deed executed November 19, 1893, before notary Valdejuly, Lúeas B. Borges y Berrios sold to the aforesaid Cofiño the farm “Caridad”, with the boundaries as specified; that the price was six thousand pesos, Mexican coin, Cofiño obtaining four thousand pesos from José Valentín Berrios, a debt that was acknowledged by the former and secured by a mortgage on the property; that said property was further encumbered by a mortgage bond in favor of the Treasury, and it was supposed that it was also burdened-with a censo (annuity) of four hundred and ninety pesos, which censo had been acknowledged on June 8, 1894 by Mauricio Guerra, as appears in the Registry of Property; that in the first deed of 1893, it was stated that the aforesaid bond and annuity would be extinguished, because the vendor was to procure their cancellation, José Valentín Berrios agreeing to cancel these encumbrances, and in default thereof, Cofiño would pay only a sum equal to the one that had been canceled; that the bond was canceled and José Valentín Berrios collected three thousand pesos, Mexican coin; that by deed of 1892, executed before notary Monserrat, Cofiño and Berrios agreed to convert into á personal debt the balance of the mortgage, José Valentín. Berrios assuming tlie exclusive obligation of and responsibility for the cancellation of the annuity; that the annuity has never been acknowledged, for the acknowledgment giving rise to the annotation of the record in the old books of the Registry doe's not exist, and even if it did, it is not known that Mauricio Guerra had sufficient title or right to the property to create any encumbrance upon it and, moreover, the boundaries and acreage given are not those of the property; that no steps had been taken to collect the annuity or interest thereon from 1854 to 1893; the legal authorities cited in support of the complaint being: articles 1606, 1616, 1620, 1623, 1930, 1939 and 1963 of the Civil Code, Law 5th, Title VIII, Book II, of the “Novísima Recopilación”, and Law 21, Title XXIX, Partida III.
    The defendant answered praying that the complaint be dismissed with costs against the plaintiff, and alleging the following facts: That the deed of June 8, 1854, mentioned by plaintiff, was recorded in the registry of mortgages on the back of folio 30, volume 14, that from that time to date, several transfers of the encumbered property, were made, the present owner being Rafael Cofiño; that in all the sales it was stated that the property was encumbered by the annuity; that in 1895 the administrator of the Carmelite Mothers had transferred the annuity to the modern books of the Registry, where it appears on folio 146, volume 13 of Bayamón, record No. 8; that in the books of the administration the rents are entered as paid up to 1880, and the administrator having demanded of Cofiño payment of the outstanding rents since 1894, and failing to obtain payment, one month ago he brought a suit against him in the Municipal Court of Bayamón, and at the ensuing trial, an executory judgment was rendered against said Cofiño for four hundred and ninety pesos arrears, and costs. Defendant denies all the facts alleged in the complaint which are at variance with the foregoing statement, and alleges that plaintiff has no cause of action, and that the matters decided by the aforesaid final judgment requiring Cofiño to satisfy the same were res adjudieata and therefore that the claim of prescription set up by plaintiff be dismissed. He furthermore cited articles 1948, 1963 and 1973 of the CiVil Code.
    In the evidence introduced by the plaintiff there appear copies of the two. deeds of cancellation of the voluntary mortgage of November 19, 1893, and July 1, 1896, wherein it is stated that Lucas B. Borges, or his attorney-in-fact agrees to take steps to secure the cancellation of the annuity in the proper offices, and in case of failure, José Valentín Berrios shall become responsible for the payment of the rents outstanding on the date of the first deed, said payment to be made from property belonging to the latter, while in the deed of June 17, 1902, it is stated that Berrios had not yet secured the cancellation of the annuity, and it was agreed between him and Cofiño that the latter would give the former two promissory notes to be paid when Berrios should deliver to Cofiño a certificate showing that the annuity had been canceled, the cancellation charges, as also those of the suit to secure the same and such as might be caused to Cofiño for the payment' of matured interest, to be for account of Berrios, under the condition that should judgment be rendered refusing to allow the cancellation, or condemning Cofiño to pay the interest due, then the aforesaid promissory note would remain without effect.
    In addition to the aforesaid evidence submitted by the plaintiff there appears a certificate from the Registrar of Property, of the first record of the estate “San Antonio”, on folio 214, volume 20, of Bayamón, which is encumbered by annuities of one hundred and fifty, and four hundred and ninety pesos, in favor of the Carmelite Mothers, and the second record entered in favor of Osvaldo Abril. No evidence appears to have been submitted by the defendant.
    A day having been set for the hearing, counsel for the parties appeared and made such arguments as were deemed pertinent to their respective claims. Presiding Judge Juan Morera Martinez prepared the opinion of the court.-
    Defendant alleges that the plaintiff has no cause of action, on the ground that the property affected by the annuity belongs to Rafael Cofiño y López, and inasmuch as the plaintiff is not the owner thereof, and has never been in the past, the documents filed with the record showing that the encumbered property formerly belonged to Lucas Braulio Borges, who had acquired it by purchase, on May 26, 1885, from Escolástico Berrios, José Valentín Berrios has no cause of action and can not therefore claim the prescription of the annuity wherewith the property sold by Borges to Cofiño on November 19, 1893, is encumbered.
    In the third clause of the aforesaid deed of sale, Borges agreed to take steps, in the proper offices, to secure the cancellation of the annuity and the bond, and this shows the lack of a cause of action alleged by the defendants.
    Moreover, the action for prescription is of an exclusively personal character, for in certain cases the title and necessary conditions for the prescription must be considered, and, in others, the duration of the action exercised, and the time when it arose, so as to ascertain whether said action is barred or not; and inasmuch as the plaintiff can not bring such an action because he is not the owner of the encumbered property, it is not possible to determine from what date the right of action claimed by him should be reckoned, or whether the same was interrupted by its institution before the courts, by extrajudicial claim of the creditor, or by any act of acknowledgment of the debt by the debtor.
    Inasmuch as the said exception is well taken the complaint should be dismissed with costs against plaintiff.
    We adjudge that we should declare and do declare that the action prosecuted by José Valentín Berrios against the Carmelite Mothers, does not lie, and absolve tbe latter from all liability under the said complaint, with costs against plaintiff.
    Thus by this our judgment do we finally pronounce, order and sign. — Juan Morera Martínez. — Juan Hernández López. — Jacinto Texidor.”
    On December 22, 1902, notice of the judgment was served on attorneys Antonio Moreno Calderón and Hilario Cue-villas Hernández, whereupon the former, on behalf of his client, took an appeal in cassation for error of law, which was allowed and on the 9th of January the parties were cited.
    The record having been received in this Supreme Court, the parties appeared, and the procedure in the case was made to conform to the provisions of the Act of the Legislative Assembly, approved March 12, 1903, establishing the Supreme Court of Porto Rico as a court of appeals. The record having been submitted ta the parties and duly returned, the hearing was had on the 29th of last month, when counsel for both parties made their arguments before this court.
    
      Mr. Moreno Calderón, for appellant.
    
      Mr. Cuevillas, for respondent.
    
      
       See Session Acts of 1908 p. 59.
    
   Me. Justice Figueeas,

after making the above statement of facts, delivered the following opinión of the court:

Substantially all the findings of fact and conclusions of law of the lower court, excepting the third, are accepted.

Although article 1937 of the Civil Code provides that creditors and any other person interested in validating a prescription may benefit thereby, notwithstanding the express or implied renunciation of the debtor or owner, this power is subordinate to the provision of article 1111 of aforesaid code, and it has not been shown that the creditor Berrios had attached the property of which the debtor is in possession in order to collect what is due him.

Costs should be imposed upon the litigant who loses his case on all points. Pursuant to aforesaid articles and to Section 63 of General Order No. 118, of August 15, 1899, we adjudge that we should affirm, and do affirm, the judgment rendered by the District Court of San Juan, December 10, 1902, with costs against .apellant.

Messrs. Chief Justice Quiñones, and Associate Justices Hernández, Sulzbacher and MacLeary, concurring.  