
    Ex Parte Martínez.
    Appeal from the District Court of San Juan.
    No. 69.
    Decided April 4, 1904.
    Dominion Title — Original Petition -Instituting Proceedings. — Although it should lie stated in the original petition instituting proceedings to acquire the ownership of real estate whether the petitioner has or has not a written title of ownership, nevertheless, the petition having been entertained without such requisite, and without objection on the part of the court or of the Fiscal, it is not proper, after all legal formalities have been complied with, to withhold approval of the proceedings for want of such requisite, the omission of which should have been ordered by the court to be supplied in due season.
    
      Id- — Possession to Acquire Ownership — Goon Eaith — Proper Title. — In order to acquire ownership of real estate by ordinary prescription, possession for six years in good faith and under a proper title is neeessary, and it is essential to specify the nature or hind of title under which the possession is held in order to enable the court to determine whether or not it' is proper.
    STATEMENT OE THE OASE.
    This is a proceeding instituted in the District Court of San Juan by Luis Freye Barbosa to establish ownership of a rural estate, on behalf of Francisco Martinez Salas, pending before us on appeal taken by the petitioner from the decision of said court, rendered July 15, last, whereby the declaration of ownership applied for was denied.
    Attorney Luis Freyre Barbosa, as the representative of Francisco Martinez Salas, instituted proceedings in the District Court of San Juan to establish the ownership of a tract of land consisting of six cuerdas, situated in barrio “Cande-laria,” municipal district of Toa Baja, valued at seventy-two dollars, which he acquired through purchase from Telésforo and Marcela Ortiz, stating that he had no recorded dominion title thereto.
    The petition having been referred to the Fiscal, it was returned with the statement that he saw no objection to the taking of the evidence proposed. The proceedings were admitted, a call by proclamation was published summoning all the unknown persons whom the desired record might prejudice, and after all the formalities connected with the proceedings had been complied with, the witnesses Manuel Pacheco and Juan José Cesáreo, of legal age and residents of the locality, testified that they knew from their own knowledge that the land in question was the property of Francisco Martinez Salas, he having acquired the same about five years before from Telésforo and Marcela Ortiz, and that it was likewise true that he had from that time been in quiet and peaceable possession of said land, the witness adding that the previous possessors of the property in question had possessed the same for more than twenty years without opposition of a third party.
    The petitioner and the Fiscal, being the only parties interested in these proceedings, were summoned to a verbal hearing for the purpose of alleging whatever might by them be deemed pertinent to their rights, and neither having appeared, the District Court of San Juan entered judgment, on July 15 last, denying the declaration of ownership applied for, and setting forth as the sole ground for said decision, that only owners who have no written dominion title can avail themselves of the provisions of title XIV of the Mortgage Law, which circumstance must at least be stated in the petition instituting the proceedings, it being insufficient to allege the want of a recorded title.
    From this judgment the attorney for the petitioner, Francisco Martinez Salas, took an appeal, which was allowed for a review and stay of proceedings. The record was duly forwarded to this Supreme Court, after citation of the parties, and the appellant having appeared., the proper procedure was observed. A day was set for the hearing, at which the Fiscal of this Supreme Court was present and contested the appeal.
    
      Mr. Freyre Barbosa, for appellant.
    
      Mr. del Toro, Fiscal, for the People.
   Me. Chibe Justice Quiñohes,

after making the above statement of facts, delivered the opinion of the court.

Although, in the petition instituting these proceedings to establish ownership, it should be stated whether or not the petitioner is without a written dominion title, and it not being sufficient to state that he has no recorded- title, the court having admitted the proceedings proposed by Francisco Martinez Salas without that requisite, it cannot now, after having-gone through all the formalities of the inquiry, dismiss the ■case on its own motion, because of a defect of form which the court could and should have corrected at the outset, by refusing to allow the proceedings applied for without further ceremony.

In the instant case, however, the declaration of ownership requested by Francisco Martinez cannot be made, because the witnesses have only proven that the petitioner has been in possession of the land for about five years, which is not sufficient time to acquire ownership of real property by prescription, according to Judicial Order of April 4, 1899, invoked by petitioner as ground for his petition, and which requires .an uninterrupted possession for six years, in good faith and with a proper title; especially when it is likewise not proven that the previous owners of the land had acquired the same, inasmuch as the witnesses merely declare that they were in •quiet and peaceable possession thereof for more than twenty years, but without stating whether or not said possession was with a proper title, and what this was, so that the court might be able to determine whether or not it was a proper one for purposes of the acquisition of ownership.

In view of the judicial order cited and the other provisions applicable to this case, we adjudge that we should affirm and do affirm the judgment appealed from, with costs .against appellant.

Justices Hernández, Figueras and MacLeary concurred.

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