
    JUAN BERTRAN Y CASAÑAS ET AL. v. MULLENHOFF & KORBER ET AL.
    Equity,
    No. 315.
    The summary proceedings for the foreclosure of mortgages, provided by the mortgage law of Porto Rico, are not conclusive as to the rights of third persons with relation to the mortgaged property; and therefore an adjudication under said procedure cannot operate, either as an estoppel or by way of res judicata, to defeat an action brought by a holder of a second mortgage to secure a marshaling of assets.
    Opinion filed December 23, 1905.
    
      Messrs. Hartzell & Rodriguez, solicitors for plaintiffs.
    
      Messrs. Hermino Diaz and Cayetano Coll y Cuchi, solicitor for defendants.
   McKeNNA, Judge,

delivered tbe following opinion:

This cause has been argued and submitted upon the demurrers of Manuel Argueso and his wife, Ernestina Erias j Noya.

All the grounds of said demurrers, except that of res judicata, were raised in the demurrer of Mullenhoif & Korber, heretofore decided herein; and said grounds of demurrer are overruled for the reasons more specifically set out in said former demurrer, to which defendants Argueso and wife except.

The ground of demurrer raising the question of res judicata, urged as a bar to the complainants’ right to maintain this bill, has been fully considered; and a careful examination of the authorities as applied to the allegations of the bill satisfies the ■court that the recovery and judgment and execution of the. district court of Humacao will not avail to defeat complainants’ right to maintain the action.

Article 175 of the regulations for the executions of the mortgage law characterizes foreclosure proceedings thereunder as “summary proceedings,” and provides that they shall be ■ex parte in their nature, and more esepcially so, by the terms of the provisions, as to the rights of third parties, which the complainants in this case would have been. It follows that, not having been parties to said foreclosure suit, and specifically prohibited by the terms of the law from intervening as their interests might appear under the allegations of the bill, said foreclosure decree cannot, therefore, be conclusive on the complainants to this suit. This would be the case, even though the complainants did not set up a charge of fraud and collusion between the complainants and defendants in said foreclosure proceedings in the conduct of said suit in said execution and sale in the district court of Humacao; for which reason the court overrules the demurrer setting up the question of res judicata, to which said defendants Manuel Argueso and his wife except. Said defendants are given until the next rule day to plead.  