
    National Cash Register Co., Plaintiff-Appellant, v. Albors & Rosario, Defendant-Appellants, and Francisco Forteza & Co., summoned, in warranty.
    No. 3734.
    Argued March 8, 1927.
    Decided July 20, 1927.
    
      Lopes de Lord & Zoyas Piswrro for tbe defendant-appellants. Hugh B. Francis and Manuel Cruz Horta for tbe plaintiff-appellant.
   Mr. Justice Aldrey

delivered the opinion of tbe court.

Tbe National Casb Register Company sued Albors & Rosario on October 9, 1922, alleging that on October 28tb of tbe previous year it bad sold conditionally to V. Calderón of A.guadilla a casb register No. 842-1919-182, tbe purchaser promising to pay a part of tbe price. in various monthly instalments and tbe contract being recorded in tbe Aguadilla register; that tbe plaintiff delivered tbe cash register to Calderón, but later and by mutual consent tbe contract was lescinded and it was agreed that tbe caisb register should be returned to tbe plaintiff; that tbe casb register w|as illegally transferred to Francisco F'orteza ■& Company who sold it to Albors & Rosario in whose possession it is, and-that tbe ownership title to tbe casb register remains in tbe plaintiff in accordance -with tbe contract and with Act No. 61 of 1916, wherefore it prayed tbe court to order tbe defendants to deliver tbe said cash register.

Albors & Rosario and Francisco Forteza & Co. opposed tbe complaint and after a trial tbe District Court of Ponce on appeal rendered judgment in favor of tlie plaintiff without special imposition of costs. That judgment was appealed from by all parties, but the plaintiff limited its appeal to the matter of costs.

It appears from the evidence introduced at the trial that after the. rescission by mutual consent of the contract of conditional sale entered into by the plaintiff and Y. Calderon regarding the cash register which is the subject of this appeal the National Cash Register Co. delivered the said cash' register to M. Cajigas & Sons as a, loan pending the delivery to them of another cash register which they meant to purchase, and that while it was in the possession of M. Cajigas & Sons the cash register was seized in bankruptcy proceedings against them and sold by auction to Francisco Forteza & Co., from whom it was bought later by Albors & Rosario. Both purchasers were ignorant of the fact that it was in the possession of M. Cajigas & Sons as a loan.

Although the National Cash Register Company cited in support of its complaint Act 61 of 1916 and the court based thereon the judgment appealed from, that act is not applicable in the present case because the claim is not based on a contract of conditional sale for the reason that the contract entered into with V. Calderón had been rescinded and the cash register had been lent later by the National Cash Register Company to M. Cajigas & Sons. Therefore there was between them no contract of conditional sale.

Notwithstanding the foregoing, the plaintiff should recover the said cash register from Albors & Rosario, for under section 354 of the Civil Code every owner has a right of action against the holder and the possessor of the thing for its recovery, and although it is true that Albors & Rosario “were bona fide purchasers of the cash register from Francisco Forteza & Co. who also acquired it in good faith in the public sale of the property of the bankrupt M. Cajigas & Sons, for which reason its possession is equivalent to a title thereto under section 466 of the Civil Code, yet that title is not sufficient of itself and without the lapse of three years specified in section 1856 of the Code for the prescription of ownership of personal .property to deprive the National Cash Register Company of its ownership. This question was considered at length and so decided in Garcia et al. v. Savino et al., 19 P.R.R. 265, and García v. Suro et al., 19 P.R.R. 720, to which we refer so as not to make this opinion too lengthy.

The plaintiff has not perfected its appeal as'to the costs nor filed any brief in support thereof.

For the foregoing reasons the appeal of the plaintiff must he dismissed and as regards the other parties the judgment appealed from is affirmed in all particulars.  