
    Diez & Arrarás v. Bascos et al.
    Appeal from the District Court of Mayagüez.
    No. 31.
    Decided January 29, 1904.
    Lack ot Capacity — Proceedings.—Although the want of personal capacity may render null and void the proceedings instituted hy a party who, without any right, has prosecuted an action, such proceedings become valid ipso facto as soon as the aforesaid incapacity has been removed.
    Contracts — Nullity—Consent Given Through Error or Deceit — Evidence. — One of the essential requisites to the validity of a contract is the consent of the contracting parties, and consent given through error or deceit produces the nullity of the contract, and the party who alleges the nullity thereof must sustain the allegation by satisfactory evidence.
    Id. — Actions Eor Nullity. — The action for nullity of contracts shall subsist for only four years, blit in cases in which it is based on error or deceit the time must be computed from the execution.
    Deceit and Error. — Deceit and error are never presumed, it being necessary o. to prove them in each ease.
    
      PROCEEDINGS TO AVOID LITIGATION-INTERRUPTION OE PRESCRIPTION.-Proceedings to avoid litigation cannot prodnee the effect of interrupting prescription if the particular action he not instituted within the two months following the unsuccessful attempt to reach a conciliation by said proceedings.
    Costs. — Costs must be imposed upon the party whose petitions are in all things denied.
    STATEMENT OP THE CASE.
    In this ease summary proceedings were instituted in the “Audiencia” of Mayagiiez by Messrs. Diez & Arrarás, as liquidators of “Sucesores de Antonio Diez,” represented in this Supreme Court by Eafael López Landrón attorney-at-law, respondents and plaintiffs, and José Bascos, Monserrate García, bis wife, Narcisa Bascos, represented by Fernando Vásquez, attorney-at-law, appellants and defendants, for tbe recovery of a mortgage debt, pending before us on appeal in cassation, now ordinary appeal, taken by tbe execution debtors, from tbe judgment, wbicb reads as follows:
    “Judgment. — In tbe city of Mayagiiez, January twenty-nintb, one tbonsand nine hundred and three. An oral and public hearing was had in the executory action wherein the parties are Antonio Manrique de Lara, attorney-at-law, plaintiff, as the representative of the mercantile firm of Diez & Arrarás, liquidators of Antonio Diez, domiciled in Añasco, the defendants being Narcisa Bascos y García, José Bascos and Monserrate García, and on their behalf Fernando Vásquez Ramos, attorney-at-law, the civil status of the defendants not appearing upon the record.
    “On March 5, 1902, the legal representative of the firm of Diez & Arrarás brought an executory action in this court, against Nar-cisa Bascos y García, José Bascos and Monserrate Garcia, alleging the following facts: That by deed, whereof first copy was submitted, the aforesaid defendants acknowledged being indebted to Successors of Antonio Diez for the sum of six thousand five hundred pesos, provincial money, equal to three thousand nine hundred dollars, wbicb sum they engaged to pay on December 31, 1897; that the said sum of six thousand five hundred pesos, provincial money, the debtors agreed to pay jointly and severally, meantime paying interest thereon at one per cent, per month; that as security for said obligation the debtors mortgaged a farm belonging to them, situated in barrio ‘Ovejas,' within the municipal district of Añasco, the same being described in clause 1 of the mortgage deed, also submitted; and that his clients had on several occasions demanded payment of the debtors, without success. He prayed that a writ of execution be issued against the property of the debtors for an amount sufficient to cover three thousand nine hundred dollars, with interest accrued and to accrue, at the stipulated rate, and such costs as might be incurred.
    "Upon examination of the documents on which the execution creditor based his right of action, the court issued the writ of execution, on March 7, 1902, and on the 12th of said month an attachment was levied on the farm, dwelling-house, machine for pulping coffee, tank, and other property described in the attachment proceedings on file at folio 26 of the record, the debtors immediately thereafter being summoned to appear at the public sale by service of process, together with copy of the complaint and documents accompanying the same.
    "The execution was opposed by Juan Quintero, attorney-at-law, on behalf of José, Bascos and his wife Monserrate Garcia, who pleaded the dilatory exception of want of legal capacity on the part of the plaintiffs, upon the ground that the articles of copartnership of Successors of Antonio Diez, limited, and of the attaching firm had not been recorded in the commercial registry, and was, furthermore, without capacity because it had failed to establish its character as liquidators of Antonio Diez and José Arrarás, nor had the articles of this copartnership, recorded in due form, been placed on file; wherefore he prayed' that the exception taken be in due time sustained and that the judgment ordering a public sale be not rendered, with costs against the attaching firm.
    "Hidalgo, attomey-at-law, on behalf of Nareisa Bascos, opposed the execution upon the following grounds: That José Bascos had begun dealings in account current with Antonio Diez, on February 3, 1887, which account was balanced on December 16 of the same year; that said account having been renewed in 1888, it was liquidated and balanced on December 18 of the same year, and continuing afterwards, was liquidated on January 10, 1890, when Bascos appeared with a balance against him amounting to one thous- and eight hundred and thirty-eight pesos and eighteen centavos; that each year the account between Diez and Bascos was liquidated, the interest agreed upon being charged to the latter, and the resulting balance entered as first item of the liquidated account, in which manner business between them continued to be carried on; that said account had never undergone interruption, and at the end of December, 1894, a liquidation was made resulting in a balance against Bascos of three thousand one hundred and seventy-nine pesos and twenty-eight centavos-, that when the firm of Successors of Antonio Diez, limited, was organized, and of which Antonio Diez was silent partner, the balance due the latter by Nareisa Bascos, namely, the said three thousand one hundred and seventy-nine pe'sos and twenty-eight centavos, became part of the capital of the new firm, which balance stood against Bascos and in favor of Sucessors of Antonio Diez, limited, on January 1, 1895; that Bascos continued doing business with the latter firm until the beginning of January, 1898, when another liquidation was made showing a balance against him amounting to six thousand and some odd pesos-, that Nareisa Bascos had had no business dealings whatsoever, either when a minor or after she became of age, with either Antonio Diez or Successors of Antonio Diez, limited, and that José Bascos, while doing business with both aforesaid mercantile firms, was a registered merchant, the goods giving rise to the debt being intended for his establishment, for which reason Nareisa could not owe anything, as she was not a merchant; that first Antonio Diez and afterwards Successors of Antonio Diez had always dealt with José Bascos, until they saw that the latter, through litigation, had lost a farm he owned in barrio ‘Miradero,’ within this municipal district, and from that moment they displayed all their efforts to induce and succeeded, by means of insidious stratagems, in inducing Nareisa Bascos to guarantee the debt contracted by her father, with a farm she held by donation in barrio ‘Ovejas,’ within the municipal district of Añasco, which she did by mortgage deed executed February 24, 1898, before Notary Santiago R. Palmer, her parents, José Bascos and Mom err ate Garcia, appearing with her in said instrument as grantors, and all of them being jointly and severally bound by said deed to the payment of the debt; and that it was not yet a month since his client Bascos had instituted proceedings to avoid litigation in the municipal court of Añasco for the purpose of obtaining the annulment of the said mortgage deed previously referred to. He therefore prayed tiiat the deed upon which the execution was based be declared null and void, as also the executory action, so far as Narcisa Bascos was concerned.
    “Notice of the opposition formulated by Narcisa Bascos was served upon the execution creditor, who made answer thereto, as follows: That José Bascos had always contracted for the use and benefit of his family and of their property; that his daughter Narcisa Bascos was not ignorant of these transactions, for on several occasions she had herself dealt directly with the customers of the firm, applying for advances and provisions, and recognizing the joint obligation of the account; that the mortgage deed executed in favor of the execution creditor was an act voluntarily performed by Narcisa Bascos; and that the action for annulment instituted by her had prescribed on February 24, 1901; for which reasons he prayed that the opposition be dismissed and the execution ordered to be proceeded with.
    “The opposition formulated by José Bascos and Monserrate Garcia was answered by the execution creditors as follows: That José Bascos had contracted with Antonio Diez and Successors of Antonio Diez, taking away provisions for the maintenance of his family and requirements of the farm which they owned in common with their ■daughter Narcisa Bascos; that they had freely and voluntarily executed the mortgage for the purpose of securing the account due by them to Successors of Antonio Diez; and that the latter firm had its ■articles of copartnership entered in the commercial registry. He prayed that this opposition be likewise dismissed and the execution ordered to proceed.
    “On the day set for the submission of evidence the execution creditor proposed the following documentary evidence: A certificate ■showing that the firm of Diez & Arrarás was entered in the commercial registry; a true copy of the articles of copartnership of Successors of Antonio Diez; a copy of the third clause of the deed of dissolution of the firm of Successors of Antonio Diez; he further proposed the proof of confession with respect to Narcisa Bascos, and as supplementary thereto, that of expert testimony for the comparison of handwriting. And the execution debtor, Narcisa Bascos, in turn proposed the following proofs: That of confession, doeumen-tary evidence, expert testimony, comparison of handwriting, and examination of witnesses, which proofs were declared pertinent by a decision of April 26, 1902, and ordered to be taken, with citation of .the adverse party. ^
    
    “At the oral trial, begun December 6, 1902, and continued on the 21st of January, 1903, the evidence offered was taken, after which counsel for the parties pleaded ^heir respective claims, and on the day set for delivery of the judgment, the court being held in public session, the same was unanimously approved.
    “The rules of procedure have been observed in the present litigation.
    “Associate Judge Luis Méndez Yaz delivered the opinion of the court.
    “In the opposition formulated by the execution debtors, two points are to be decided in this judgment, namely: Whether or not the executing firm, Diez & Arrarás, have the necessary personal capacity to institute these execution proceedings, as liquidators of Successors of Antonio Diez; the other point to be decided being, whether the title which furnishes a basis for the execution is valid, or on the contrary, contains some defect involving the nullity of the same.
    “As regards the first point, the lack of personal capacity on the part of the executing firm, it is wholly devoid of foundation, inasmuch as in clause 13 of the articles of copartnership of Diez & Arrarás, it is stated in a manner which leaves no room for doubt whatever, that the new firm shall be the liquidator of Successors of Antonio Diaz, said articles being entered in the commercial registry of Ponce, under date of April 1, 1902, as shown by the certificate found at folio 126 of the record; and even if said entry was made subsequently to the institution of the executory action, such a circumstance is devoid of the importance attributed to it by the representative of José Bascos and Monserrate Garcia, for although want of capacity involves the nullity of the proceedings instituted by a party who, without any right, has prosecuted an action, said proceedings become valid ipso facto, as soon as the aforesaid incapacity has been removed, as has been held in numerous decisions of the Supreme Court of Spain.
    “Moreover, as appears from the certificate found at folios 127 et seq. of the record, the firm Successors of Antonio Diez, limited, has been entered in the commercial registry of Ponce since August 28, 1895, which, is a further reason for overruling the exception of want of capacity, urged by counsel for José Bascos and his wife.
    “Although one of the essential requisites of the validity of contracts is the consent of parties, and according to article 1265 of the old Civil Code, consent given through error or deceit shall be void, it is necessary, however, that the person who pleads the exception of nullity shall sustain by evidence said nullity to the satisfaction of the judge, which has not been done in the present case; for far from having shown that Narcisa Bascos had signed by mistake the deed on which the execution is based, induced thereto by the insidious machinations of her creditors, it has been fully demonstrated that said Narcisa Bascos had executed said deed with full knowledge of the circumstances, she being aware of the transactions carried on with Successors of Antonio Diez both by herself and her parents, as may be verified upon examining the private notes' and papers signed by herself and acknowledged at the oral hearing and which are found- at folios 52, 53, 54, 55 and 56 of the record, so conclusive an argument not having been destroyed by any of the allegations of the execution debtor, who has only brought forward to prove the insidious machinations preceding the execution of the mortgage deed, the testimony of two witnesses, José Catillo and Yieente Lu-perroi, the former of whom, at the oral hearing, merely testified that on several occasions he had seen Luis Ortega, a partner of Successors of Antonio Diez, visiting the house of Bascos for the purpose of inducing Narcisa to execute a mortgage deed, as otherwise she and her family would suffer in their interests; and the other, while testifying to the same effect, added that he did not know whether or not the deed in question had been executed; which evidence is wholly insufficient to destroy the contents of a public document that must be considered valid and effective, unless the contrary be clearly proven.
    “Inasmuch as the execution debtors have failed to plead successfully both the exception of nullity and the alleged want of personal capacity, those pleas must be dismissed.
    “Having examined articles 1433, 1462, 1465, 1471, 1472 of the Law of Civil Procedure, the articles of the Civil Code applicable to the case, and General Orders No. 118, series of 1899, we adjudge that we should order and do order the execution to proceed until the attached property has been sold at public sale and that out of the proceeds thereof the execution creditors be paid the sum of three thous- and nine hundred dollars, together with the interest agreed upon at twelve per cent, per annum, and costs incurred and that may be incurred, until final payment.
    “Thus by this our judgment do we pronounce, order and sign, Arturo Aponte, J. A. Erwin, Luis Méndez Vaz.”
    'From the above judgment José Bascos,.his wife Monser-rate García and daughter ’Narcisa' Bascos, took an appeal in cassation for error of law, and the record having been forwarded to this Supreme Court, said appeal was proceeded with under the provisions of an act of the Legislative Assembly of March 12, 1903.
    A day was set for the hearing, when counsel for the parties presented such arguments as were deemed pertinent in support of their respective claims.
    
      Mr. Vázquez {Fernando), for appellants.
    
      Mr. López Landrón, for respondents.
   Mr. Justice Figueras,

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

The findings of fact of the judgment are accepted, and furthermore it is found that at the request of the execution debtor, Narcisa Bascos, a certificate was submitted in the lower court, issued by the municipal court of Añasco, wherein it is stated that said Narcisa Bascos had, under date of February 20, 1902, instituted an action to avoid litigation, for the purpose of securing the annulment of the mortgage deed of February 24, 1898, by virtue whereof Antonio Diez, and José Arrarás, managers of Successors of Antonio Diez, were summoned to appear; but there is no evidence showing that said proceedings to avoid litigation had taken place, or that the action for annulment of the contract had been instituted.

The conclusions of law as set forth in the judgment appealed from are accepted.

The right of action for nullity of contracts lasts only four years, which in the present case should be counted from the time the one contested consumed the time, namely, February 24, 1898.

The error and deceit alleged in ber favor by Narcisa Bas-cos, which should never be presumed, have not been proven, and even supposing the contrary to be the case, there would still be the fact that the right of action for nullity had prescribed by the lapse of the legal period allowed for the successful prosecution of said action.

Nor can the proceedings to avoid litigation produce the effect of interrupting prescription, if the proper action be not instituted within the two months nest following the unsuccessful attempt to reach a conciliation by said proceedings, and if this be so, the mere intention to institute them cannot produce such effects.

Inasmuch as all the matters alleged by the appellants must be rejected, all the costs should be imposed upon them.

Having examined the legal authorities cited in the judgment, and also articles 1300 and 1301 of the old, and 1267, 1268 of the revised Civil Code, and article 478 of the Law of Civil Procedure, we adjudge that we should affirm and do affirm the judgment appealed from, with costs against the appellants and execution debtors, José Bascos, Monserrate García and Narcisa Bascos y Garcia.

Chief Justice Quiñones and Justices Hernández' and MacLeary concurred.

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