
    JOSEFA RUIZ DE NOBLE ET AL., Complainants, v. ELISA GALLARDO Y SEARY ET AL., Respts.
    San Juan,
    Equity,
    No. 524.
    Refacción and Limitations.
    Refacción Contract — Definition.
    1. A refacción credit, arising from a refacción contract, is one by law attached to a loan which brings into existence or preserves that which otherwise would not exist or would perish. It goes back through all the Spanish law to Roman times, and applies in Porto Rico especially to agricultural crops.
    Same — Third Parties.
    2. Under this principle a tacit mortgage preferential lien is given superior to all creditors not specially privileged.
    Same — Extent.
    3. Where the contract on its face refers to making a crop, the lien is limited by law to the crop and to the interest the planter has in the land. It must be definite and public.
    Refacción — Registration.
    4. Before the present registration law such a contract must be noted in the Anotaduria of Mortgages.
    Registration — Registrars.
    5. The duties of a registrar are administrative rather than judicial, and, although his opinions are persuasive, they do not con-elude a law court. Particularly is this so if there are two opposite decisions.
    Contracts — Prescription.
    6. After thirty-five years it is not material whether the thirty-years statute of repose or the twenty-years statute as to mortgages applies. Either is sufficient as to land, and the shorter period applies as to personal obligations.
    Keeping Alive — Liens.
    7. A general mention of liens does not necessarily include keeping alive a refacción contract.
    Anotaduria — Mortgage Law.
    8. A transaction antedating the mortgage law is governed by the provisions as to an Anotaduria de Hipotecas.
    Opinion filed June 6, 1914.
    
      Mr. N. B. K. Petiingill for intervening petitioner.
    
      Messrs. Travieso & Yriarte for defendants.
   HamxltoN, Judge,

delivered tbe following opinion:

Tbis is a petition in tbe nature of a bill of intervention, to wbieb answers bave been filed, and a plea of tbe statute of limitations bas been interposed. It is now submitted upon tbe merits, tbe only evidence noted being documentary. It ■consists of exhibits and papers filed in tbe main case, and also ■certificate of registrar of property at San Juan of inscription ■of tbe finca of “San José Cacigue” in 1912, and of tbe entries in tbe old Anotaduria of Mortgages in 1864.

Tbe facts of tbe case were examined by tbis court and are found in an opinion by Judge Eodey dated July 6, 1909.

It seems that in the year 1864 Ramon Rniz Gandía was in debted to Rufino de Goenaga, ancestor of the interveners, in the' sum of $6,063.35, for which a notarial instrument was given,, now claimed to be a refacción. This was recorded in the Ano-taduria de Hipotecas. It is claimed to cover the plantation of San José de Cacique. The actual ownership, however, of Gandía, had been not of the whole, but of an undivided interest, but he also leased the interest of his cotenants. The same contract was continued for several years, and, while the bill alleges that it is still unpaid, the answer sets up that it has been paid. Said Gandía became bankrupt, and in the course of the proceedings Ricardo Gallardo, ancestor of the defendants, bought the plantation. It is alleged on the one side, and denied on the other, that he recognized the lien now in question.

Several defenses are set up to the bill, among them that the instrument in question was not a mortgage of the land, that the claim has prescribed and has been paid. There is no question that the original contract was recorded in 1864 as a refac-ción mortgage, but at the time of opening new books of record a new registrar in 1906 declined to authorize the transfer of the old record to the new. The original contract is not in evidence under the ruling of the court, but the renewal of the contract dated 26th of November, 1864, was properly recorded, and therefore admitted in evidence, and by recital seems substantially to incorporate the excluded paper.

1. Was this a refacción contract? The instrument of 1864 recites that that of October 31, 1862, was “a deed of refacción,”' and the new instrument recites that the “parties have agreed by common consent to extend by this document the first contract of refacción signed on said 31st day of October, 1862, to the 31st day of August of 1865 next.” The parties therefore considered the new instrument as a refacción contract, the changes in the new instrument not affecting this part of the transaction. The contract says expressly that “the aforesaid Ruiz Gandia agreed to faithfully pay said sum (of 6,063 and 3%oo pesos) with the crops manufactured by the said estate, and .if not sufficient he shall pay with the sugar cane sprouts belonging to him, and which by this contract are encumbered with the crops, and Ruiz shall also pay all the sums which Goenaga shall advance him thereafter. . . . All the crop, that is to say sugar manufactured by the estate San José de Cacique, is hereby mortgaged, specially and expressly, and if it should not be sufficient,, then the sugar cane sprouts of the said estate, in order that it shall be satisfied.” And it continues that “Gandia cannot make any other agreement of refacción with any other person during-the time agreed upon in the present deed of extension, and until the debt to Goenaga shall have been completely paid.”

“By refacción credit is meant that which arises from the refacción contract, which is so called after the Latin verb re-ficere, to remake, to make over again, to bring into existence that which without the help of new works is going to perish.

“Amongst the Romans, such credit gave only a right of action in personam, unless it was expressly stipulated that the .property to be repaired or constructed should be mortgaged, except, when the money advanced was to be used for rebuilding a building almost in ruins, in which case a tacit mortgage Avas recognized in favor of the creditors, which mortgage was called, ne urbs minis deformetur.

“Laws 26 and 28, title 13, Partida 5, merely declared that. the 'refacción creditor’ should have a legal mortgage upon the bouse tbat bad been rebuilt or repaired, but without determining bow tbe execution of tbe contract was to be proven, nor tbe •conditions tbat should appear in tbe contract, tbe only requirements being tbe receipt of tbe money for tbe work to be done and tbe investment of tbe amount in tbe said work.” Sentences of tbe supreme court of Spain, of December 1, 1868, and of April 13, 1882. 2 Galindo & Escosura’s Comentaries on Mortgage Law, page 521.

So far as its express terms go, tbe lien given is on tbe crop and ratoons, and in Porto Pico at least tbe ratoons hardly renew themselves for more than three or four years. “To tbe fulfilment of all tbat has been set forth in tbe present deed, tbe appearing party hereto binds bis present and future property, with tbe clause which allows courts to have tbe same carried into execution, . . . renounces all laws and rights in bis favor,” says tbe contract, and it also expresses tbe “understanding tbat tbe general obligation as to property is not to abolish or impair tbe special obligation, and on tbe other band tbe latter is not to abolish or impair tbe former, as Goenaga can make use of either as be may deem bast; tbe crop' ... is here* by mortgaged, specially and expressly.”

2. It is contended tbat tbe provision as to “general obligation” refers to a tacit mortgage which tbe law gave to tbe refaction creditors upon tbe real estate benefited. In this way it is claimed that, while tbe terms of tbe contract refer to crop and ratoons only, they also refer to tbe general law, which extends tbe lien to real property.

This has been held by tbe supreme court of Spain applicable to building a railroad track. 60 Jurisprudencia Civil, 909, Dec. 30, 1886. It has also been held tbat “there was conceded by the ancient legislation applied in the present case to the refacción creditors a tacit mortgage and preference upon the thing subject to the refacción superior to all creditors not specially privileged.” 63 Jurisprudencia Civil, 837, May 26, 1888.

So, as to pipes furnished to a water company, wherein it was held that both the Roman law and the Partidas recognized the doctrine of tacit mortgage and preferential lien upon the “finca refaccionada” for all indebtedness “que hayan servido para comprar, fabricar, ó reparar navo, ó edificar casa, ó com-prar tierra ú otras cosas semejantes.”

3. The cases cited go somewhat upon the principle of salvage in admiralty, giving a tacit lien upon vessels, houses, or lands for the money used in building or preserving them. It cannot be said, however, that it is at all clear that, when the contract on its face refers to making a crop, it is to be construed as applicable to the land, the more especially where, as in this case, the party making the refacción contract was the owner of only an undivided interest in the land. It is true that he was in control of the whole property, but the lien recitals should probably be limited to the interest which he had, that is to say, ownership as to an undivided interest, and leasehold as to the rest. So far as appears, the leasehold must have long since expired.

“Law 3, title XVI. Book X. of the Novísima Recopilación, declared that in order to avoid frauds, suits, and damages to purchasers or other persons having an interest in mortgaged properties, an entry should be made in the registry of mortgages of every instrument containing a special or express mortgage or encumbrance of real property, and provided at the same time that tbe mortgaged property should be designated therein by an expression of the names, area, location, and boundaries; and that the term real property should be taken to include, besides houses, hereditaments, and other rights in the realty, the annuities (censos) and other perpetual rights which might be the subject of an encumbrance or mortgage; and that in case the' registration should be omitted, the said instruments should not be used as evidence at the trials or outside of the trial, for the purpose of foreclosing the mortgages.

“From such legal provisions it must be inferred:

“1. That a general mortgage over all of the properties of the debtor had been left without force or effect, inasmuch as, the registration thereof not being required, it was supposed that, there could be no fraud nor suits nor damages to any purchaser or party interested in the land, which would not carry with it the burden of the mortgage, when transmitted to a third party.
“2. That inasmuch as the mortgaged properties had to be designated by an expression of their names, area, location, and boundaries, future goods or properties could not be the subject of a mortgage, because they could not be designated in the manner provided by law.
“3. That personal property could not be the subject of a mortgage, because the law referred exclusively to real property and to rights that are real in their nature.
“4. That. this law introduced in our mortgage system the-requirements of specialty and publicity.” 2 Diccionario d& Legislación Hipotecaria y Notarial, 67.

4. It is alleged that the contract was accordingly noted in. Book 19 of the old Anotaduria of Mortgages, and that the debt was recited as a refacción debt for advances made for agricultural purposes.

Under tbe Spanish law, as under tbe present Porto Bican law, tbe registrar bad semi-judicial powers, and if be declined to register an instrument an appeal lay from bis decision. In tbis ease, however, be registered tbe paper. There is no citation made showing that tbis bound any except tbe parties to tbe instrument.

5, Furthermore, if this registration was to be regarded as a precedent, it was neutralized by a subsequent registrar. When, in 1912, it was sought to transfer tbe old registration above to tbe new registry, the present registrar declined on tbe express ground that tbe paper actually placed a lien only upon products to be manufactured, and did not place any encumbrance upon tbe property. Tbe Anotaduria, therefore, was said to have been given a wider scope than was proper, and therefore a mere cautionary notice, good for a limited time, was entered. No appeal was taken from tbis decision.

Whatever be tbe powers of tbe registrar, however, they are not beyond re-examination by tbis court when rights are affected that are in suit here. Tbe registrar’s office is rather administrative than judicial. 80 Jurisprudencia Civil, 907, No. 210. It should be held to determine matters prima facie, and a decision by a registrar may be persuasive, but. in tbis instance there are two which come to opposite conclusions. They cannot be said to throw much light upon tbe subject or to control tbe case.

6. Tbe interval between the contract in 1864 and tbe petition of intervention in 1909 is thirty-five years. It would not seem material whether tbe thirty-years statute of repose or tbe twenty-years statute covering mortgages should be held to apply. Either would be sufficient. It is true that the contract under the foregoing views was not a mortgage except to the extent of the undivided interest in the property. The remainder of the debt would be a personal obligation and barred under § 1865 of the Civil Code of Porto Rico.

7. The complainant, however, seeks to avoid the question of prescription by allegation of recognition of the claim in a deed of cancelation of mortgage executed by Gallardo on August 10, 1883. That instrument refers to liens, but does not necessarily include the claim now in suit. It says that “Gal-lardo being the owner of the property subject to-the liens thereon, he has been paying the same in different instalments.” The claims mentioned are said to be those according to the books of the old Anotaduria, and a certificate of the registrar is that this old book contained a refacción in favor of Goenaga. This is too general to amount to an express recognition of the claim at bar and stop the running of the statute of limitations or the principle or statute of repose.

8. This case is not governed by what is called the mortgage law, as that was adopted after accrual of the rights now urged at bar. 64 Jurisprudencia Civil, 256. The law governing the Anotaduria de Hipotecas is much older. It goes back to the Novisima Recopilación, title 16, Law 3. It was abolished by royal decree of February 28, 1879, but that did not affect the rights in this case.

It follows from the above discussion that the bill of intervention is not sustained by the proof and must be dismissed.  