
    Vega v. The Registrar of Property.
    Appeal from a Decision of the Registrar of Property of San Juan.
    No. 10.
    Decided June 27, 1908.
    Prohibition to Alienate — Preference in Favor of the Ooowners of a House for Sale. — The property being recorded in the name of several ooowners. . under the limitation that, in case of sale, the vendors, the price being equal, shall give the refusal to the other coowners, they being prohibited to sell to a stranger if one of the interested parties should wish to buy, and in order to show that this condition had been complied with, it would be necessary for all the parties to sign the deed of sale; otherwise, to present the certificate of death of the eoowner failing to appear at the execution of the deed of sale, a deed of sale failing to comply with these requirements cannot be recorded in the registry of property.
    The facts are stated in the opinion.
    The appeal was taken ex officio.
    
   Mr. Chief Justice Quiñones

delivered the opinion of the court.

The hearing having been had in this appeal taken by Antonio Yega y Chiclana from a decision of the Assistant Registrar of Property of San Juan, refusing to record a deed of sale of two rural properties;

It appears that by a public deed executed in this city before Notary Mauricio Guerra Mondragon y Megias on December 11, 1897, Juan Mollfulleda y Chas, as attorney in fact for Bartolomé Cusso y Salada, sold to Matilde Yega y Merced and to the minors, Julio and Dionisio Yega y Merced and José and Aurora Merced y Aquino, two rural properties owned *by his principal, one consisting of 56,cuerdas of land situated in Gfuainabo, within the district of Bayamón, and the other composed of 25 cuerdas, in the barrio of “Los Frailes,” within the municipality of Río Piedras, in the following manner and under the following conditions: “In the first, property composed of 56 cuerdas, an undivided interest in 28 cuerdas to Matilde Yega y Merced and an undivided interest in 14 cuerdas to each, of the minors, Jnlio and Dio-nisio Yega y Merced; 10 cuerdas of the other property, consisting of 25 cuerdas in barrio of “Los Frailes” of Río Pie-dras to the said Matilde Yega y Merced; and an undivided half interest in 10 cuerdas to each of the minors, Jnlio and Dionisio Yega y Merced, and the remaining five cuerdas of the said property in undivided equal shares to the other minors, José and Aurora Merced y Aquino; it being a condition-of the said contract of purchase and sale, set forth in the third clause thereof, that “none of the purchasers may alienate or encumber their undivided - interests in the above-déácribed properties acquired by virtue of said contract, so long as Juliana Merced, with no other surname, should live, and that, in order to sell the same, the death of the said Juliana Merced ' must be shown to have occurred, by means of the proper certificate of death, which must be presented to the notary before whom the contract is executed, or suqh contracts as the party. in interest may wish to execute, such certificate to have the same effects in the registry of property, and any deeds executed without complying with this requirement shall be null, and void”; and by the following clause, which is the fourth, it is provided that “whoever the coowners may be, with the exception of the minors, José and Aurora Merced y Aquino, and, desiring at any time to sell their undivided interest, they must notify the other coowners, who shall be given the refusal thereof, and a sale cannot be made to an outsider if one of the interested parties should wish to purchase the interest of the-party desiring to sell, and, in order to show compliance with this condition, it shall be’necessary for all to sign the deed of sale or, in failure so to do, then the certificate of death of the. party unable to appear at the execution of the deed must be-presented. ’ ’ Upon its first presentation in this city this document was recorded in the registry of property, with respect to the parcel of five cuerdas of land sold to José and Aurora Merced y Aquina, and the record was denied with respect to tlie other parcels of land sold to the other purchasers because the same were not separately described.

This defect having been corrected by another deed executed before the notary, Gabriel Guerra y Acosta, on April 26, 1905, the said Matilde Vega y Merced and Julio and Dio-nisio of the same surname, sold to Antonio Vega y Chiclana the 20 cuerdas of land awarded to them, respecticely, in the property composed of 25 cuerdas situated in barrio of “Los Frailes,” of the municipal jurisdiction of Río Piedras, for the price of $100 for the 10 cuerdas, belonging to Matilde Vega and $90 for the other 10 cuerdas, belonging to the brothers, Julio and Dionisio Vega y Merced, who acknowledged that they had. received the price to their entire satisfaction, and this deed having been presented at the registry of property in this city for record, the registrar refused to record the same for the reason stated in his decision entered at the end of the document, a literal copy of which reads as follows:

“The admission to record of the deed of sale to Antonio Vega y Chiclana in the foregoing document is hereby denied because it appears from the first record of property No. 974, folio 196 of volume 17 of Río Piedras, that the vendors, Ma-tilde Vega y Dionisio and Julio Vega y Merced, cannot alienate or encumber the properties therein described during the life of Juliana Merced, and, in order to be able to sell the same, it is necessary to show that the said Juliana Merced is dead and, if the vendors desire to sell, the other coowners must he given the refusal to purchase at the same price, and a sale shall not be made to a stranger, should one of the parties in interest desire to purchase, and, in order to show that this condition has been complied with it is necessary that all the parties should sign the deed and, failing in this, a certificate of the death of the coowner not appearing at the execution of the deed must be presented; because these conditions have not been complied with, for, although the deed of Aug. 3, 1903, is attached, which was executed before Notary Gabriel Guerra, wherein Juliana Merced waives all the rights she may have under the said stipnlation, in favor of.her children, leaving them free to sell the land acquired whenever they may deem proper so to do, that waiver refers to the lands in the barrio of Guaninabo of Bayamón, and not to those in the barrio of “Los Frailes” in Bio Piedras; because the representative of Bartolomé Cusso has not consented to that waiver, he being the one who established the condition, and finally, because Aurora and José Merced do not appear in the execution of the deed, who have the right of refusal; and the proper cautionary notices have been entered at folios 197 and 191 of vo’umes 17 and 7 of Bio Piedras, properties 974 and 353, entry letter A. No action is taken as to the consolidation of the property, because-it has not been requested. San Juan, P. B., December 18, 1906. The Begistrar, José Benedicto.”

Notice of this decision was served on Juan Mollfulleda on January 3, 1907, who stated that he took the documents for the proper purposes, it not appearing that he took any appeal from the decision.

By another deed executed in this city before said Notary Gabriel Guerra y Acosta, on July 19, 1906, Juan Mollfulleda, as the attorney in fact of Pedro Cusso y Mollfulleda and of Teresa Mollfulleda y Chas, the former as the heir and the latter as the widow and usufructary heir of the deceased Bartolomé Cusso y Salada, who died in the city of Barcelona in Spain, ratified and approved the deeds of sale of December 13, 1897, of which mention has been made, and the said deed having been presented at the registry of property of this city for record on April 26, 1905, record of which had been denied, the registrar again refused to record the same for the reasons set forth in the decision entered at the end of the document, which decision reads as follows:

“The admission of the deed of sale to Antonio Vega Chic-lana in the foregoing document is denied because, although the necessary documents have been presented in this registry to cure the defects with respect to the absence of consent of the representative of Bartolomé Cnsso to the waiver of Juliana Merced, the other defects mentioned in the former decision denying admission of the deed to record still exist, and no cautionary notice is entered because it is not proper in this case, inasmuch as thé defects which caused the entry of the other cautionary notice have not been in all respects removed. San Juan, Porto Rico, May 25, 1908. The Assistant Registrar, Rafael Tirado Verrier.”

Prom this dicision an appeal was taken in the name of Antonio Vega Chiclana praying for the reversal thereof, and that the registrar be required to enter the record of the said deed of April 26, 1905.

Aurora and José Merced y Aquino not having appeared at the execution of the deed in question, nor in any other subsequent deed, to waive the right of refusal granted them under the fourth clause of the first deed of December 11, 1897, executed by Matilde Vega y Merced and Julio and Dionisio of the same surname, in favor of Antonio Vega y Chiclana, the defect mentioned by the registrar in his decision of December 18, 1906, still exists, and Mollfulleda was notified thereof on January 3 following, and took no appeal therefrom, wherefore the said decision was consented to and became res judicata.

The decision of the assistant registrar of property of this city, entered May 25 last, refusing to enter the record sought, is hereby affirmed, and the documents presented are ordered to be returned to the registrar, together with a certified copy of this decision for. his information, and that of the parties in interest, and for the other proper purposes.

Affirmed.

Justices Hernández, Pignoras, MacLeary and Wolf concurred.  