
    Aranzamendi et al. v. Loubriel et al.
    Appeal from the District Court of San Juan.
    No. 28
    Decided January 11, 1904.
    Heirs —Assignment ob Transit® of Bights. — Heirs eannot assign or transfer greater rights than those whieh pertain to their predecessor in interest.
    
      Id. — Capacity.—Heirs cannot make any assignment or transfer of rights without previously establishing their capacity as such either by means of a will or judicial declaration in which they are recognized as such.
    Id. — Ownership ■ — Rights op Predecessors in Interest. — It is first necessary in judicial proceedings instituted for the purpose of proving ownership by virtue of an inheritance, to establish the ownership of the predecessor in interest.
    Id. — Rights of Co-Heirs. — It is impossible to declare the ownership of property in judicial proceedings instituted on behalf of specified heirs and not in the name of the succession, or to order the same to be recorded in their name, when the existence of other heirs appears from the record, the rights and actions of whom have not been represented in the proceedings.
    Id. — Insufficiency of the Evidence. — If the evidence presented in a judicial proceeding concerning the ownership of property is insufficient to establish the same in favor of the petitioners, and it is not proven that it was acquired by prescription, or by any other means, the proceedings must be dismissed.
    Costs. — Costs will be imposed upon the party whose demands have been wholly rejected, but if the petitions of both parties absolutely fail to succeed, each of said parties will pay the costs occasioned at his instance.
    STATEMENT OE THE CASE.
    These are proceedings instituted in the District Court of San Jnan, at the instance of Alfredo Solomon and José Asen-sio Smith, as the representatives of their respective wives, Carmen and Escolástica Aranzamendi, and continued on the death of the latter by her children Isabel, Estela, Alberto and Alfredo, represented by their legitimate father Alfredo Solomon, in the matter of a declaration of ownership over two rural estates and an incidental issue raised in opposition thereto by Jesús Lonbriel and others; which case is pending’ before ns in cassation for error of law, now ordinary appeal, taken by the representatives of both parties from the •judgment rendered by the aforesaid district court, on January 28, 1902, which held that the opposition made to the declaration of ownership applied for by the petitioners Alfredo Solomon and José Asensio Smith in representation of their respective wives, Escolástica and Carmen de Aranza-mendi, was properly raised and by virtue thereof adjudged that Jesús Lonbriel Rosa, Pedro Sayans and his wife Rosario López, and Carmen Aguilar y Santaella de Feliú, on behalf of her children Agustín and Maria Seculina Feliú y Aguilar, were respectively the owners of the houses described in said judgment, the proceedings to obtain dominion title to the lands claimed with said estates being dismissed, and no declaration being made with regard to Antonio B. Calmares, for the reason that he had desisted from his opposition, it. being stated that his property did not lie within the estates claimed, with no special imposition of costs, and it being directed that as soon as this judgment became final the fact be reported so that the proper orders might be made with respect to the other parcels of land not included in the opposition.
    On January 10, 1900, Attorney Antonio Sarmiento, on behalf of Alfredo, Solomon and José Asensio Smith, representing their respective wives, Escolástica and Carmen Aranza-mendi, filed in the now abolished Court of First Instance of the Cathedral district of this city, a petition, offering evidence to establish their ownership of two parcels of land situated in the Cataño ward, of the municipal district of Bayamón, and stating that José Lucas de Aranzamendi y Elzaburu had been the owner of said parcels of land, and had acquired the same in the drawing of lots which had taken place October 15, 1861, among the shareholders of the defunct “Compañía de Vapores de Puerto Rico,” and that they formed part of the total area of land belonging to said company, which had acquired it from Ana María Dávila by deed of January 14, 1851, ratified by her heir, the Rev. Mariano Dávila, in another deed dated February 11, 1892; that José Lucas de Aranzamendi, having died on January 16, 1868, the petitioner herein, Carmen, and her brothers Alberto and Genaro, were declared intestate heirs, the last mentioned being succeeded by Ms daughter Escolás-tica, the other party appearing, as shown by the certificate accompanying the petition, that Alberto died on the 6th of April, 1888, leaving as heir Ms wife Matilde Larringa, who also died in the year 1894, without succession; and that as they had no recordable title to the aforesaid parcels of land, because the one held and presented by them bore a memorandum refusing its admission to record, they instituted the proceedings to establish the ownership of real estate authorized by article 395 of the Mortgage Law and section 6 of the Judicial Order of April 4, 1899, offering proof of their rights, and concluding with the prayer that, after hearing the Department of Justice, the judicial inquiry be allowed, with citation of the owners of the adjoining estates and issue of a call for a period of sixty natural days for the unknown persons whom the desired record might prejudice, and that in due course the ownership of the parcels described be declared to have been proven, and the proper record ordered to be made in the Registry of Property of this city, in conformity with an attested copy of tbe order approving the judicial inquiry applied for.
    Together with the aforesaid petition, counsel for the petitioners filed a certified copy of the order of the same Court of First Instance of the Cathedral district, rendered February 3, 1899, whereby the heirs of Lucas de Aranza-mendi, deceased, are hereby declared to be his legitimate daughter Carmen and his grand-daughter Escolástica of the same surname, the latter representing her deceased father Genero Aranzamendi, and another certified copy of the declaration made by José Ramón Fernández and Manuel García by public document executed before Notary Manuel Camuñas of this city, April 12, 1862, wherein is inserted verbatim the report of the meeting held by the shareholders of the defunct “Compañía de Vapores de Puerto Rico,” on the 15th of October, 1861, from -which it appears that various shareholders of said company, having met on that day at the house of Messrs. Sobrinos de Ezquiaga, for the purpose of deciding upon the manner of distributing the lands owned by the aforesaid company .in the Cataño ward and other property belonging to them, which were still pending distribution, it was unanimously agreed that said lands should be divided into as many parcels as there were shares representing the company’s assets, the same to be distributed by casting lots among the shareholders, assigning to each as many parcels as shares were held by him, which drawing having taken place, the parcels numbered 14 and 22, according to the general plan of the lands, prepared for the purpose and which had been approved by the meeting, had fallen to the partner José Lucas de Aranzamendi, the shareholders Messrs. Ramón Fernández and Manuel Garcia, being commissioned, with a copy of the aforesaid decision, to execute the proper deed in favor of each and every one of the shareholders, so as to better insure their title to the respective property thus acquired by them, which was done, stating in the deed that the parcels distributed aggregated two hundred and seventeen thousand square varas and formed part of the forty cuerdas of land acquired by the company through purchase from Ana María Davila, according to the promise to sell made by her, which had been duly recored in a public document executed on January 14, 1851, before the late Notary Eusebio. Núñez, and that by virtue- of said deed the aforesaid company conveyed to each of the shareholders its title of ownership over the parcels which had been respectively awarded to them as stated above.
    
      J At the end of the deed hereinbefore described there appears a memorandum of the Registrar of Property of this city, which reads as follows:
    “The record of the above document is refused with respect to parcels Nos. 14 and 22, the only ones whose entry has been applied for, because the description thereof is not given, for which reason it is impossible to ascertain whether or not they are recorded in the modern Registry; because while all the persons in whose favor parcels had been awarded appear to have formed part of the ‘Com-pañia de Yapores de Puerto Rico,’ not many of them were present at the meeting held October 15, 1861, in which the drawing of lots tool?: place, the record of said meeting not being signed by all of those who had attended the same; because the deeds of partnership, of promise of sale and of ratification of the latter, refer to the association designated as 'Compañía del Yapor de Cataño,’ and it is not shown that said company is the same as the one known as 'Compa-ñía de Yapores de Puerto Rico,’ referred to in the declaration concerning the distribution of the Cataño lands; because in the judicial order determining the heirs of José Lucas Aranzamendi no mention is made of his son Alberto who died subsequently thereto; and inasmuch as these defects do not appear to be capable of correction, the ■cautionary notice is not admissible; the record being withheld also for the furthei reason that Mariano Davila, grantor in the ratification deed, has failed to show his capacity as heir of his parents in which he appears, and because it is not shown that the aforesaid order determining the heirs to the estate had been executed. San Juan, Porto Rico, November 1, 1899. José Benedicto, Registrar.”
    The judicial inquiry applied for being admitted, and citations Raving been served upon adjoining property-holders, and a call for the unknown persons whom the desired record might prejudice having been published in the Official Gazette, Antonio Caimari y Candelario, Carolina ’ Gutiérrez, Pedro Sayans and Ms wife Rosario López, and Jesús Lou-briel y Rosa, appeared through their respective counsel in •opposition to the requested declaration of ownership, alleg-mg that they were respectively the owners of several houses and their lots, situated on the lands claimed by the petitioners, which houses and lots they had recorded in their favor in the Registry of Property, on the strength of the proper possessory judgments, said property having been acquired! by them through the titles and at the dates mentioned in the respective writings; setting forth, further, among other reasons in support of their right, that the petitioners not only-had no title of ownership in the two parcels of land the record whereof they desired, but had never been in possession of said property, nor could they show that they had paid any taxes thereon; while they, on the other hand, could establish, their title of ownership by means of the respective possessory-judgments, recorded in the Registry of Property, and by their uninterrupted and quiet possession thereof for a number of years sufficient for the purposes of ownership, under article 1957 of the Civil Code, according to which “ownership and other property rights in real property shall prescribe by possession for ten years as to persons present, and for twenty years with regard to those absent, in good faith and with a proper title.” They therefore prayed that the declaration of ownership, as requested by the petitioners herein, be dismissed with respect to the houses described and the lots on which they stood, with costs upon whomsoever might oppose their claim; said opposition being subsequently continued in substitution of Carolina Gutiérrez, by Carmen Aguilar y Santaella, to whom the former transferred her rights and actions to the house she claimed to own, in representation of her children Agustín and Maria Seculina Feliú y Aguilar.
    The proofs offered by the parties having been admitted, at the request of the petitioners for the judicial inquiry the following documents were submitted: A certified copy of the decision rendered by the abolished Court of First Instance of the Cathedral district, dated January 2,1900, wherein, in elucidation of the one rendered by said court on February 13, 1899, it declared that the legitimate son of Lucas de Aran-zamendi, Alberto, who had died on April 6, 1888, was also an heir to his father’s estate; another certified copy of the deed of November 7, 1849, having reference to the constitution of the limited copartnership styled “Compañía del Vapor de Cataño,” established in this city, with a capital of fifty thous- and pesos macuquinos, divided into five hundred shares of one hundred pesos each, for the purpose of facilitating, by means of steamboats, communication within the harbor of this city, that is to say, from the wharf to the Cataño shores, and with the other ports of the Island, the duration and other conditions whereof are specified in said document; another certified copy of the deed executed in this city before the Boyal and Military Court Notary, Eusebio Núñez, January 14, 1851, whereby Ana María Dávila declared that the board •of directors of the “Vapor de Cataño” company had resolved, at a session held June 3, 1850, to purchase forty cuerdas of land situated in Cataño, belonging to the grantor, at the rate of twenty pesos each, the cost of the survey to be •equally apportioned between the parties, while that of the deed of sale, drawn up in due form, would be for her account, she engaging to execute the same as soon as the testamentary proceedings of her husband Tomás Dávila y Quiñones had been concluded; that the aforesaid forty cuerdas of land had .already been measured by surveyor Saturnino Bivera, who had executed the proper certificate, which, together with the map also drawn by him, had been delivered to the purchasing company, which was in possession of tjie tract sold, according to formal delivery made by Felipe Dávila, as general attorney-in-fact' of the vendor, to Nicolás Viñas, commissioned by aforesaid board to receive the same; that she had received to her satisfaction the sum of eight hundred pesos macuqui-nos, in payment of the forty cuerdas, at the price of twenty pesos each, and engaged to execute the deed of sale in favor •of the board, with all the requisite formalities, without in-cumbrances or mortgages, as soon as the testamentary proceedings of her late husband had been completed and to the fulfillment of which undertaking she bound all her property.
    As evidence on behalf of the petitioners another certified copy was presented of the deed executed in this city before Notary Mauricio Guerra Mondragón y Mejia, February 11, 1892, by the Eev. Mariano Dávila y Dávila and Dolores Ta-foró é Irizarri, by which the former, in his capacity as sole and universal heir of his deceased parents, Tomás Dávila y-Quiñones and Ana María Dávila y Eivera, declared: That having been summoned by the said Dolores Taforó, as representative of the estate of her late husband, Manuel de la Cruz, another of the shareholders of the defunct “Sociedad del Vapor Cataño,” and in possession of parcels 3 and 8 which had been allotted to him at the above-mentioned drawing, to ratify the deed of promise to sell which his deceased mother, Ana María Dávila, had executed in favor of said company, with reference to the forty cuerdas of land in Ca-taño and to execute the one of sale which she had left unexe-cuted, said Mariano Dávila had duly ratified in all its parts the aforesaid promise to sell, and conveyed to the board of directors of the “Sociedad del Vapor de Cataño,” such title of ownership as might appertain to him as the sole heir of his parents, the aforesaid Tomás Dávila y Quiñones and Ana María Dávila.
    At the request of the petitioners the following documents' were also placed on'file: A certified copy of the nuncupative will executed by the aforesaid Ana María Dávila, in this city, before Notary Demetrio Giménez y Moreno, Angnst 21, 1867, by elanse 3 -whereof sbe declares that sbe bad been married to Tomás Dávila y Quiñones, by wbicb marriage sbe bad bad tbe following as ber legitimate children: Mariano, Anacleta, José Maria, Enperto, Justa, Eaimnndo, Josefa, Mannel and Tomás Dávila, of whom tbe only one then living was Mariano, all tbe ethers having died without issue; by clause 6 sbe bequeathed tbe net fifth of all her property to ber foster-child, Santiago Alberto Dávila, then a minor; and by clause 8 sbe instituted ber son, tbe aforesaid Mariano Dávila y Dávila, as sole and universal heir to all ber property, rights and actions ; a certificate issued by tbe clerk of tbe District Court of San Juan wherein it is stated that upon rendering tbe decision-of February 3,1899, determining tbe heirs of José Lucas de Aranzamendi, notice of said decision was served upon tbe parties concerned and upon the Fiscal, and as no appeal was taken against it, it was considered as having been acquiesced in, and became final; and another certificate from tbe civil registry of this city, attesting tbe death of Escolástica Aran-zamendi y Yillalón, wbicb occurred on August 2, 1901; and stating that at tbe date of ber death sbe was married to Alfredo Solomon, from wbicb marriage sbe bad four children respectively named Isabel, Estela, Alberto and Alfredo; and, lastly, tbe report of tbe Alcalde of Bayamón, F. Matbeu, from wbicb it appears that tbe municipal council of said town is not in tbe habit of granting or selling lands in Cataño for tbe purpose of converting them into lots, said corporation confining itself to granting permits for tbe construction of bouses in that locality, at tbe places described by tbe applicants in their respective petitions, but reserving tbe right of property and without prejudice to third parties.
    From tbe certificates of tbe secretary and Alcalde of Baya-món, submitted at the request of the opponents, it appears that the-names of Jesús Loubriel, Antonio Mauri, Carolina Gutié-rrez, Gabriel Chiessa and Eduardo and Rosario ■ López Ce-pero, stood on the register of taxpayers of said town during the years, for the property, and with the proportion of taxes, specified in said documents; not so José Asensio, Alfred -Solomon, Carmen Aranzamendi and Escolástica and José Lucas, of the same family name, who did not appear on the register of taxpayers of said town with any tax. whatever .on lands in barrio Cataño.
    At the oral trial the expert witness, Armando Morales, who had been appointed at the request of the petitioners, ratified his testimony with respect to the map he had presented and which was joined to the record, of the parcels of land which formed the subject-matter of the proposed judicial inquiry, and the witnesses for the opposition, namely Eduardo Martorell, Liborio Fuentes, Arturo Iglesias and Raimundo Rodriguez, testified that they had been for many years residents of the barrio of Cataño, and had never known the late José Lucas Aranzamendi or .his daughters Carmen and Escolástica as owners or possessors of lands in that neighborhood; that neither had they known there any settler or lessee of lands possessing in whole or in part the parcels claimed herein as their property by the Aranzamendi sisters, either in their name or in that of their deceased father, José Lucas; and that they had for many years known Jesús Lou-briel and Pedro Sayans and his wife Rosario López as owners and possessors of houses and lots in the town of Cataño, without ever having been disturbed in their quiet and uninterrupted possession by any claim or act of the Aranzamendi sisters, or of any other person in their name; and in reply to questions put by counsel for the petitioners herein, they stated that they did not know by virtue of what titles said persons had acquired possession; the witness Eduardo. Mar-torell adding that he acknowledged as his own the signature and rubric affixed to the document on folio 55 of the record, and the/ other witness, Rodriguez, that he is the owner of lands in C ataño by virtue of titles of ownership acquired from former owners, and that as a member of the municipal council he is an opponent in the proceedings to acquire possession instituted by J. Elzaburu; while Carmen Aranzamendi testified that she did not know whether or not her father, José Lucas, had been in possession of the two parcels of land, because she was very young when her father died, and as for herself, she had not taken possession thereof because she had moved to New York; that she could not say of her own knowledge whether or not taxes had been paid upon said parcels, she being under the impression that they were paid by her husband, and as regarded her father, she maintained what she had already testified; that as she did not know where the parcels were situated, she could not prevent the erection of buildings thereon; that she considered herself as having a right over said parcels, for which reason since she arrived from New York she had begun to take steps for the recovery thereof; and that she had hot reported them for assessment, because she was not in possession of said property.
    Upon the termination of the oral trial, the District Court of San Juan, on January 28, 1902, rendered judgment admitting the opposition offered to the proceedings to obtain dominion title instituted by Maria del Carmen and Escolástica Aranza-mendi, the latter having died, being substituted by her children Isabel, Estela, Alberto and Alfredo, represented by their father Alberto Solomon, and declaring accordingly that Jesús Loubriel Rosa, Pedro Sayans and his wife Rosario López, and Carmen Aguilar y Santaella de Feliú y Aguilar were respectively the owners of the houses described in said judgment; the proceedings to obtain dominion title with respect to said lands were dismissed; no declaration being made with regard to Antonio B. Caimari, he having desisted from his opposition because, as declared by Mm, be bad no property,within the limits of the parcels claimed; no special imposition of costs being made; and that after said judgment bad been made final, notice thereof should be given so that the necessary orders might be made with respect to the other parcels of land concerning which no opposition has been made.
    Prom this judgment the representatives of both parties took appeals in cassation for error of law, counsel for the petitioners basing their appeal on paragraphs 1, 2 and 7, of article 1690 of the Law of Civil Procedure, and citing as having been violated articles 1940, 1957 and 1973 of the Civil Code, and article 394, paragraph 5, of the.Mortgage Law; while counsel for the adverse parties, basing their appeal on paragraph 1 of article 1690 of the Law of Civil Procedure, cited as violated section 63 of General Order No. 118, inasmuch as the opposition to the proceedings to obtain dominion title having been admitted in all its parts, the court, pursuant to the definite provisions of said section, should have imposed all the costs upon the adverse parties who had rashly controverted said opposition. Said appeals leaving been allowed and the records having been transmitted to tMs court, and the parties having been cited and summoned, and they having appeared and the appeals interposed having been heard, the records were disposed of in the manner prescribed by the act of the Legislative Assembly of this Island converting this Supreme Court into a court of appeals, and in consequence thereof, the records having been again submitted for examination and having been returned, a day was set for the hearing, which was held with the attendance "and upon argument of the attorneys of the parties.
    
      Messrs. Sarmiento and Bosch, for petitioners.
    
      Mr. Torres Monge, for respondents.
   Mr. Chief Justice Quiñones,

after making the above statement of facts, delivered the opinion of the court, as follows:

Having considered the merits of the documents presented by the petitioners herein, Alfredo Solomon and José Asensio Smith, on behalf of their respective wives, Escolás-tica and Carmen Aranzamendi, and the proofs submitted by the opponents Jesús Loubriel, Pedro Sayans and wife, Rosario López and Carmen Aguilar, the ownership of the petitioners of the two parcels of land referred to in the record cannot be regarded as having been established, for in alleging that they had acquired them by inheritance from their deceased father, José Lucas de Aranzamendi, it was necessary for them to prove that he was the lawful owner thereof, which they have altogether failed to do, inasmuch as the defunct ■“Sociedad del Vapor de Catafio,” from which it is said the deceased Aranzamendi had obtained them, did not acquire the ownership of the lands in question, owing to the fact that María Davila had not transferred them to him by virtue of the deed of January 14, 1851, described by both contracting parties as simply a promise to sell, nor fulfilled the obligation .and undertaking she imposed upon herself in said document, to execute the deed of sale as- soon as the testamentary proceedings of her late husband, Tomás Dávila y Quinones, had been completed; nor has it been in any manner proven that said Ana Maria was the real owner of the lands in question, but, on the contrary, she having deferred the execution of the' deed of sale until the settlement of her late husband’s estate, it is logically to be inferred therefrom that she had no title •of ownership in said lands, and that she was awaiting the ■settlement of the testamentary proceedings in order to obtain such title, when she would be in a position to transfer the same, validly, to the “Empresa” or “Compañía del Vapor •de Catan ’ ’ with which she had beforehand for contracted the purchase and sale of aforesaid lands.

Nor does the deed executed in this city, February 11, 1892, by the Bev. Mariano Dávila, in his capacity as sole and universal heir of his deceased parents, Tomás Dávila y Quiñones and Ana María Dávila, in favor of the board of directors of the “Sociedad del Yapor de Cataño,” whereby, in ratification of the document signed by his mother, January 14,1851, promising to execute the deed of sale of the aforesaid forty cuerdas-oí land, he conveys and transfers such title thereto as may pertain to him as sole and universal heir of his deceased parents,, impart any additional strength and efficacy to the rights claimed by the petitioners herein, for even as heir of his mother, the aforesaid Ana María Dávila, he could not convey and' transfer to the “Empresa del Yapor de Cataño” greater rights than appertained to her, and it has not been shown that she had any at the time, nor does it appear that she afterwards acquired such rights as a result of the testamentary proceedings concerning her husband’s will, which does not seem to have been approved in any manner or form, nor could he convey and transfer the rights' appertaining to himself .over said lands as sole heir, as he claims to be, of his deceased father, Tomás Dávila y Quiñones, when not even his identity has been established by the will or judicial declaration which instituted him as such sole heir of his deceased father.

On the other hand, even waiving the defects in the titles of ownership presented by the petitioners, Carmen and Escolás-tica Aranzamendi, it is evident that, having instituted the proceedings in question in their own name, and not in the name of the succession of their, deceased father, José Lucas Aranzamendi, the ownership of the lands cannot be adjudges! in favor of the petitioners herein nor the same ordered to be recorded in their name in the Begistry of Property, when it appears from the record that there were three intestate heirs of José Lucas de Aranzamendi, namely, his daughter Carmen, his granddaughter Escolástica, in representation of her father, Genaro, also a son of the deceased José Lucas, and his other son Alberto, who died April 6, 1888, the legitimate representative or representatives of whose rights and titles as heirs of the deceased father,'José Lucas, are at present unknown.

The documents presented by the petitioners to establish the ownership of their respective wives, Escolástica and Carmen Aranzamendi, of the parcels of land mentioned herein, being, therefore, insufficient, and as on the other hand, it has not been proven-that they acquired them by prescription •or by any other title, since it has been fully shown that neither Escolástica nor Carmen Aranzamendi, nor their father, José Lucas de Aranzamendi, from whom they derived their right, had ever possessed the lands in question, either personally or through the mediation of any other person, the institution of proceedings to obtain dominion title commenced by Alberto Solomon and José Asensio Smith, in their respective representations herein, should, for all these reasons, be denied.

1 As to the opposition set up by Antonio B. Oaimari, Jesús Loubriel, Pedro Sayans, and his wife Rosaria López and Carmen Aguilar, the latter in representation of her infant chil■dren Agustín and María Seculina Feliú y Aguilar, although they have alleged as ground for their opposition that they are respectively the legitimate, possessors of several houses and lots, situated within the lands claimed by the petitioners, and that they possess the same in good faith and with just title, and have been in possession thereof for the time required by .article 1957 of the old Civil Code, for the acquisition of ownership of real estate by prescription, no decision with respect to said houses is called for, this matter being foreign to the proceedings instituted, inasmuch as the claim set up by the petitioners does not bear upon this issue; and the petition of the opponents in their respective writings with reference to the lots on which said houses stand being confined to asking that the application for a record be dismissed as regards said, lots, there is no occasion for making any special pronouncement thereon, inasmuch as the declaration of ownership of the two parcels of land requested by the petitioners herein, being refused, and consequently also the record thereof in the Eegistry of Property, the demand of the opponents with respect to the aforesaid lots is implicitly decided with the refusal of their record in the Eegistry, which was exactly what they requested in the prayer of their respective petitions.

Inasmuch as according to Eule 63 of General Order No. 118 the costs should be imposed upon the party whose demands are totally rejected, and in other cases the court shall render a decision agreeable to equity, it is logical to infer that, when the petitions of both parties ’absolutely fail to succeed, as happens in the present case, each of the said parties should pay the costs occasioned at his instance.

In consideration of articles 395 of the Mortgage Law of this Island, and articles 358 and 360 of the Law of Civil Procedure, we adjudge that we should deny and do deny the title of ownership applied for by Alfredo Solomon and José Asoncio Smith, as representatives of their respective wives, Escolástica and Carmen de Aranzamendi, and consequently the ownership of the two parcels of land referred to in the present proceeding should not be declared in their favor We likeyise declare that no pronouncement is called for with respect to the houses claimed by' the opponents herein, namely, Antonio B. Caimari, Jesús Loubriel, Pedro Sayans and Ms 'wife, Rosario López, and Carmen Aguilar, in representation of her minor cMldren; and as regards -the lots on wMch said Louse's stand, the decision rendered in tMs case with respect to the parcels of land claimed by the petitioners herein, shall be abided by, without special imposition of costs in either the lower-or the appellate courts; the judgment appealed from being affirmed where agreeable hereto, and reversed where not.

Justices Hernández and MacLeary concurred.

Mr. Justice Figueras did not sit at the hearing of tMs case, and Mr. Justice Sulzbacher did not take part in the decision.  