
    Rafael Pagán Esmoris, Appellant, v. The Registrar of Property of Mayagüez, Respondent.
    No. 1265.
    Submitted May 1, 1950.
    Decided May 31, 1950.
    
      
      José Sabater for appellant. The Registrar appeared by brief.
   Mr. Chief Justice De Jesús

delivered the opinion of the Court.

The appellant is the owner of an urban property, recorded n the Registry of Property of Mayagüez, and encumbered by a mortgage recorded since April 28, 1925 in favor of Jovita Esmoris Graña, an incapacitated person. The filing of a complaint to recover said mortgage or the existence of such lien has not been recorded in the registry.

Relying on § 388-B of the Mortgage Law the appellant requested the Registrar, pursuant to the last paragraph of the afore-mentioned Section, to cancel said lien, it the ■ absence of the above-mentioned circumstances and because more than twenty years have elapsed since its constitution.

Notwithstanding the clear language of the last paragraph of § 388-B, the Registrar refused the cancellation. H( maintains that in order to do so — even after the first yeai said Article is in force — it is necessary to notify the creditor for otherwise, she would be. deprived of her property without the due process of law.

Perhaps it might have been deprivation of property without due process of law if the Registrar had ordered th« cancellation of mortgages which were constituted twenty years prior to the effective date of the Act, without giving the creditor reasonable time for filing the complaint or foi proving the existence of the lien. Precisely in order to make the Act constitutional, the creditor was allowed the term oi one year, counted from the effectiveness of the Act, to comply with said requisite. In the present case when § 388-1 of the Mortgage Law was passed in 1923, the mortgagi sought to be canceled had not yet been constituted. Hence the mortgage creditor, upon constituting the mortgage, knew that it could be cancelled at the expiration of the twenty years pursuant to the last paragraph of § 338-B. Under these circumstances, it cannot be held that the creditor might be deprived of her property without due process of law, because she was not notified as is only required by the Act when the cancellation is sought before the lapse of one year since its approval.

The other ground for the note is that, according to § 40 of the Code of Civil Procedure, the limitation term does not run against the creditor because she is an incapacitated person. Again we do not agree with the Registrar. Article 388-B approved after § 40 of the Code of Civil Procedure, includes among its provisions the minors and incompetent and consequently, § 40 is not applicable to this special situation provided by the Act. The purpose of § 388-B of the Mortgage Law is to eliminate from the Registry those liens which because of the time elapsed since their constitution, should be assumed not to exist. Cf. Berio v. Registrar, 35 P.R.R. 398.

The note appealed from will be reversed and the mortgage cancelled. 
      
       Article 388-B of the Mortgage Law, as amended by Act No. 12 of August 29, 1923, Spec. Sess., p. 36, says in part:
      “Any natural or artificial person who is the owner of real estate incumbered by mortgage liens overdue for twenty (20) years or constituted for that time if they have no term, may file with the court of the district where such property, or the greater part thereof, is located, petition requesting the cancellation of said mortgage, and the judge f said court shall order the citation of the creditor to appear in said :ourt within ten (10) days, if it is served in the district, and within wenty (20) days, if outside the district but in the Island, and within orty (40) days, if outside of the Island, to show cause why said mortgage hould not be cancelled.
      
        “If on the expiration of said term the summoned creditor fails tc appear, his default shall be entered, and the court shall render judg ment cancelling the entry. Should said mortgage creditor appear t( oppose the aforesaid cancellation, then the proceedings shall become con tentious and shall be prosecuted according to the procedure establishec in the Code of 'Civil Procedure.
      “Summonses to creditor shall be served as follows:
      “If the suit is against a person under fourteen years of age residini in the island, on said minor personally, as well as on his father, mothei or guardian.
      “If the suit is against a person residing in the island and judicially declared insane or incapacitated to look after his own affairs, when i tutor has been appointed for such person, then on such person as wel .as on his tutor.
      “On the lapse of one year from the date on which this Act take: effect and on petition of the aforesaid interested parties, registrars shal cancel the mortgage referred to in this section, without need of any notice whatever, if the filing of suit to recover the same or the sub sistence of such liens is not shown in the registry.”
     
      
       Section 40 of the Code of Civil Procedure provides:
      “If a person entitled to bring an action, other than for the recovery of real property, be at the time the cause of action accrued, either:
      “1. Within the age of majority; or
      “2. Insane; or,
      ‘“3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life; or,
      “4. A married woman, and her husband be a necessary party with her in commencing such action.
      “The time of such disability is not a part of the time limited for the commencement of the action.”
     