
    Molina v. Viuda de Martinez & Co. Et Al.
    Appeal in cassation from a judgment rendered by the District Court of Arecibo.
    No. 28.
    Decided March 2, 1903.
    Intervention of ownership. — The trial court found that a certain contract of sale of real property, executed by the plaintiff and one of the defendants in this case, had been executed to defraud the other defendant,’ and held that subh deed of sale was null and void. Held: That in order to sustain the alleged error of fact in the consideration of the evidence, it is necessary under paragraph 7 of Article 1690 of the Law of Civil Procedure to establish by documents or authentic acts showing the evident error of the judge, that the debt sought to be recovered had been contracted-subsequently to th'e deed of sale; that a consideration had really been paid by the vendee to the vendor; that the latter had retained sufficient property to cover said debt, and that the vendee was not aware that such liability existed.
    Evidence. — Documentary and oral. — Confessions.—Where the trial court has given to documents introduced at the trial the scope and meaning thereof provided by law, and has given due weight to the evidence of confession and has weighed the force of the declarations of witnesses according to the rules of sound judgment, no error has been committed.
    Nullity oe an act or contract. — The legal doctrine that actions or exceptions based on the nullity of an act or obligation or a public document cannot be duly prosecuted unless the declaration of such nullity has been previously sought and obtained, is applicable where defendants pray that the complaint be dismissed and the deed of sale upon which it was based be declared null and void.
    Id. — A judgment declaring null and void a deed of purchase, not because of a defect of form, but because of an inherent defect which invalidates the contract contained therein, implicitly declares the nullity of the contract referred to in such deed.
    STATEMENT OE THE CASE.
    In a civil action prosecuted in the Municipal Court of dales by the .firm Viuda de Martinez & Co. against Don Julián Molina Olivero for the recovery of one hundred and fifty-five dollars and fifty-two cents, the said court rendered judgment in favor of the defendant, which judgment was reversed by a decision of the District Court of -Arecibo on the 12th of July, 1901, requiring the said Molina Olivero to pay the amount sued for, and all the costs of the proceeding, and for the purposes of the execution of the said judgment an attachment was levied on property of the said Molina Olivero consisting of thirty cuerdas of land situated in the ward of “Pezas”, in the said town, equivalent to eleven hectares, seventy-nine ares and twelve centares, bounded on the east by lands belonging to Simplicia Nieves, Fernando Silva, formerly Francisco Serrano and now Yiuda de Martinez & Co, and the Succession of Ramón Rivera; on the north by lands belonging to the said Succession, and on the south and west by lands belonging to Julián Molina; there being situated on the said land a one-story dwelling house with a shingle roof, constructed of native lumber, and measuring seven meters in front by six meters in depth; a warehouse built of native lumber covered with a roof built of straw and palm branches; and another house built of native lumber covered with a galvanized iron roof, used as a store. By public deed executedin the town ofOialeson the 17th of March 1901, and ratified by a subsequent deed dated the 3rd of the following month of April, Don Julián Molina Olivero sold to his son, Don Juan Molina Morales, seven parcels of land among which there was one consisting of six cuerdas, equivalent to two hectares, thirty-five ares and eighty-two centares valued at two hundred pesos; another parcel consisting of seventy-five one hundredths of a cuerda, equivalent to twenty-nine ares and forty-eight centares, upon which there was situated a frame house, and a warehouse roofed with straw, all valued at four hundred pesos; another parcel of land consisting of twenty-two cuerdas, equivalent to eight hectares, seventy-four ares, and sixty-two centares, two houses being situated thereon, one used as a store and the other for machinery, all valued at one thousand pesos; another parcel of land consisting of ten cuerdas, equivalent to three hectares, ninety-three ares and three centares, valued at four hundred pesos; which four parcels of land are situated in the ward of Pezas, municipal jurisdiction of Ciales, and are all included, in one tract consisting of thirty-eight and seventy-five one hundredths of a cuerda for the sum of four thous- and five hundred pesos, and of which amount the vendor acknowledged to have received the sum of four thousand one hundred and twenty-five pesos, the purchaser retaining the balance of three hundred and seventy-five pesos for the payment of a debt amounting to that sum owing by the vendor to the Banco Español de Puerto Rico. Julián Molina Morales filed a complaint in intervention in the said Arecibo Court under date .of August 13, 1901, against the firm of Viuda de Martinez <fc Co., and Don Julián Molina Olivero, alleging in addition to the facts herein-before set out, that the thirty cuerdas of land on which attachment had been levied, was his legitimate property acquired by virtue of a purchase thereof from Don Julián Molina Olivero, together with other lands, by the aforesaid public deeds which were attached to the complaint, said lands comprising a tract of thirty-eight and seventy-five one hundredths of a cuerda, which is formed by the four parcels of land hereinbefore described and he invoked articles 348 and 349 of the Civil Code, and articles 459, paragraph 2, and 1530 and 1533 of the Law of Civil Procedure, and concluded the complaint by praying the court to render judgment declaring him to be the exclusive owner of the property which was the object of the complaint in intervention and that the attachment levied on the same by Viuda de Martinez & Co., be dissolved with the costs against the defendant, or defendants, contesting his complaint. rPhe mercantile firm Viuda de Martinez & Go., contested the action alleging that Don Julián Molina Oli-vero on conveying to his son, Don Juan Molina Morales, the lands referred to in the deeds filed with the complaint, did not retain in his possession sufficient property to pay the debt claimed; that the said Molina Morales could not purchase the said lands from his father because he did not have the means wherewith to support himself, and therefore he could not have sufficient means to consummate a transaction of such a nature, and that Molina Olivero had disposed of the property solely for the purpose of avoiding the payment of the debt which he owed to Viuda de Martinez & Co. The said defendant cited as authority, chapters 2, 5 and 6 of title 2, book 4 of the Civil Code in support of his contention for the rescission and annulment of the contract of purchase and sale, because the consideration for the said contract was not lawful, and also cited General Order of the 6th of March, 1899, according to the provisions of which the said contract is simulated because it appears that the transaction was made between father and son, without the notary, before Avhom .the instrument was executed, having certified to the delivery of the purchase price, and because the debtor failed to retain in his possession sufficient property to guarantee the payment of the amount which he owed to Viuda de Martinez & Co. The said defendant prayed the court to dismiss the complaint in intervention, and declare the sale of the property made by Don Julián Molina Olivero to his son Molina Morales, null and void, and order the cancellation in the-Registry of Property, of the inscription of the realty in favor of Molina Morales, which was made to the prejudice of the interests of the mercantile firm Viuda de Martinez & Co., and tax the costs against the plaintiff. Don Julián Molina Olivero did not appear to answer the complaint, and was therefore declared to be in default, and the trial was proceeded with in his absence and default. Don Juan Molina Morales-produced as documentary evidence the title deeds to the property which were attached to the complaint, and the certificate of the attachment levied upon the lands which are the object of the complaint in intervention. He also introduced expert testimony to show that the four parcels of land which, according to the complaint, composed the thirty-eight and seventy-five one hundredths of a cuerda, only contained thirty-two cuerdas-, according to a survey made, this tract being the same that was attached as thirty cuerdas-, and haying the same boundaries as those stated in the order of attachment; testimony of the witnesses Don José Pilar Santiago, Don Rogelio Archilla, Don Narciso Saez, and Don Salvador Mufiiz, who testified that Molina Morales has worked as a merchant and agriculturist, that he has traded in livestock, and they believing therefore that he possessed capital. The mercantile firm Viuda de Martinez & Co., produced, among other evidence, the following: First, — -a certificate issued on the 16th of November, 1901, by the Mayor •and Municipal Secretar}*- of the town of dales, from which it appears that in the tax assessments from the fiscal year 1895-96 up to the fiscal year 1900-01 Don Juan Molina Morales did not appear as a direct tax payer on real estate or on any other property. Second, — another certificate issued • on the 4th day of the aforesaid month of November by the officer in charge of the collection of taxes in the town of Ciales from which it appears that in a proceeding prosecuted against Don Juan Molina Olivero for the collection of taxes for the years 1898-99 and 1900-01, he stated on the 19th of August of the said year, that he did not' possess any money or personal property, but requested that an attachment be levied on a portion of his coffee crop, which was done, he being made the custodian of the crop. Third,— a statement of an account of advances made to Don Julián Molina by Viuda de Martinez & Co., beginning on the 26th of March, 1900, and closed on the 20th of April of the following year, showing a balance in favor of the said firm amounting to one hundred fifty-five dollars and fifty-two cents. Fourth, — several letters addressed to Don Eduardo Barreras by Don Julián Molina, conferring authority upon his son, Don Juan, and asking for provisions and money, which said letters agree with the account of advancements made, and introduced in evidence. Fifth, — confession of Don Julián Molina Morales and Don Julián Molina Olivero, who acknowledged the letters referred to, the former adding that he did not pay taxes because he was exempt by reason of his profession. Sixth, — an examination of the witnesses, Don Manuel Molina, Don Ramón Morales and .Don Eusebio Serrano, the' first of whom testified that Don Juan Molina lived at the expense of his father, and that he has seen him trading in a small store during the four of five months of the harvest; the second, that Don Julián Molina supported his son, although he has seen Don Juan trading in live stock and at a small store, he not being aware whether he consummated these transactions with his own money or with that of his father, and the third, that Don Julián Molina lived in a house with Don Juan, and that he has known.the latter as a trader in live stock and coffee. The District Court of Arecibo rendered judgment on the 19th of February of the year last past, dismissing the complaint in intervention filed by Don Juan Molina Morales, and declaring null and void the deed of purchase and sale of real estate, executed in Ciales before the Notary Don Santiago R. Palmer on the 17th of March, 1901 and ratified on the 31st of the same month, by Don Julián Molina and Don Juan Molina Morales, because the same was simulated, and ordering that the attachment levied on the property of Molina Olivero should continue in force and effect, and that the inscription of the deed referred to in the Registry of Property should be cancelled, with costs against the plaintiff in intervention. From this judgment Don Juan Molina Morales took an appeal in cas-sation for error of law, provided for by paragraphs 1, 2, 4 and 7 of article 1690 of the Law of Civil Procedure, alleging the following grounds of appeal:
    I. — Error of fact in the consideration of evidence, since in an authentic document attached to the record, it is stated that on the 19th of August, 1901, Don Julián Molina was summoned for the purpose of requiring him to pay his taxes, to which he replied that having no money or personal property, he requested that a part of his coffee crop should be attached, which was so done, and from which it is inferred that on the said date he still retained in his possession real estate which produced crops, and notwithstanding this it is set out in the judgment appealed from that Don Julián Molina in selling to his,son Don Juan on a prior date the rural properties involved in this litigation, disposed of all of his property.
    II. — Error of fact in weighing the evidence, it being stated in the judgment that the sale made on the 17th of March, 1901, took place on a date subsequent to the obligation contracted by the vendor to “Viuda de Martinez & Co.”, when from the complaint it is only inferred that Molina Olivero was adjudged in the second instance on the 22nd of July of the year aforesaid to make payment to “Viuda de Martinez & Co.”, it not being stated either in the complaint or 'in the authentic certificate of attachment on what date the debt was contracted, and the judgment was rendered in the first instance, nor has the account current introduced in evidence, and which was closed on the 20th of April, 1901, that is to say, on a date subsequent to that of the sale, been acknowledged by the debtor or the purchaser by means of comparison with the books of the house which introduced the same in evidence, nor has Molina Olivero acknowledged the debt, since the letters which he acknowledged to have addressed to Don Eduardo Barreras, who is not shown to have been the managing partner of “Viuda de Martinez & Co.”, do not imply an acknowledgment of the validity of the said account.
    III. — Error of fact in the consideration of evidence, in stating that it appears in the certificate issued by the tax collector of Cíales on the 4th of November, 1901, that Don Julián Molina did not possess suficient property to pay the back taxes on his land, and that an attachment for the collection of said taxes was levied on the crop produced on the said lands, conveyed in the months of March to Don Juan Molina Morales, when from that certificate it only.appears that on the 17th of August of the aforesaid year, twenty-fours hours were given to Mr. Molina Olivero to present his tax receipts under penalty of an attachment of his real estate, and that being required on the 19th of the said month of August to present the said receipts; he stated that having no money nor personal property upon which he could realize, he requested that an attachment be levied on a portion of his coffee crop, which was done, the said certificate therefore showing that Molina Olivero, far from not having retained in his possession sufficient property with which to satisfy all of his creditors, retained rural properties which are not mentioned in the said certificate and which do not appear to have been sold to Molina Morales.
    IV. — Error of fact in the consideration of evidence, inasmuch as from the foregoing facts, it is as clear as the noon-day sun that the trial court should not have held, as it has done in the judgment appealed from, that Molina Olivero did not retain sufficient property in his possession, after the contract involved in this litigation, to meet his obligations.
    V.' — Error of law in the consideration of evidence in not accepting, without indulging in suppositions and enlargements not justified by tlie record, the literal language of the public deed executed on the 17th of March, 1901, inasmuch as from the evidence introduced on the trial, it should not be inferred that Molina Olivero sold all his property to Molina Morales, but the contrary is clear, as has been shown, — article 1218 of the Civil Code having thus been violated.
    VI. — Error of law in the consideration of evidence, in that the trial court did not hold that the date on which the debt was contracted between “Viuda de Martinez & Co.” and Molina Olivero was not shown either by the facts set out in the complaint, the certificate of attachment, or the confession made by Molina Olivero, thus violating articles 1218 and 1232 of the Civil Code.
    VII. — Error of law in the consideration of evidence, in that the trial court disregarded the testimony of the witnesses introduced by both parties who stated that Molina Morales lived from the result of his frequent business transactions, suppossing that he had sufficient capital to have consummated the transaction of which this litigation is the outcome, and therefore the legal doctrine established by various judgments of the Supreme Court of Spain has been violated and among them the judgments of July 2nd, 1883 and 16th of January 1891, to the effect that the unimpeached testimony of witnesses-should be given credence when not contradicted by other evidence of greater value; and articles 1248 of the Civil Code and 658 of the Law of Civil Procedure have also been violated. It cannot be alleged in opposition, that according to the certificate attached to the record, Molina Morales did not pay taxes on any kind of property, since aside from the fact that the said certificate only covers the fiscal year 1900-1901, and therefore until June 1901, Molina Morales could not have declared as his the lands which he bought, the fact that he paid no taxes on them does not show that they were not his property, since it has not been shown that any one else paid such taxes, and moreover there are many persons who possess real estate and pay no taxes thereon by keeping secret the fact that they possess such property.
    VIII. — Error of Law in the consideration of evidence, in that the court did not consider as a whole the evidence which was introduced, from which evidence so considered the statements made by the trial court, taken as a basis for its judgment, are in no wise supported, this constituting a violation of the legal principle that all of the evidence should be considered together, according to the jurisprudence established by the Supreme Court of Spain in its judgments of the 31st of December 1883, 25th of February, 18th of April, 31st of March and 1st of July 1884, 5th of May and 28th of October 1885, 27th of January and 22nd of September 1888, 6th of February and 17th of April 1889, 9th of June 1890, 28th of December 1891, 18th of January 1892 and 28th of January 1893.
    
      IX. — Violation of the legal principle adore non probante reus est absol-vendus, applicable, contrario sensu, to a defendant, who like “Viuda de Martinez & Co.”, does not prove his exception in accordance with the doctrine announced by the Supreme Court of Spain in its judgments of the 21st of December 1882 and 18th of April 1884, as also the judgment of this-Supreme Court of the 2nd of March 1899.
    X. — Violation of articles 1, 2 and 3 of the Judicial Order of the 6th of March, explained by the Judicial Order of the 20th of the same month,. 1899, and the doctrine explaining said articles announced by this Supreme Court in its judgment of the 2nd of March 1900, according to which simulation and fraud are not presumed except in those cases provided for by articles 1111, 1292 and 1297 of the Civil Code, this being shown by the aforesaid Judicial Order, which requires proof of simulation, and of the fact that a debtor has not retained in his possession sufficient property to secure the payment of his debts, which points have not been proved by the firm “Viuda de Martinez & Co.”
    XI.- — -Violation of articles 1261 and 1275 of the Civil Code, because “Viuda de Martinez & Co.” having failed to prove that there was no consideration for the sale made by Molina Olivero to Molina Morales, or that such consideration was illegal, the deed in which the said agreement is set out has been declared null and void, the trial court basing its decision on the aforesaid articles.
    XII. — Violation of the doctrine that actions or “exceptions” (demurrers) based on the nullity of an act or an obligation, or (on the nullity of) a public instrument, cannot be successfully prosecuted until the annulment thereof has been demanded or a declaration of such nullity has been obtained. This doctrine was announced by the Supreme Court of Spain, among other-judgments, in that of the 28th of October, 1867, which has been violated by the trial court in sustaining the exception of nullity of the contract involved in this litigation, alleged by the defendant as the basis.for his answer to the complaint, without such declaration having been previously obtained.
    XIII. — That the judgments are inconsistent with the demands of the defendant, since in the prayer contained in the answer to the complaint, defendant asks that the complaint in intervention be dismissed; that the sale made of the property by Molina Olivero to Molina Morales, be declared null and void, and that the inscription thereof in the Registry of Property be ordered cancelled, while in the judgment the complaint in intervention is dismissed, the deed of purchase and sale conveying the said properties is declared null and void, and the inscription thereof in the Registry of Property is ordered to be cancelled; it being therefore clear that the judgment differs substantially from the petition of the,defendant, since a contract is one thing and the deed in which the contract is set out, is another. The nullity of the instrument does not involve tlie nullity of the contract, and the annulment of the contract carries with it the nullity of the instrument, the court having therefore violated the legal doctrine announced by the judgments of the Supreme Court of Madrid dated the 18th of March, 1859, the 13th of January and 22nd of December, 1860, 16th of January, 1862, 13th of February, 1865, 23rd of February, 1867, 13th of June, 1869, 7th of July, 1875, 16th of March, 1876, 3rd of May, 1884, 21st of April, 1887 and 9th of April,- 1890, which held that judgments must be consistent with the claims duly set up in the case, and must decide all of the points in dispute.
    XIV. — Violation of the jurisprudence of the Supreme Court of Madrid, established in its judgment of the 23rd of February, 1874, according to which, judgments whose different provisions are conflicting and impossible of compliance, are null and void. This principle is applicable to the judgment appealed from, because inasmuch as it is not drafted with that precision required by the jurisprudence cited in the foregoing ground of appeal it manifestly violates the same, it being contradictory of its own provisions since it dismisses the complaint in intervention without annulling the contract by which the ownership was acquired”.
    
      Messrs. Diaz and Lopez Landrón, for appellant,
    
      Mr. Alvarez Nava, for respondent.
    The other party respondent made no appearance.
   Me. Justice MaoLeaey,

after stating the foregoing facts, delivered the following opinion of the court:

The trial court on considering together all of the evidence, consisting of documentary evidence, the testimony of witnesses and the evidence of confession, introduced by the parties at the trial, held that the contract of purchase and sale of real estate, executed in Ciales on the 17th of March, 1901, before the Notary Santiago R. Palmer, and subsequently ratified in this city on the 3rd of April following, by Don Juan Molina Morales and his father Don Julián Molina Olivero, was simulated and in fraud of the mercantile firm, “Viuda de Martinez & Co.”, and in consequence thereof declared null and void the public deed in which the said contract is set out, and which serves as a basis for this complaint in intervention, dismissing the said complaint in intervention and ordering the cancellation of the record of the said deed in the Registry of Property. In order to sustain the allegation that the said trial court committed errors of fact in its consideration of the evidence, it would be necessary to prove by documents or authentic pleadings showing the evident error of the judge, that the debt sought to be collected by “Viuda de Martinez & Co.” was contracted on a date subsequent to the execution of the deed of sale by Julián Molina Olivero and Juan Molina Morales; that the purchase price was really delivered by the purchaser to the vendor; that the said vendor retained in his possession sufficient property to satisfy the said debt; and that Molina Morales had no knowledge of the existence of the said debt; which facts have not been proved by the authentic means required by paragraph 7 of article 1090 of the Law of Civil Procedure, when an appeal in cassation is based on error of fact in the consideration of evidence. On the contrary, it was shown on the trial that nearly all of the items constituting the debt owing to “Viuda de Martinez <& Co.” were contracted prior to the execution of the aforesaid deed of sale; that the receipt of the purchase price was acknowledged by the vendor without a notary having certified to the delivery of the money, and that the said vendor did not retain in his possession suficient property to satisfy the debt contracted and owing to “Viuda de Martinez & Co.”, of the existence of which debt the plaintiff in intervention had knowledge, because he signed in the name of his father the orders which have been introduced in evidence, and which have been duly acknowledged; for all of which reasons the errors alleged by the appellant to have been committed, cannot be sustained. Nor have errors of law been committed in the consideration of the evidence, in violation of articles 1218 and 1232 of the old Civil Code, nor in violation of the jurisprudence of the Supreme Court of Spain, which have been invoked, inasmuch as the Arecibo Court has given to the documents introduced at the trial the scope and meaning therefor provided by law, and has also given due weight to the evidence of confession and has placed upon the testimony of the witnesses, the probatory value to which it is entitled “according to rules of sound judgment’’, as provided by article 658 of the Law of Civil Procedure. Although the court below has denied the legal value of the deed upon which the complaint in intervention is based, it was because such denial became necessary, in view of the various elements constituting the evidence, which left no doubt as to the simulation of the contract contained in the said deed. The allegation of violation of law claimed to have been committed in consequence of the errors of fact and of law into which the trial court is alleged to have fallen in its consideration of the evidence, cannot be sustained, because the court did not err in its consideration of the evidence; and with respect to the alleged violation of the legal doctrine that actions or “exceptions”, based on the nullity of an act or of an obligation or on the nullity of a public instrument, cannot be successfully prosecuted, unless a declaration of the nullity thereof has been previously demanded and obtained, such doctrine has been applied in the case at bar, inasmuch as the firm “Viuda de Martinez & Co.” in requesting that the complaint in intervention be dismissed, also prayed that the sale of the property which was the basis for the action should be declared null and void. The judgment appealed from is consistent with the pleadings of defendant, inasmuch as in holding that the deed of purchase and sale is null and void, not on account of any extrinsic defect of form, but on account of a fundamental defect which invalidates the contract therein set out, it is clear that it implicitly declared the contract null and void, as had been requested by the firm “ Viuda de Martinez & Co.”; nor, does the said judgment contain any conflicting conclusions ■ as will be seen by a perusal of that portion thereof in which disposition is made of the case. In accordance with the foregoing views, none of the grounds upon which the appeal is based can be sustained. We adjudge that we should declare, and do declare, that the appeal in cassation taken by Don Juan Molina Morales does not lie, and tax the ■costs against appellant. This judgment will be communicated to the District Court of Arecibo, and the record returned to the said court, for compliance therewith.

Mr. Chief Justice Quiñones and Associate Justices Her-nández, Figueras and Sulzbacher concurred in the foregoing opinion and judgment.  