
    Rivera v. Registrar of Property.
    Appeal from a decision of the Registrar of Property of San Juan.
    No. 2.
    Decided January 30th, 1900.
    Usufruct. — Defect capable of correction. — In order to obtain the inscription of a nsnfrnct in the Registry of Property, as in the case of any other right to real estate, an indispensable requisite is that the ownership of the realty shall have been previously recorded in the Registry, and the name of the person in whose favor such ownership is recorded must be set out in the title which is sought to be recorded, as also the title by virtue of which the right sought to be recorded may have been acquired; a failure to comply with these requirements, constitutes a defect which is capable o correction.
    Id. — Failure to describe the properties, and properly to separate the same, in order that they may be identified in the records of the Registry of Property, with the clearness and precision required by the Mortgage Law, also constitutes a defect capable of correction.
    The facts are set out in the opinion.
    
      Mr. López Landrón, for appellant.
   Mr. Chief Justice Quiñones

delivered the following opinión:

The hearing was had in the appeal taken by Rafael López Landrón Esq., in the name of José Dolores Rivera Claudio, representing his legitimate wife, María Justa García y Liza-rraga, from the refusal of the Registrar of Property of this City to record a judicial proceeding for dominion title, approved by the District Court of San Juan by order dated 21st of September last.

The facts set out in the aforesaid order of approval, show that José Dolores Rivera Claudio, representing his legitimate wife, Justa García Lizarraga, filed a writing setting up that Mrs. Dolores Lizarraga de Campanón devised in her will made in favor of the children of Juan Lazús García, and likewise in favor of appellant’s wife, fifty cuerdas of land situated in the ward of Sabana Llana, within the municipal jurisdiction of Río Piedras; that the said land, which is of the second class, equivalent to nineteen hectares, seventy-five ares and nineteen centares, aproximately, twenty-five ■cuerdas of which had been in possession of his wife by virtue of a purchase thereof from Ignacio and Romualdo García, children of Juan' Lazús, and the other twenty-five cuerdas had been held in usufruct for life, and on her death to pass into the hands of her legitimate children Carmen, Atilano, Providencia, Aurora, Simón and Rosendo Rivera y Garcia, born in wedlock with the applicant; that the said number of rnerdas form a single parcel of land, nearly all level, a part being somewhat broken, and used for the cultivation of minor products and natural pasture lands; that the said land was free from all incumbrances, being valued at approximately eight hundred pesos, provincial money, and being bounded on the north by lands belonging to Don Pedro Cervera and Don José Dolores López; on the south and west by lands belonging to Don Frutos Caloca, now his heirs; on the east by lands of the said Don Pedro Cervera, Don Pablo Figueroa and Don Celestino Trida; that there were situated on the tract of land above described three rustic houses, and it was added that as his said wife had been in possession of the land for more than twenty years, and had no efficient written title thereto, it was desired to record the fifty cuerdas of land, twenty-five under title of ownership and twenty-five under title of usufructuary ; offering the testimony of witnesses to prove the said facts.

The testimony of witnesses having been heard, and the proceeding having been duly prosecuted, the District Court made an order on the 21st of September last approving the proceedings and declaring that the lands in- question, and which had been described, belonged by virtue of ownership and usufruct, to Doña María Justa García y Lizarraga, wife of Don José Dolores Rivera Claudio, and providing that the .same be recorded in her favor in the Registry of Property, .and that a proper certificate théreof be issued to the interested party.

The said certificate having been issued and presented for .admission to record in the Registry of Property, the Registrar refused to record the same because, it being stated that Doña Justa García y Lizarraga was the usufructuary of twenty-five cuerdas of the fifty composing the tract, the acquisition thereof was not shown, nor was the ownership declared to be in the children Carmen, Atilano, Provi-dencia, Aurora, Simón and Rosendo Rivera y Garcia, the manner in which Mrs. Garcia might have acquired the usufruct not being stated; and because the said twenty-five cuerdas and the other parcel containing the same acreage of which she had the full ownership, were not separately described; and that the said defects not being capable of correction, a cautionary notice could not he entered.

From this refusal of the Registrar the attorney Don Rafael López Landrón has taken an appeal to the Chief Justice of this Court in the name of Don José Dolores Rivera Claudio, the latter representing his wife Doña María Justa García Li-zarraga, and a hearing having been'accorded the said Registrar and the District Court of San Juan, they have both concluded the same in the manner set out in their respective reports.

In order to record a usufruct, as any other right to real estate, an indispensable requisite is that the ownership thereof shall have been previously recorded; and it not appearing from the order approving the proceedings prosecuted by Don José Dolores Rivera Claudio in the name of his wife, Mrs-. María Justa García, to whom the twenty-five cuerdas of land belong, of which it is said she is the usufruc-tuary, nor the title by virtue of which the same may have been acquired, it is impossible to record the usufruct of the ■said twenty-five cuerdas of land in favor of Doña Justa Gar-cía, as sought by the applicant.

Although in the approbatory order herein referred to, the fifty cuerdas of land are described, of which the appellant states twenty-five are held by virtue of the ownership thereof vested in his wife, and the other twenty-five in usufruct, these two parcels are not described separately, as is necessary in order that each one of them may be identified in the Registry of Property with that clearness and precision required hy Article 9 of the Mortgage Law.

In view of the nature of the defects which prevent the inscription of the order approving t.he proceedings for dominion title in question, they should not be characterized as incapable of correction, since the defects contained in the said title may be effectively corrected by the trial Court, on the application of the party in interest.

In view of the provisions of articles 9, 20 and 65 of the Mortgage Law and the decisions of the General Directorate of Registries of the 22nd of July, 1874, 18th of August, 1887, 18th of June, 1888 and 26th of June, 1894:

The refusal of the Registrar of Property of this City to record the order approving the proceedings for dominion title prosecuted by Don José Dolores Rivera Claudio, in the name of his wife, Doña Justa García y Lizarraga, is hereby affirmed; a cautionary notice of suspension may however be entered if requested by the applicant.

This decision will be communicated to the District Court of San Juan for the notification of the parties in interest, and after the expiration of eight working days counting from the date of the notification, the proceedings in the case, together with any writings filed by the interested parties, will be forwarded to the said Court.  