
    Ernest V. S. Richardson Plaintiff and Appellant, v. Francisco Martínez, Defendant and Appellee.
    No. 3822.
    Argued May 26, 1926.
    Decided July 31, 1926.
    
      Enrole Rincón for the appellant. Campillo & Campillo for the appellee.
   Mr. Justice Audrey

delivered the opinion of the court.

This is an injunction proceeding to recover the possession of part of a property wherein it is alleged that plaintiff Ernest V. S. Richardson, on December 8, 1922, bought at forced sale on the foreclosure of a mortgage created by Albert Thyboe a property of 27 acres in Candelaria ward of the municipality of Toa Baja, of which, he was put in possession by the marshal on the said date; and that in the month of September or October, 1924, some seven months prior to tli e filing of the injunction proceeding, defendant Francisco Idartinez entered the said property and occupied, on the eastern side thereof on that part which is bounded by the Hondo creek, a .perimetre of about 7 or 8 metres, the complaint reads, but a witness said 5 or 6 acres, enclosing the same with wire, planting some cane, cutting timber and making charcoal.

The defendant opposed this claim, denying that on said date he entered the said property and alleging that although it was true that on the 19th of February he sold to Albert Thyboe a property measuring 31 acres located in the said ward, the purchaser had sold to him by public instrument dated May 24, 1919, a parcel of five acres in the eastern part of it on the boundary line of Hondo creek.

The trial was held and the complaint was dismissed. From the judgment of the trial court this appeal was interposed by the plaintiff.

The evidence justifies the judgment appealed from, because it shows that while it is true that in February, 1919, defendant Martinez sold to Albert Thyboe a farm of 31 acres located in Candelaria ward, Toa Baja, bounded on the east by the Hondo creek and other landowners, in the same year Thyboe sold to Francisco Martínez a portion of said farm consisting of 5 acres on the eastern side of it on the boundary line of Hondo creek; that Albert Thyboe having brought an injunction suit against Francisco Martinez to recover possession of part of the 27 acres, the said complaint was declared withdrawn by a decision of the District Court of San Juan of May 29, 1922; that since that time Francisco Martinez is occupying the land which Ernest V. S. Richardson alleges said Martínez has occupied, planted in cane and enclosed, nobody ever disturbing him in that occupation claimed by the plaintiff to be of the land which he bought from Tliyboe; and tliat from December, 1922, tlie date on which plaintiff Richardson bought at public sale Albert Thyboe’s 27 acres, and was placed in possession thereof, the purchaser has resided in San Juan, paying no attention to the farm on which he has nothing, and has left in charge a man who lives near by to sell it.

In view of this evidence, which it is alleged would not sustain the judgment, we have reached the conclusion that the real question between the parties is one of boundaries, which is not a proper question to be determined in this special’ proceeding, and that if defendant is occupying lai>d belonging to the plaintiff, such occupation ran for over a year on the date the injunction 'proceeding was filed to recover possession, this being a term which is a bar to the action under this proceeding, and consequently is sufficient ground to affirm the judgment appealed from.

Mr. Justice Hutchison took no part in the decision of this case.  