
    Díaz Caneja v. the Registrar of Property.
    Appeal from a decision of the Fiscal of the District of Huma-cao acting as Eegistrar for said District.
    No. 7.
    Decided January 21, 1904.
    IPkopbrty Rtghts — Transfers Prom Old Records to the New Registry of Property. — Although article 397 of the Mortgage Law, and 449 of the Regulations for the execution thereof, provide that the transfer of property rights recorded in the old “Office of Mortgages” to the books of the new Registry of Property, must be applied for within the period of one year from the time of the promulgation of said law, this provision should he understood as applicable where the property rights thus transferred might have the effeet of prejudicing a third party; hut where there are no third parties that might he prejudiced by the transfer, the same can he applied for at any time.
    Id. — Third Parties. — Persons who at the time of the promulgation of the new Mortgage Law in this Island, or within the year allowed for the transfer of old records to the new Registry, had acquired property rights over encumbered realty, cannot be considered third parties for the purposes of aforesaid articles of the Mortgage Law and the Regulations for the execution thereof.
    STATEMENT OE THE CASE.
    This is an appeal taken by Jacinto Texidor y Alcalá del Olmo, attorney-at-law, on behalf of the Eev. Mannel Díaz Caneja, from a decision of the Fiscal of the District of Hnmacao, acting, by reason of the incapacity of the incumbent, as registrar of property for said district, whereby the transfer of an annuity (censo) from the old to the new hooks of the Eegistry is refused.
    On July 2,1903, the Eev. Manuel Díaz Caneja, as administrator of the Carmelite Sisters of this city, filed a petition with the registrar of property of Hnmacao requesting the transfer from the old to the new mortgage hooks of the Eeg-istry of Property of an annuity-earning principal of two thousand pesos' settled by Francisco Surillo on his daughter Teresa, a Carmelite nun, upon a farm belonging to him, situated in barrio “Calatrambeffa,” within the municipal district of Yabucoa, consisting of three hundred cuerdas, of which one-third belonged to Eamón Pon y Buzó by purchase from Narciso Soler, according to deed executed in Humacao before Notary Eugenio dé Torres, September 8, 1879. Said petition was handed over to the district attorney by reason of the inability of the registrar to take action upon the proposed transfer. Said transfer had reference only to one- • third of the encumbered farm, belonging to Eamón Pon, the other two-thirds having been conveyed to a third party. The district attorney refused to make the transfer as requested for the reasons set forth in a memorandum placed at the foot of the petition, and which, literally transcribed, reads as follows :
    ‘‘The transfer of the encumbrances as requested above is refused, because the petition has the defect of having been presented after the expiration of the period prescribed by article 397 of the Mortgage Law and prejudices a third party, inasmuch as a deed executed in this city before Notary Antonio de Aldrey, November 2, 1899, appears to have been presented at this office, whereby Ramón Pou y Rios, on his own behalf and as attorney-in-fact of the heirs óf Ra-món Pou y Buzó, conveys to María Ernestina Filomena Ortiz é Iri-■arte, their share of one-third in said farm, which had belonged to their predecessor in interest, and of which deed owing to defects therein, cautionary notice was entered, under letter ‘D,’ folio 88, reverse side, volume 19 of Yabucoa, property No. 239 duplicate, which is the same property as that subject to the encumbrances’the transfer of which is requested; and cautionary notice of this petition is duly entered to have effect during four months from the date hereof, under section 7 of the act approved March 31, 1902. Humaeao, July 3, 1903. Luis Campillo, District Attorney.”
    Notice of tbis refusal having been served upon tbe Rev. Manuel Díaz Caneja, tbe latter, through his attorney, Jacinto Texidor y Alcalá del Olmo, entered this appeal asking that the aforesaid memorandum be set aside and the acting registrar ordered to enter the desired transfer.
    That the ends of justice might best be served, an order was issued by the court calling upon the district attorney of Humaeao, in his capacity as acting registrar, to forward without delay to this court a certificate showing the date when the cautionary notice entered in favor of Ernestina Filomena Ortiz é Iriarte, referred to in his memorandum refusing to make the transfer expired; and from the certificate issued by said official under date of lltli instant, and forwarded to tbe clerk of this conrt, together with bis official letter dated tbe 18th, which was received here the following day, it appears that said cantionary notice was entered on February 4, 1903, and therefore had expired on June 3, 1903, or one hundred and twenty days thereafter; but it was further stated that regarding said property, another cautionary notice in favor of Sister Teresa de Jesús, Nuestra Señora de los Dolores María de Jesús Surillo, had also been entered on July 3, 1903, to take effect during one hundred and twenty days, which had likewise been canceled, having expired on October 30, 1903, and it not having been shown that any appeal had been entered during said period; and that according to entry No. 385, on folio 150, book 12, of the journal of said Registry, the deed of purchase and sale executed in favor of María Ernestina Filomena Ortiz had again been presented, giving rise to the cautionary notice entered in favor of said Filomena Ortiz, the record of which document was pending, while the aforesaid entry of its presentation was still running its legal course.
    
      Mr. Texidor, for appellant.
   Mr. Chief Justice Quiñones,

after making the above statement of facts, delivered the opinion of the court.

Although under articles 397 of the Mortgage Law for this Island, and 449 of the Regulations for the execution thereof, the transfer of property rights recorded in the old “Office of Mortgages” to the books of the modern Registry of Property had to be applied for within the period of one year from the time of the promulgation of said law, this provision should be understood as applicable where the property rights thus transferred might have the effect of prejudicing a third party; but where there were no third parties who might be prejudiced by the transfer, it could be applied for at any time.

For the purposes of the aforesaid articles of the Mortgage Law and Regulations for its execution, and according to the explanations contained in the Royal Order of November 28, 1894, persons who at the time of the promulgation of the new Mortgage Law in this Island, or within the year allowed for the transfer of the old records to the new Registry, had acquired any property right over encumbered realty, could not be considered as third parties; and applying this principle to the present case, it is evident that nothing could prevent the transfer of the annuity, as requested by the Rev. Manuel Díaz Caneja, inasmuch as neither Ramón Pou y Buzó, nor his heirs, who were in possession of one-third of the farm in question, could be considered as third' parties for the purposes of the desired transfer; the former, because he had acquired it before the promulgation of said law, with knowledge of the encumbrance, which he had engaged to satisfy, and the latter, because, having succeeded to the personality of the one from whom their rights were derived, are hound to the fulfillment of his obligations; and as to Maria Ernestina Ortiz, because the cautionary notice entered in her favor with reference to said farm having lapsed, prior to the filing in the Registry of the petition requesting the transfer, as appears from the certificate forwarded' to this court by the acting registrar of Humacao, it could no longer pro-, duce the effect of preventing said transfer.

Such other issues as might arise in connection with the recent entries made in the Registry of Property with respect to aforesaid farm, and to which the registrar’s certificate also refers, not having been submitted, they cannot he passed upon in the present appeal.

In view of the above mentioned articles of the Mortgage Law and Regulations, and the explanatory Royal Decrees of January 19 and 30, 1894, and June 18, 1895, we reverse the decision of the district attorney of Humacao, acting as registrar of property of said district, placed at the foot of the petition of the Rev. Manuel Díaz Caneja, and declare that the transfer of the annuities on two thousand pesos, requested by said Díaz Caneja upon the farm in question, should be made. Notice of this decision is ordered to be given to appellant’s attorney, to whom the documents presented shall be returned, a certified copy hereof to be forwarded to the Fiscal of the district of Humacao for his information and guidance.

Justices Hernández and MacLeary. concurred.

Justices Higueras and Sulzbacher took no part in the decision of this case.  