
    Morales et al. v. Lopez et al.
    Appeal in cassation from the District Court of San Juan.
    No. 23.
    Decided January 20, 1903.
    Executive Trust. — Upon execution fey an executor of a deed of sale specifically providing that a certain portion of the purchase price, remaining in the hands of the vendee, shall he paid by the latter directly to the heirs, the trust relation ceases as to such property and the executor is not legally qualified to receive such deferred payment.
    Evidence.- — Judges and Courts are left free to weigh the force of the declarations of witnesses with no limitation other than the rules of sound judgment.
    Deeds. — Stií’uxjAtions.—Where a deed of conveyance contains a stipulation that the balance of the purchase price will be paid upon a specified condition, action will not lie to recover such balance until the condition has been fulfilled.
    In this case an executor duly authorized sold a house belonging to the testator, leaving seven thousand dollars with the vendee to abide the outcome of an injunction by which it was encumbered. Said injunction having been dissolved, the heirs claimed the above sum from the vendee who alleged that it had been paid to the executor. On appeal it was alleged that the executor had capacity to receive the money and that the payment had been made in good faith. Held:
    (ct) That although the capacity of executors depended on the powers which testators saw fit to invest them with, yet, 'that of the one appointed in this case came to an end with respect to the sale of the house from the moment the deed was executed wherein the application to be given to the seven thousand dollars, balance of the purchase price, was finally determined.
    (&) That the payment should have been made to the heirs of the testator, as the only creditors in whose favor the obligation appeared to have been constituted.
    (c) That by virtue of the reservation in favor of the heirs made in the deed, the capacity of the executor to effect the collection of that part of the price had ceased.
    (d) That the debtor could not have made the payment in good faith, since he must have been aware of his engagement to pay the money with the interest to said heirs.
    
      (e) That the said payment, therefore, does not relieve the debtor or his estate, from the obligation contracted by him with regard to aforesaid heirs.
    STATEMENT OF THE CASE.
    On November 14, 1876, Carmen Grau y Herrero, a widow, fifty-six years, of age,, property-holder and resident of this Capital, executed a nuncupative will before Notary Juan Ramón de Torres, of said city, whereby among other particulars she declared in the fifth clause thereof that she was part-owner of a two story flat-roof stone house, situated on Cruz Street in this city, opposite the main square; under the ninth clause thereof, said house whereof she, the testatrix and her sister Estéfana Grau were the sole owners, had been offered for sale to Bernabé Chavarry, and power of attorney had been conferred by them upon Francisco de Paula Acuña to draw up the deed, but as there were certain obstacles to be surmounted in order to execute said deed it was her will that in case she should die before the execution thereof, the same should be carried out by. her testamentary executors; the proceeds of the sale to be distributed among her heirs and legatees; the price fixed and agreed by the testatrix and her sister, being twenty-six thousand pesos. Under the tenth clause she named José Pablo Morales, Ricardo Mendizabal and José Carambot, as testamentary executors, conferring upon them all the necessary powers jointly and severally to carry out her last will and testament, making such extension,’ beyond the period of one year provided therefor by law, as might be required, and further empowering them to settle her estate extra-judicially and without the intervention of any judicial authority. Under the eleventh clause she constituted as sole and universal heirs to her residuary estate, actions and rights, Mercedes Morales, José Carambot and his children, Juan and Santiago, as follows: Mercedes one-half the liquidated estate, and Carambot and his children the other half, in equal shares. Subsequently by public deed executed in this City under date of January 22, 1877, before Notary Demetrio Jimenez y Moreno, Francisco de Paula Acuña, acting as special attorney, fox the • widow Es-téfana Grau and José Pablo Morales, as testamentary executor of Carmen Grau, deceased, the former in compliance with the instructions received from his principal, and the latter in compliance with the direction of the testatrix contained in the ninth clause of her will, executed a deed of sale of aforesaid house No. 15 Cruz Street, opposite the main square in this city, in favor of Bernabé Chavarry, a merchant of said City, for the sum of twenty-six thousand pesos fuertes, which was the currency in circulation on that date, payable as follows: the vendee agreed to pay two thousand and seventy-five pesos for a mortgage annuity (censo) wherewith the house was encumbered, together with the interest thenceforth accruing thereon, as the previous instal-ments thereof had been settled ; the vendee also agreed to pay seven thousand one hundred and fifty-two pesos and fifty centavos, being the liquidated principal of a mortgage debt against said house and interest accrued up to that date in favor of Isabel Cebollero ; the vendee also agreed to pay to the heirs and successors of Carmen Grau nine thousand seven hundred and seventy-two pesos and fifty centavos, acknowledged by the vendors as having been received on the day of the sale, and the vendee agreed to pay, on one month’s notice, after said injunction prohibiting alienation, which encumbered said house, had been dissolved and the proper cancellation thereof entered in the Registry, the seven thousand pesos which remained in the hands of the vendee secured by mortgage on said house; meanwhile interest at the rate of six per cent per annum was to be paid them monthly pending payment of the principal, which arrangement was agreed to by both the vendee, Chavarry, and the executor, Morales, the latter agreeing to endeavor to secure the dissolution of the injunction.
    On October 6, 1900, Herminio Díaz Navarro, counsel for Manuel Ruiz Ortiz, as husband of Mercedes Morales, both being of age, and for José Carambot and his sons Juan and Santiago of the same surname, instituted in the District Court of San Juan, the suit of which this case is the outcome, against Tomasa Lopez Dominguez and her children Romualdo, Josefa, Bernabé and José Chavarry y Lopez the former in her own right and the others as heirs of their deceased father Bernabé. The complaint after rehearsing the matters hereinbefore set forth, further alleged that notwithstanding the fact that the injunction prohibiting alienation against the Cruz Street house, since February 23, 1881, had been dissolved by an order of the Judge of First Instance of the Cathedral District of this City, pursuant to judgment rendered by the “Audiencia Territorial” of this Island, on September 2nd of the previous year, and despite their repeated demands, they had not succeeded in obtaining from Bernabé Chavarry either the seven thousand pesos, still due on the house or even the interest stipulated in the deed; that Chavarry had died and left a will executed on July 18, 1887, before Gonzalo de las Casas, a Notary of Madrid, wherein he declared that he was married to To-masa López Dominguez, with whom he had had seven children called respectively, María, Rosa, Polonia, Ro-mualdo, Josefa, Bernabé and José Chavarry y Lopez, who were appointed by him as his sole and universal heirs; that an inventory of the state having been taken and a division made thereof, one half of the Cruz Street house was allotted to the widow and the other half to the aforesaid children, the respective awards being recorded in the Registry of Property of this City; that subsequently the heirs Maria, Polonia and Rosa sold their respective shares to their mother, for which reason the house now appears as the sole property of Tomasa Lopez Dominguez and her children Ro-mualdo, Josefa, Bernabé and José Chavarry y Lopez; and invoking in their favor Articles 659, 661, 1089, 1091, 1101, 1108, 1109, 1114 and 1257, of the old Civil Code, which determine the force and efficacy of contracts and the obligation of heirs to pay the debts and fulfill the other obligations of the person from whom the inheritance is derived; plaintiffs prayed that Tomasa Lopez Dominguez, in her own right, and her children Romualdo, Josefa, Bernabé and José Chavarry y Lopez, be adjudged to pay them forthwith the sum of seven thousand pesos with the stipulated interest from February 23,'1881, together with the interest accrued thereon from the date the suit was instituted and costs.
    On service of the complaint on the defendants To-masa Lopez Dominguez and her children Romualdo, Josefa, Bernabé and José Chavarry y Lopez, answer was filed thereto by Eduardo Acuña Ay bar, Esq., alleging as ground of their defense that the “Audiencia Territorial” of this Island in a judgment rendered September 2, 1880, in an ordinary civil suit instituted by the executor José Pablo Morales, against the estate of José Saturnino Núñez, at whose instance the injunction prohibiting alienation of the house was issued, dissolved said injunction and issued the proper order to the Registrar of Property, whereupon in compliance with aforesaid judgment the said official, on February 16, 1881, made a memorandum of the cancellation on the margin of the entry of the injunction; that the executor Morales having fulfilled his engagement to dissolve the injunction, the vendee of the house, Cha-varry, had not delayed payment of the seven thousand pesos that had been left with him, since by deed of October 1, 1881, duly executed before Notary Jimenez y Moreno, of this City, said Morales had acknowledged receipt of aforesaid seven thousand pesos, together with accrued interest to . that date, from José Peña Chavarry, as representative oí Bernabé Chavarry; that the heirs of the deceased succeeded to all his rights and obligations by the mere fact of his death according to Article 661 of the Civil Code, by virtue of which provision, heirs being converted into continuators of the judicial person from whom they derive their rights, all the heirs of Chavarry, namely, his widow and children would at all events be the ones liable for the amount claimed, for as said' amount had been paid when the estate was liquidated, the obligation could not be adjudged to any particular heirs; that the concurrence of two or more creditors or of two or more debtors in a single obligation, does ‘not imply that each one of the former has a right to ask, nor that each one of the latter is bound to comply in full with the things which are the object thereof; this is so only when it is expressly stated in the document, a joint obligation being then constituted according to Article 1137 of the Civil Code; that the obligation the compliance whereof is demanded only of the defendants, fails to show that those called upon to comply with the same are severally bound to do so, it being therefore, a joint obligation on the part of the Chavarry estate, which in any event should have been claimed of all the heirs in proportion to what each had respectively acquired from the deceased; that this consideration is not overcome by the circumstance that the defendants are at present the sole owners of the house, the sale whereof gave rise to the obligation which it is proposed to enforce, since the suit does not involve a real action against said property directly binding the owners and. possessors thereof to the performance of the obligation; nor can it be sustained upon sound principles of law, that the provision contained in Article 1084 of the Civil Code may serve as a basis for a demand by plaintiffs on the defendants for the payment of an obligation affecting all the co-heirs, inasmuch as the provision of said Article is related to that of 1082, which requires that the creditor shall be recognized as such, a circumstance which does not exist in this case, since the defendants do not recognize. the plaintiffs as legitimate creditors merely because their father had paid the obligation in question to the executor José Pablo Morales, and especially when the plaintiffs have also failed to show that the defendants had accepted the inheritance of their father purely and simply, or under the benefit of inventory, as required by Article 1084 of aforesaid Code, in order that the creditor may claim from any of the heirs, after the division has been made, either the whole or part of the debt, as the case may be; that an obligation is extinguished, among other ways, by its payment or fulfillment according to Article 1156 of the same Code, and according to Article 1162, in order that a payment may have the effect of releasing the debtor, it must be made to the person in whose favor the obligation is constituted, or to another authorized to receive it in his name; and on the strength of these provisions, the payment made by José Peña Cha-varry as representative of Bernabé Chavarry, to Morales 'and acknowledged by the latter in a public document dated October 1, 1881, having been made by a person legally qualified, upon a definite and express obligation, and to a person who was legally authorized to receive it in view of the powers conferred upon him by the testatrix, Carmen Grau, in the ninth clause of her testament, has the effect oí a release, and, consequently of extinguishing the obligation in compliance wherewith said payment was made; that the sum received by the executor José Pablo Morales, must have been distributed among the legatees and heirs, is vouched for by the reputation for respectability and honesty enjoyed by the said executor, and the number of years, during his life-time and after his death, which were allowed to elapse by the heirs, who are needy persons, without prosecuting this claim; that in addition to the allegation of payment having been made they, the defendants, had to allege the prescription of the action which was in no way incompatible with, or contradictory to the former, the action brought being purely a personal one, the date when it arose must be considered. The injunction prohibiting alienation was dissolved on September 2,-1880, at that time the Civil Code was not in force, and according to the laws then existing, namely, law 63 of Toro, that is to say, the 5th, Title 8th, Book 9, of the “Novisima Copila-ción”, personal actions prescribed after twenty years, a term which must be respected in accordance with the Article of aforesaid Civil Code, and inasmuch as from that date up to October 6, 1900, which was the date on which the complaint was filed, there had been a lapse of more than the twenty years required by the aforesaid law of the “No-vísima”, for the prescription of personal actions, the action maintained in the complaint had prescribed, and plaintiffs had no longer any right to demand payment of the obligation in question; and for the reasons above set forth, defendants prayed that the suit be dismissed with costs against plaintiff. The case having come up for trial, the proceeding for the taking of evidence was commenced and after the admission of the evidence proposed, at the request of plaintiffs, three certificates from the Registrar of Property of this City, were presented and attached to the record at folio 62, namely, one of the record of house No. 15, Cruz Street, in favor of Tomasa Lopez Dominguez and her children Ro-mualdo, Josefa, Bernabé and José Chavarry y Lopez; another one to the effect that on examination of the first record of property No. 420, folio 232, Volume 9 of the Capital, which begins with a certificate of the entry appearing at folio 6 of Book 30 of the old Registry, at folio 233, there appeared on the margin thereof an entry which being literally transcribed reads: “The mention made opposite hereto, of the mortgage of seven thousand pesos is canceled pursuant to the provision of the Royal Order of May 8th, last”; which annotation appears as having been made under date of October 6, 1894, by Registrar Beyens, and that examination having also been made of entry No. 8 on folio 6, Book 30, of the old Registry, there- appeared no annotation referring to the cancellation of seven thousand pesos which, as stated in said entry, had remained in the hands of Bernabé Chavarry secured by a mortgage on property No. 15, Cruz Street, in this City; in the third certificate it was set forth that on the reverse side of folio 213, of volume 2 of the day book, there was an entry referring to the presentation of the first copy of a deed executed in this City on January 27, 1887, before Notary Jimenez y Moreno, whereby Isabel Cebollero acknowledged the full payment of a mortgage for six thousand and five hundred pesos, which, with accrued interest, amounted to seven thousand, one hundred and seventy-two pesos, and fifty centavos, and constituted a lien upon house No. 15, Cruz Street, in this City; that on the margin of said' entry there was a memorandum to the effect that entry of the preceding document had been refused, because the cancellation mentioned therein had been made by virtue of another deed of the same date, by a marginal note to entry No. 9, folio 4, Book 26, of the old Registry. Likewise at the request of plaintiffs, there were brought and .attached to the record at the reverse side of page 79 two certificates from the Notaries Mauricio Guerra Mondragón -y Mejias and Santiago R. Palmer, setting forth that upon searching the indices of their respective archives, there appeared no record of any acquittance from either Mercedes Morales or José Carambot in his name or in the name of his children Juan and Santiago, of the same surname, in favor of José Pablo Morales, as testamentary executor of Carmen Grau y Herrero, for legacies of two thousand pesos each, that had been left them respectively by the latter in her testament, and further that there appeared on file no record of the proceedings relating' to the probate of Carmen Grau’s will. At the request of defendants there was also submitted the certificate of the instrument of release executed in this City on October 1, 1881, before Notary Demetrio Jimenez y Moreno, by José Pablo Morales in the capacity of testamentary executor for Carmen Grau y Herrero, in favor of Bernabé Chavarry, for the sum of the seven thousand pesos that had been delivered to the latter as the balance due on house No. 15, Cruz Street, in this City, together with the stipul- ' ated interest to that date, by virtue of the dissolution of the injunction prohibiting alienation of the property, which certificate appears on the reverse side of folio 80; witnesses fot defendants, Mauricio Guerra Mondr agón, Antonio Gutierrez, Julián Blanco and Euclidez Jimenez, testified that they had known José Pablo Morales, of whom they entertained the highest opinion, and did not believe him capable of appropriating to his own use any sum that had been entrusted to his care for distribution among other persons; and Jesús Pesquera, witness for plaintiffs, testified that he was present at the Registrar’s office when a deed of release to secure cancellation was presented by José Pablo Morales, and its admission to record was denied, and the Señor Esco-sura, in Madrid, having been consulted in regard to the case, he was of the same opinion as the Registrar, Señor Be-yens. The hearing having been had, judgment was rendered by the District Court of San Juan, on January 13, 1902, overruling the exceptions of payment and prescription alleged by defendants, except the one in regard to the interest accrued after the last five years, the said court sustaining and adjudging the defendants Tomasa López Dominguez and her children Romualdo, Josefa, Bernabé and José Chavarry y Lopez, to pay the seven thousand pesos ■claimed, with interest at the rate of six per cent per annum, accruing during the five years prior to the filing of the complaint, it being, however, understood that said payment was to be made in the amount corresponding to each, proportionally with the other heirs of Chavarry who had not been made defendants in the case, taking into account the .share that had been respectively alloted to each in the estate of their deceased father, to ascertain which a liquidation was ordered to be made in carrying out the judgment; without any special imposition of costs.
    From this decision an appeal in cassation for violation of law was taken to this Court by counsel for defendants, which Aas allowed and the record having been forwarded to this Supreme Court, with citation of the parties, and upon their appearance the record was delivered to counsel for appellants in order that he might perfect the appeal, which he did basing the same upon paragraphs 1 and 7 of Article 1690 of the Law of Civil Procedure, citing as having been violated :
    I. — -Article 901 of the Civil Code, taken in connection with Laws 3 and 32, Title 11, Partida 6, as also the legal principle announced by the decisions of the Supreme Court of Madrid, of June 3rd, and December 17, 1864, and January 17, and March 14, 1866, in not recognizing in the executor José Pablo Morales, appointed under clause 10, of the will executed by Carmen Grau, on November 14, 1876, and especially authorized to sell a certain house, legal capacity to receive the portion of the price that had been left unpaid pending the outcome of an injunction prohibiting alienation of the property. The aforementioned legal provisions and the doctrine established in the decisions referred to, recognize in testamentary executors legal capacity to carry out all the acts that have been committed to them by the testator and which are not contrary to law. So then, pursuant thereto the only source to which we must go in order to determine the extent of their powers, is the will of the testator, set forth in the clauses of testament and clearly construed. Hence, the executor José Pablo Morales having been authorized by the testatrix, Carmen Grau, to execute the deed of sale of the house, the amount whereof was to be distributed among her heirs and legatees, it is clear and evident, as coming within the power to sell and inherent thereto, that he was also authorized to receive the price, whether paid in cash or deferred by reason of some obstacle preventing the sale.
    . II. — The principle of law by which a man is estopped from alleging or denying a fact contrary to his own previous acts, a principle which has been recognized in numerous opinions rendered by the Supreme Court of Madrid, among others, those of December 27, 1873, July 3, 1876, and December 1, 1886, in permitting the heirs of Carmen Grau, plaintiffs in this case, to recognize the fact that the executor Morales had legal capacity to effect the sale of the house and to receive the part of the price which was to be paid in cash, and yet deny that he had such capacity to receive the outstanding balance thereof, which was the object of the deed of October 1, 1881, for the authority and capacity assumed by the executor in performing both acts being the same, the latter cannot be contested as illegal, when the validity and efficacy of the former have been recognized.
    III.- — -Laws 3 and 5, Title 14 of Partida 5, taken in connection with Articles 1156 and 1162 of the old Civil Code, the former of which prescribes as one of the ways of extinguishing obligations, the payment oi fulfillment thereof, and the latter recognizes the releasing effect of a payment made to the person in whose favor the obligation is constituted, or to another autlio-rized to receive it in liis name. 0.n the strength of these provisions, the payment made by Bernabé Chavarry, through his attorney, to the executor José Pablo Morales, and which was the subject-matter of the deed of October 1, 1881, should be recognized as having the effect of extinguishing the obligation contracted, inasmuch as said payment was made to a person legally authorized to receive it, not only by virtue of the special powers conferred upon him by the testatrix, but also by reason of his character as agent of the testator, a character pertaining to all testamentary executors charged with the duty of carrying out the wishes expressed in the will and of making the partition of the estate, according to the legal doctrine laid down in the judgment rendered July 4, 1895; and although it is true that by the deed of sale the obligation to' pay the outstanding seven thousand pesos to Carmen Grau or her heirs, was constituted, there can be no doubt that at the date of said payment Morales still retained all the powers of an executor, as shown on the one hand, by the fact that aforesaid portion of the outstanding price was handed him for the purpose of distributing same among the heirs and legatees of Carmen Grau, a duty appertaining exclusively to an executor, and, on the other, that said payment being conditioned upon the dissolution of the injunction which constituted an incumbrancy upon the house, for the fulfillment whereof the executor had engaged to continue his efforts to procure its final dissolution, his duties could not be considered as having terminated until, said injunction had been dissolved and the price received and distributed among the heirs, thereby complying with the wishes of the testatrix, the execution of which had been wholly entrusted to her executor.
    IV. — Article 1164 of aforesaid Civil Code which recognizes the releasing efficacy of a payment made in good faith to the person who holds the credit, which circumstances exist in the present case, in view of the powers that had been conferred upon the executor by Carmen Grau in the clause appointing him executor, and the stipulations contained in the deed of sale, .which if not empowering him to receive the outstanding price, recognized him at least, as being in possession of the credit; to which consideration should be added the perfect good faith in which Chavarry made the payment as soon as he was called upon to do so, upon the fulfillment of the condition stipulated in the deed.
    V. — Articles 1248 of the Civil Code and 658 of the Law of Civil Pro- ' eedure, in not giving due weight to the testimony of the witnesses Mauricio Guerra, Julian Blanco y Sosa, Euclides Jimenez and José A. Gutierrez, all of whom concurred in proclaiming the respectability and integrity wherewith Morales had characterized every act of his life, whence it is to be inferred that the sum legally paid him by the debtor Chavarry, could have had no application other than that of being distributed among the heirs and legatees; that this distribution was made is shown by the pecuniary circumstances of the plaintiffs, likewise confirmed by the statement of said witnesses, and not taken into account by the Court as it should have done, for it is not to be presumed that persons with scarcely any means of subsistence should have delayed so long in claiming what they believed was legally due them.
    VI and last. — Article 1969 of the Civil Code, in not recognizing the fact that the obligation to deliver the outstanding seven thousand pesos was enforceable from the 2nd day of September, 1880, the date of the judment rendered by the “Audiencia” ordering the dissolution of the injunction. The various clauses of the deed of sale of January 22,' 1877, with respect to Cha-var'ry’s obligation to deliver the balance of the purchase price, refer to the date when the injunction should be finally dissolved, and not to that of the entry thereof in the Registry of Property, which are distinct and independent acts that should not be confused. If, then, the injunction was disolved from the moment judment was rendered in the suit instituted for that purpose, thus complying with the condition required for payment of the balance of the purchase price, the right of plaintiffs to demand said payment began on that day, namely, the date of the judgment, and in failing to recognize this fact and overruling the exception of prescription alleged on the ground that twenty years had not elapsed as prescribed by Law 5, Title 8, Book 14 of the “Novísima Compilación”, for the prescription of personal actions, the Court has violated, not only the provision of aforesaid Article 1969 of the Civil Code, but also Article 1114 of the same Code, which provides that in conditional obligations, the acquisition of rights shall depend upon the event constituting the condition and the foresaid Law of ;the “Novísima”, namely, 63 Toro, all of which have been violated by reason of their non-application.
    
      Mr. Acima (EduardoJ, for appellants.
    
      Mr. Texidor, for respondents.
   Me. Gi-iief Justice Quiñones,

after making the above statement of facts, rendered the following opinion of the Court:

Although under Law 3, Title 10, Partida 6, and Article 901 of the old Civil Code, concordant thereto, as also the doctrine of the Supreme Court of Spain cited in the first allegation of the appeal, the functions of executors depended on the powers which testators saw fit to invest them with in the testamentary clauses referring to their appointment as such, and according thereto, executor Morales in executing the deed of sale of the house in question in favor of Chava-varry, acted fully within the powers conferred upon him by the testatrix Carmen Grau in the ninth clause of her will, yet, from the moment said deed was executed, wherein it was finally determined what disposition should be made of the seven thousand pesos, balance of the purchase price left in the hands of the vendee subject to the outcome of the injunction prohibiting alienation of said house, which sum was to be paid to the heirs of Carmen Grau as soon as aforesaid injunction had been dissolved, and the vendee in the meantime to pay monthly to said heirs the stipulated interest at the rate of six per cent per annum thereon, it is evident that with these acts of the executor and the steps which in the deed he had agreed to take looking to the dissolution of the injunction, his trust in connection with the sale of the house had come to an end, and he could no longer legally go against his own acts, and thus leave without effect what had solemnly been agreed upon in the deed as to the delivery of the unpaid balance of seven thousand pesos, and interest thereon, to the heirs; therefore the Court below in so deciding, did not contradict itself nor violate the laws and other legal provisions cited in the first and second grounds of the appeal. Nor have Laws 3 and 5, Title 14 of Partida 5, and Articles 1156, 1162, and 1163 of the Civil Code, concordant thereto, cited under grounds III and IV, been violated, inasmuch as the vendee, Bernabé'Cha-varry, having bound himself in the deed of sale in question to pay the outstanding seven thousand pesos, and stipulated interest accrued thereon, directly to the heirs of Carmen Grau, he had to make said payment to them as the only creditors in whose favor the obligation was constituted, and not to the executor José Pablo Morales, whose capacity to effect the collection of that part of the price had already ceased by virtue of the reservation in favor of the heirs made in the deed. Whence it is further to be inferred, that neither the executor José Pablo Morales was the holder of the credit, as alleged by counsel for appellants, nor could the debtor Ber-nabé Chavarry, have paid it to him in good faith, since he must have been aware of his agreement made in the deed, to pay said debt with the stipulated interest, to the heirs of Carmen Grau as soon as the condition agreed upon had been fulfilled, and, therefore, the-payment made by the debtor Bernabé Chavarry, to the executor Morales, does not relieve the former, or his estate, from the obligation contracted by' him with regard to the aforesaid heirs. As to the error of law in the consideration of evidence, on which the fifth ground of the appeal is based, the Court below, far from violating Articles 1248, of the Civil Code, and 658 of the Law of Civil Procedure, in not attaching any importance to the statements of the witnesses Mauricio Guerra Mondragón, José Antonio Gutierrez, Julián Blanco and Euelides Jimenez, has correctly applied said legal provisions, by which Courts of Justice are allowed a wise discretion in the consideration of the probatory value of the testimony of witnesses, with no limitation other than the rules of sound judgment, none of the 'provisions cited having been violated, inasmuch as the testimony of the aforesaid witnesses was limited to the statement that the executor José Pablo Morales was held by them iri high esteem and that they believed him incapable of appropriating to. his own use money received by him for a specified purpose, the Court below could not logically consider said declarations as sufficient evidence that said obligation had been complied with by the executor, since none of the witnesses had affirmed that he had really complied therewith, and the matter was especially one in which public documents, acquittances and other vouchers are generally availed of by executors to justify their accounts and at all time relieve themselves from responsibility tor sums received by them for distribution among legatees and heirs. As regards the violation, which is also alleged, of Law 68 Toro, namely, the 5th, Title 8, Book 11, of the “Novísima Re-copilación’’, and of Articles 1114 and 1969 of the old Civil Code, inasmuch as it was expressly stipulated in the deed of sale of January 22, 1877, that the seven thousand pesos, balance due on the price, was to remain in the hands of the ven-dee Bernabé Chavarry, subject to the outcomé of the injunction prohibiting alienation wherewith the house was encumbered, and that the heirs of Carmen Grau could not dispose of said sum until 'the dissolution of the injunction had been secured and “confirmed by means of the cancellation thereof” and after a month’s advance notice, which stipulations were agreed to bjr the vendee in all particulars, Bernabé Cha-varry, who thus bound himself to comply with the obligation in so far as it concerned him, and especially to abide by the result of the injunction which constituted an encumbrance upon the said house, until its final legal dissolution, it is evident that until the cancellation of the said injunction had been entered in the Registry of Property, the obligation on the part of the vendee to make payment did not become effective, nor were the heirs in a position legally to demand of him the fulfillment of said obligation, both because such was the agreement entered into in the deed, and because the injunction not being dissolved, operated to the prejudice of third persons until the cancellation thereof had been recorded in the Registry of Property, so long as this was not done, the house did not stand released from the encumbrance, nor was the vendee relieved from responsibility in that respect, and, therefore, inasmuch as from the date of the record of dissolution of the injuntion, February 23, 1881, to that of the admission of the complaint, October 11, 1900, since the date on which the same was filed is not on record, the twenty years required by Law 63 of Toro, namely, the 5th, Title 8, Book 11, of the “Novísima Recopilación”, for the prescription of personal actions, which is the nature of the suit prosecuted by plaintiffs, have not elapsed, the Court below in sustaining the complaint, instead of violating aforesaid Law of the “Novísima” and the Articles of the old Civil Code, cited in the seventh and final point urged by appellants, has, on the contrary correctly applied them.

We should declare, and do declare, that the appeal in cassation for violation of law, taken by Tomasa Lopez Dominguez and her children Romualdo, Josefa, Bernabé and José Chavarry y Lopez, does not lie, and tax the costs against them.

Messrs. 'Associate Justices Hernandez, Figueras and Mac-Leary, concurring.

Mr. Associate Justice Sulzbacher, dissenting.

Dissenting opinion of

Associate Justice Sulzbacher:

Referring to the facts in this case, as stated in the opinion of the majority of the Court, I shall allude only to the part thereof which I deem necessary for the purposes of this dissenting opinion. Carmen Grau and Estéfana Grau were joint owners of a house in the City of San Juan, No. 15, Cruz Street. By a document dated November 14, 1876, Estéfana authorized Francisco de Paula Acuña to sell and convey said real estate to Bernabé Chavarry, for the sum of twenty-six thousand pesos. Carmen Grau in her testament, dated November 14, 1876, directed that in case she should die before the sale was effected, it was to be carried out by her executors, or any of them, the amount of the sale to be apportioned among her heirs and legatees. It appears that José Pablo Morales, one of the executors, after the death of Carmen Grau, effected the sale to Chavary, receiving from him the sum of nineteen thousand pesos, as partial payment, and according to the instrument executed by said Chavarry in favor of Pablo Morales, dated January 22, 1877 it was stipulated that the former was to retain the sum of seven thousand pesos, that is to say, the balance due by him to the latter, until an injunction encumbering said real estate had been satisfied and dissolved, and that then the said Chavarry would “pay the heirs and successors of Carmen Grau” the aforesaid sum of seven thousand pesos. It also appears, and this has not been denied, that said Morales, the executor, out of the money he had received from Chavarry, duly applied the respective sums appertaining to the estate of Carmen Grau, to satisfying injunctions, mortgages and annuities (censos) which, having been contracted previously, encumbered said house. It also appears that when the “Audiencia Territorial” issued a decree and delivered judgment-declaring that the injunction had become extinct and ordering the cancellation thereof in the public records, Chavar^ paid executor Morales the aforesaid sum of seven thousand pesos, the former receiving - from the latter an acquittance for the full amount thereof, and a month after-wards executor Morales .effected the cancellation of aforesaid injunction in the Registry. On October 6, 1900, the heirs of said Carmen Grau brought this action in the District Court of San Juan against the heirs of Chavarry who at present possess the house No. 15, Cruz Street, to recover from them the aforesaid sum of seven thousand pesos and interest accrued thereon. The District Court of San Juan declared that said sum was due and should be paid, and rendered judgment to that effect. The majority of this Court has affirmed said opinion and judgment. I cannot concur in this decision. It is true that the will of Carmen Grau directs that the amount of the sale of the property he apportioned among the heirs and legatees of the testatrix, but it seems to me that by this clause she merely determines or indicates who are to receive the money, forbidding by said clause any other application of said funds. She authorized Morales to make and execute the deed of sale of said property. And it is natural to infer that the person who executed the deed should also have authorization to receive the proceeds of the conveyance. Said person could not execute the deed without receiving the amount or cost thereof. It was so understood, it would seem, by the heirs of Carmen Grau, because they offered no objection when Morales received the portion belonging to Carmen Grau, and paid the first credits. And I make this affirmation with a perfect knowledge of the fact that under the laws in force in Porto Rico, which go as far back as the “Partidas”, the powers of an executor were strictly defined and could not exceed the limits of their authorization. And the fact that the heirs ratified the acts of the executor, permitting him to' satisfy the first credits that encumbered the property is to my mind conclusive evidence that they interpreted said agreement as giving Morales the right to receive the money. The clause in the document executed by Cha-varry in favor of Morales wherein he declares “that he ivill pay the heirs and successors of Carmen Grau the sum of seven thousand pesos”, is merely a repetition of the clause contained in the will, namely, “that the money was to he paid to the respective heirs and legatees designated therein, and it should not be applied to any other purposes”, or paid to other persons, the opinion being also admitted, it would seem, that if Morales had power to execute the deed of cancellation of the injunction, he also had the right to receive the money. The defendants plead the law of prescription after twenty .years. The question arises as to whether the period for instituting the action should be reckoned from the time when the “Audiencia Territorial” decreed the dissolution of the injunction, or from that in which the latter was recorded at the Registry. Should the former prevail, the action is extinguished by prescription, if the latter, then the action was instituted some two months before the expiration of the twenty years. It may, therefore, readily be observed that this controversy and surrounding circumstances are involved in doubt. In cases of this kind, where plaintiffs allow years and years to pass without alleging any right, when generations which had the primary right, if there was any right, have disappeared; when other, persons who . could have been held responsible have abandoned this life; when the executor is dead; when after a lapse of more than twenty years since the original acts took place, a claim is revived, a strong doubt should naturally arise in the mind of the Court as to the ground for the demand, leading to a presumption of payment. And this doubt should be decided in favor of the heirs, the supposed debtors, unless the plaintiffs are able to dispel that uncertainty, and establish their rights, clearly and beyond all discussion. They base their claim wholly upon deductions and the most rigid interpretation of the law. Article 658 of the Law of Civil Procedure reads as follows:

“Judges and Courts shall weigh the force of the declarations of witnesses according to rules of sound judgment, taking into consideration the reasons upon which they are based and the circumstances connected therewith”.

The witnesses are here, the documents of evidence are in view, and the Court, after such a long period of time, should apply, for the purpose of weighing them the rules of sound judgment. By these principles it should have been declared that Morales, pursuant to the will of Carmen Grau, had real, if not implicit, authorization to receive the money, with the condition of delivering it to the heirs and legatees, according to the instructions contained in said will. It also should have been, taken into consideration that the condition contained in the document executed by Chavarry in favor of Morales, to pay the seven thousand pesos to the “heirs and successors of Carmen Grau”, was only a repetition of the provisions of the will, and that, therefore, he had a right, and it was his duty, to receive the money. Taking into consideration the period of time elapsed; the death of all the parties who had intervened in the transactions; that the claim was not put forward, nor any right alleged, during the life of any of them, and that no action has ever been brought against the executor or his heirs, not only the acts of the executor Morales should be declared as authorized by the various documents, but also a strong presumption of his having paid said sum to the heirs of Carmen Grau, pursuant to the provisions contained in the will. For these reasons I am of opinion that the judgment of the District Court should have been reversed and the complaint dismissed.  