
    Blanco v. the Registrar of Property.
    Appeal from a decision of the Registrar of Property of San Juan.
    No. 9.
    Decided December 17, 1903.
    Becord oe Title * — Property Becorded in Pavor oe Another. — 'When property transferred or encumbered is recorded in favor of a person otter than the one executing the transfer or encumbrance, the registrar shall refuse the requested record.
    Property Belonging to the Conjugal Partnership. — Property acquired by any o'f the spouses for a valuable consideration during the marriage shall be considered as of the conjugal partnership, unless it be proven that it was acquired with property belonging exclusively to the husband or to the wife .
    Id. — Alienation op Property Belonging to the Conjugal Partnership. — Intervention op I-Ieirs. — -Property acquired fox a valuable consideration during the marriage, though recorded in the name of the husband, shall be considered as property belonging to the conjugal partnership; and a conveyance of said property made by the husband after the death of the wife, cannot be recorded, if it appears that no liquidation of the property belonging to said partnership had been made, unless the consent of all the heirs of the wife to such conveyance should have been obtained or they should have renounced their rights to said property.
    Id. — The fact that the husband should have paid out of his personal funds, after the death of Ms wife, certain mortgages constituted upon the property acquired during the marriage, does not affect the force of the doctrine or principle enunciated in the foregoing paragraph, because the title of the original acquisiton is still the same and the payment made by the husband under such circumstances could only give rise to a liquidation of accounts between the husband and the heirs of the wife.
    Defects Not Capable oe Correction. — If the obligation entered into by means of an instrument should be intrinsically null and void, the defect shall be eon-sidered as not capable of correction, wMch precludes its record in the registry of property .
    STATEMENT OP THE CASE.
    The hearing has been had in this appeal taken by Julián Blanco from a decision of the Registrar of Property of this city, refusing the admission to record of a deed of sale of certain city property.
    By a public instrument executed in this city before Notary G-abriel Gnerra y Acosta, acting as substitute for Mau-rico Guerra Mondragón y Mejias, also a notary public, on August 20, 1903, Mercedes, Isabel and María Carlota Blanco Pérez and Julián E. Blanco y Sosa, sold to Antonio Blanco y Pérez, for the consideration and under the other conditions specified in said instrument, ho'nse No. 91, on San Francisco street, in this city,, valued in the testamentary proceedings of the original owner thereof, Lucas Pérez y Pérez, at the sum •of eighteen thousand Mexican pesos, whereof one thousand nine hundred fifty-three pesos and thirty-eight centavos belonged to the three first mentioned parties, by inheritance from their grandfather, the aforesaid Lucas Pérez y Pérez, and the remaining sixteen thousand forty-six pesos and sixty-two centavos to the other party, namely'Julián Blanco y Sosa; of this sum, two thousand nine hundred sixty-seven pesos and eighty-seven centavos, was the amount of a mortgage on the house, object of this deed of sale, paid by him to the heirs of Medina on reaching their majority, and for which he had been assigned a like sum, as executor of aforesaid Lucas Pé-rez, the same being .recorded in the proceedings had for the division of the latter’s property; the remaining thirteen thousand and seventy-eight pesos and seventy-five centavos, being the amount of purchases made from the several parties owning interests in the property and who are mentioned in aforesaid instrument, wherein the parties appearing further declare that the share belonging to Julián E. Blanco in the bouse is subject, among other liabilities, to the payment to Julio and (Guillermo Pérez Acosta of the sum of thirty-five pesos and twenty-three and seven-tenths centavos, Mexican coin, which were left unpaid upon his purchase of their respective shares in the house, or twenty dollars and eight and one-half cents, United States currency, each, and to Lucas Blanco y Perez ninety pesos, forty-six centavos, of his share in the same house, sold also to Julián E. Blanco y Sosa, said Lucas being unable to execute the deed of sale thereof, owing to his having lost his reason, but which deed would be executed by his legal representative’ as soon as appointed. The following clause was also inserted in said instrument:
    “4. That, as is well known by all the parties appearing, the house is subject to absolutely no other liability, encumbrance or easement of any sort. However, for the sake of clearness, and to avoid any doubt in the future, the following statement is made: When the last mortgage deed was executed in favor of the American Colonial Bank, in which the previous ones were re-established, the Registrar of Property notified Blanco y Sosa that he could not mortgage the share of two thousand nine hundred and sixty-seven pesos and eighty-seven centavos assigned to him as executor of Lucas Pérez y Pérez in the latter’s testamentary proceedings, in part of the value of said house, to pay the mortgage thereon in a similar sum due the heirs of Medina, because the conjugal partnership existing at the time the assignment was made, between him and his first wife, Antonia María Pérez y Real, then living, had not been liquidated ; that although such an assignment made , in his capacity as executor and for the satisfaction of a debt of Lucas Pérez was not in the nature of an assignment made by Antonia’s husband, nor could it be treated as belonging to the conjugal partnership existing between them, especially when said debt did not fall due nor could it be paid by Blanco y Sosa until after he had become a widower, and .then it was when, with his own money he really did acquire aforesaid share, which was recorded in his name only at the Registry of Property, through purchase from the nine descendants and heirs left at her death by Antonia Pérez y Real, six of whom, namely, Marcos, Antonio, José Mercedes, Isabel and María Carlota Blanco Pérez, acknowledged and declared explicitly by public instrument, also executed in this office on the 30th of December, 1902, in conformity with their previous statement, that neither themselves nor the other coheirs had, or could have, a right to claim any portion of the aforesaid two thousand nine hundred and sixty-seven pesos and eighty-seven centavos, in which their deceased mother had no interest whatever; the other three heirs not having made the same declaration, because Juan Blanco y Pérez y Pérez and Julian Blanco Steel, son and grandson, respectively, of the deceased Antonia Pérez, had died during their minority, the former of whom was succeeded by his father, Blanco y Sosa, and the latter by his mother, Natalia Steel, now absent, neither of these two last mentioned having been declared heirs; and as to the other heir, Lucas' Blanco y Pérez, because of his having lost his reason as before stated. That although on the strength of these declarations, the Registrar has admitted that Blanco y Sosa can validly dispose of, or mortgage, the portion of the sum in question that could have been claimed by the six heirs herein-before mentioned, he insisted that the portion belonging to the other three heirs, namely, Lucas, Juan Blanco y Pérez and Julián Blanco Steel, should be reserved to them. So that, upon the supposition that the two thousand nine hundred and sixty-seven pesos and eighty-seven centavos appertained to the first conjugal partnership of Blanco y Sosa, and that one-half thereof, say, one thousand four hundred and eighty-three pesos and ninety-three and one-half centavos, Mexican money, or eight hundred and forty-five dollars and eighty-four cents, United States currency, belonging to his deceased wife, Antonia Pérez Real, each of her nine descendants and heirs would be entitled to ninety-three dollars and ninety-eight and one-quarter cents, United States currency, and, therefore, the three heirs whose right has been reserved by the registrar, although the parties appearing do not recognize them as having any, would be entitled to two hundred and eighty-one dollars and ninety-four and three-quarter cents, United States currency. ’ ’
    Aforesaid deed having been presented for record at the Registry of Property of this city, the same was admitted in part and. refused in part by the registrar, for the reasons stated in.the decision entered at the end of the same, and which literally reads as follows:
    ‘ ‘ Tbe above document, as regards tbe sale. of and tbe mortgage upon tbe property described therein, with tbe exception of tbe shares hereinafter to be mentioned, is recorded at folio 135, vol. 50, of San Juan, property 202, ninefold, entry 38A. As regards tbe shares of thirty-five pesos and twenty-three centavos, Mexican money, appertaining each to Julio and Guillermo Pérez Acosta, and of ninety pesos and forty-six centavos belonging to Lucas Blanco y Pérez, -and the interest Lucas and Juan Blanco y Pérez and Julián Blanco Steel, may be entitled to in half the two thousand nine hundred and sixty seven pesos and eighty-seven centavos, Mexican currency, assigned to Julián E. Blanco in the testamentary proceedings of Lucas Pérez, the record of the sale thereof is refused, under article 20 of the Mortgage Law; as also that of the shares acquired by Blanco y Sosa through purchase from Antonio, Marcos and José Blanco y Pérez, Manuela Pérez Martínez and Palmira and María Pérez Acosta, because the alienation thereof is made by him without the consent of his wife, as required by article 159 of the Civil Code; and record of the mortgage upon the above-mentioned- shares the sale whereof has been refused admission to record is denied because the same have not been recorded in favor of the vendee Antonio Blanco y Pérez, who therefore, cannot dispose of them as the owner thereof. Notice of aforesaid sale and mortgage has been entered with respect to the shares whose record is refused in the above named entry 38A, which notice shall have legal effect' during one hundred and twenty days from the date hereof. . San Juan, Porto Rico, October 15, 1903. José Benedicto, Registrar.”
    Notice of tbe registrar’s refusal having been served upon Julián Blanco y Sosa, be requested that tbe instrument be sent up to this Supreme Court for decision, which was done by tbe registrar with tbe proper communication.
   Mb. Chibe Justice Quiñones,

after making the above statement of facts, delivered the opinion of the court as follows:

As regards the first reason for his refusal, urged by the registrar, namely that inasmuch as Juliffin Blanco y Sosa has no record of his ownership of the shares pertaining to Julio and Guillermo Pérez y Acosta, and Lucas Blanco y Pé-rez, in the house in question, said ownership being recorded in their favor in the Registry of Property, the provision contained in article 20 of the Mortgage Law must be strictly complied with, according to which, if the property transferred or encumbered is recorded in favor of a person other than the one executing the transfer- or encumbrance, the registrar shall refuse to make the record requested.

As to the second reason alleged in the registrar’s memorandum, inasmuch as the assignment awarded to Julián Blanco y Sosa in the testamentary proceedings for the division of the estate of his father-in-law, Lucas Péi’ez y Pérez, of a share in the value of house No. 91 on San Francisco street, in this city, amounting to Jwo thousand nine hundred and sixty-seven pesos and eighty-seven centavos, Mexican money, for the payment of a mortgage upon said house for a like sum, it was in reality an acquisition of property for a valuable consideration; and as said assignment or award occurred when his first wife, Antonia Pérez, was still living, there is no doubt that the share in the value of the house, thus acquired, belonged to the conjugal partnership, according to the law in force at the time said award was made, namely, in the year 1881, when the division of the estate of Lucas Pérez was made and approved, and according to which property acquired by any of the spouses for a valuable consideration during the marriage shall be considered' as of the conjugal partnership, unless it be proven that it was acquired with property belonging exclusively to the husband or to the wife, upon which point the old Civil Code agreed with the one -now in force; and as, on the other hand, it does not appear that the estate of Antonia Pérez Ras been liquidated, Julián Blaneo y Sosa bad no power validly to sell tbe joint share in question, at least so far as Lucas and Juan Blanco y Pérez and Julián Blanco Steel, are concerned, they not having waived the right they may have in aforesaid joint share, as heirs of the de-' ceased Antonia Pérez.

The foregoing conclusions are not destroyed by the fact that the share in question in the San Francisco street house-was awarded to Julián Blanco y Sosa, as testamentary executor of his-father-in-law, Lucas Pérez y Pérez, or because he-had paid the mortgage on said house subsequently to the death of his first wife, Antonia Pérez, with money belonging ex-, clusively to himself, as stated in the document; in the first place, because by virtue of the adjudication made to the executor Julián Blanco, the title to the share transferred to him by the heirs in the value of the house, was acquired by Ju-lián Blanco y Sosa, in his name as a private individual, without any. responsibility other than that of satisfying the mortgage upon the house; in the second place, because, even though the payment had been made after the dissolution of his marriage with Antonia Pérez and with money belonging to himself, which has not been proven in any manner, this circumstance would not alter in the least the nature of the acquisition of the title in its origin and would only be the occasion, in any event, for a settlement or liquidation of accounts between the widower, Julián Blanco, and the heirs of his first wife.

As to the third or last reason alleged in the registrar’s decision to the effect that inasmuch as the second wife of the vendor,. Julián Blanco, had not appeared, at the execution of the document, to give her consent to the sale of the various shares'which, as appears from said document, were acquired by the vendor after his second marriage, according to section 159 of the Civil Code, the sale contains a defect which renders the obligation null and void, the same constituting, according to article 110 of the Regulations for the Execution of the Mortgage Law, a defect not capable of correction, which precludes the admission of the same to record in the Registry of Property.

Inasmuch, therefore, as the ownership of the shares referred to herein are not recorded in favor of the vendee, Antonio Blanco y Pérez, he lacks authority to mortgage the same in a valid manner.

In view of the legal provisions cited above, the decision placed by the Registrar of Property of this city at the end of the deed of purchase and sale in question, is approved in all its parts, and said deed is ordered to be returned with a copy of this decision to the Registrar of Property for his information and guidance.

Justices Hernández, Figneras and MacLeary concurred.

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