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twenty-second day of June, eighteen hun-previously been declared heir ab intestato dred and ninety-three, consign and deposit of said Manuel Sixto, deceased, by the order with the said court, and did place at the dis- and decree of the proper court, to wit, the posal of the same, the sum of four thousand court of the first instance of Humacao, re(4,000) pesos of the money then current in spectively on the 21st and 23d of the month Porto Rico, and the further sum of eight of November, 1893. hundred twenty-two and fifty-two hun- "And as to the third and fourth instal. dredths (822.52) dollars of the same kind of ments the defendant says that on the 11th money, the first sum being the amount of day of September, 1894, the aforesaid Belen the first instalment due May fifteenth, Sixto, for a valuable consideration, ceded eighteen hundred and ninety-three, and the and transferred the said two instalments to second sum being the interest due on the one Antonio Roig y Torruella; that thereaforesaid mortgage credit up to the first of upon the said transfer was duly recorded, June, eighteen hundred and ninety-three. and the said two instalments appeared upAnd the said decree of the said court was on the record to be the property of the said duly entered before the commencement of Roig, and thereupon, to wit, on or about the this action, and still is in full force and 16th day of May, 1896, the defendant paid eflect.

the said Roig the amount of said two instal“And the defendant further says, as to ments, together with all interest due.” the third instalment above mentioned, that

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The bill of exceptions brings into the case by judgment of the supreme court of Porto the testimony and the rulings and charge of Rico, then known as the audiencia terri- the court. The facts developed are: Man. torial, dated the eighteenth day of Febru-uel Sixto sold a farm to the defendant Sarary, eighteen hundred and ninety-six, ren- ria for $16,000 Mexican money, payable in dered and entered in certain foreclosure pro- four equal instalments, with interest. A ceedings had before the said court on ap- mortgage was taken upon the property to peal from the court of first instance of secure the payment of the purchase price. Humacao; in which proceedings the defend- Manuel Sixto y Andino died November 27, ant and one Antonio Roig y Torruellas were 1892, leaving no issue except two natural plaintiffs, and which said proceedings the children, a daughter by the name of Maria said Roig, as owner of the third and fourth Belen Sixto y Melendez (hereinafter called instalments of the mortgage before men- Maria Belen), who lived in Vieques, and the tioned, sought to foreclose the same to the plaintiff in error, a son, who lived in the extent of the third instalment aforesaid, to-island of St. Thomas. After the death of gether with certain interest, the defendant Manuel Sixto, the daughter, Maria Belen, was found to be indebted to the said plain- filed her petition in the court of first intiff Roig in the amount of the third instal-stance of Humacao, Porto Rico, alleging ment aforesaid, together with the cor- that she was the only heir of Manuel Sixto, responding interest, and was ordered to pay deceased, and praying the court to declare the amount of said indebtedness so found her heir ab intestato according to the providue by the said judgment to the said Roig sions of $$ 980 and following of the Code of within the period of thirty days thereof; Porto Rico then in force. Upon June 22, and the said judgment further provided for 1893, the defendant in error, Sarria, paid execution to issue upon the noncompliance into court, where the petition of Maria with the terms thereof by the defendant. Belen was then pending, the first instalment Said judgment was duly entered before the due, with interest. On November 21, 1893, commencement of this suit, and is still in Maria Belen, by decree of the court, was adforce and effect. And the said defendant judged heir ab intestato of Manuel Sixto, thereupon, and in compliance with the said without prejudice to the rights of third parjudgment of the said court, thereafter paid ties. On the 25th of the same month the unto the said plaintiff Roig the amounts or- assets received by the administrator of Mandered to be paid by the said judgment, to uel Sixto, who had been appointed during wit, the amount of the third instalment of the proceeding, and the money paid into the aforesaid mortgage, together with the court by defendant in error, by order of the corresponding interest. And all of this the court, were made over to Maria Belen as sole defendant is ready to verify.”

heir ab intestato. On November 24, 1893, The additional or amended plea sets the plaintiff in error, Adolfo Sixto, preforth:

sented to the same court of first instance “And the defendant as to the second in his petition to be declared the heir of Manstalment aforesaid says that he has paid uel Sixto, deceased (jointly entitled with the same, together with the corresponding Maria Belen), invoking the exercise by the interest, on the 4th day of April, 1894, to court of "voluntary jurisdiction” under the one Belen Sixto, who was then the record section of the code whereby Maria Belen had owner of said mortgage credit, and who had been adjudged heir. To this petition Maria Belen answered, alleging that she had been | Sarria on June 2 by the judge of first induly declared the only heir of Manuel Sixto, stance until the resolution of the pending and that the plaintiff in error could only appeal." contest her right by a "contentious suit" This decision was certified to the court (expediente contencioso).

below in January, 1896, and in March folThe court sustained this contention, and lowing the solicitor of the plaintiff reSixto appealed, but later abandoned the ap- quested the court to notify Sarria and the peal, and on April 4, 1894, began a suit in registrar that the order of June 2, 1894, the form of a contentious proceeding, mak- was still in force, which was accordingly ing Maria Belen a party defendant, and done, and the defendant in error made reply praying the court to declare him (Adolfo thereto as follows: Sixto) an equal heir with her in the estate "Having received notice that the instalof Manuel Sixto, and asking the court to is- ment of the mortgage had been transferred sue an order to the registrar of property, to Mr. Antonio Roig, who has recorded said requiring him to make a cautionary entry transfer in the registry of property, and in the register concerning the property af- supposing that he will proceed to collect the fected by this suit, and also requiring the same judicially as he did the previous indefendant in error to retain, at the disposi- stalment, he is unable to accept the notifition of the court, the sums still owing to the cation, and he will appear before the artestate of Manuel Sixto. On June 2, 1894, diencia in the premises." a notice was accordingly issued to Sarria The registrar refused to comply with the and one to the registrar. The one to Sarria order for these reasons: "First, because, was issued on June 5, 1894, and the one to subsequent to the illegal cancelation of the the registrar on June 4, 1894. The defend cautionary notice, the property as well as ant, Maria Belen, being notified of these or the encumbrance had been transferred on ders, on June 26, 1894, answered the plain the registry; and, second, because the morttiff's petition, and in her answer prayed gage law contained no provision regarding that the interlocutory order of June 2, 1894, the form of carrying into effect such an orbe vacated and the notices canceled. Onder.” Thereafter the plaintiff asked the August 30, 1894, the prayer of defendant's court for a further order to the registrar, answer was granted by the court, and orders but this was denied. issued accordingly to the registrar and to The case proceeded to proof and argument, Sarria, and notice was given to the solicitor and on December 15, 1896, a final decision of the plaintiff. On September 1, 1894, the was' rendered, adverse to the plaintiff, from order reached the registrar, and the order which decree he took an appeal, which was of cancelation was made on the books on allowed “in both effects." The appeal was September 3, 1894. On September 3, 1894, also allowed from the order denying a the plaintiff filed a petition for an appeal further order to the registrar. On Febru. from the court's order of August 30, 1894, ary 2, 1897, the appellate court consolidated praying that it be allowed "in both effects," the appeals and ordered the suspension of that is (Code, § 383), with the effect of a further proceedings until final decision. review and stay of proceedings, but the In the meantime, on April 26, 1896, by an judge granted the same with one effect only, order of the court of the first instance, Sar. that is, for a review of the judgment. In ria was allowed to withdraw his deposit of the appellate court, on November 17, 1894, the third instalment. The order recited that court held that the allowance of both that one Roig had become the purchaser effects had been wrongfully denied, and or- from Maria Belen of the third and fourth dered that the appeal be considered as hav- instalments, and had recovered judgment in ing been taken for both effects. On De- the audiencia against Sarria for the third cember 22, 1894, the appellate court granted instalment, and found that Maria Belen had a further order, that Sarria, the defendant the right to transfer these instalments, and in error, be notified of his obligation under ordered a copy of the decree to be placed in the decree of June 2, 1894, which order was the records by the actuary. accordingly issued. On November 29, 1895, Thus the matter remained until after the the appellate court (audiencia) rendered its conclusion of the war with Spain, resulting decision on the merits of the appeal, and re- in a change of sovereignty of Porto Rico. versed the order of August 30, 1894, and re- By the military government, an order was affirmed the order of June 2, 1894, in its issued abolishing the territorial audiencia, validity and regularity. The court used the the appellate court aforesaid, creating in its following language:

place the district court of San Juan. On “That which was ordered in the decree ap- September 29, 1899, that court rendered its pealed from, regarding Mr. Laureano Sar- final decision upon both appeals, reversing ria, is hereby set aside, leaving in force the the action of the court below, and deciding requisition ordered and directed to said the plaintiff to be legally proved the heir of Manuel Sixto. The trial in the United against the other true heirs; and, as deStates district court in the present suit re- fendant was not required by any legal ausulted in a verdict and judgment for the de- thority to pay the first two payments to fendant.

Belen Sixto, and as the plaintiff is shown

in truth to have been an equal heir with Mr. N. B. K. Pettingill for plaintiff in Belen Sixto, the plaintiff is entitled to reerror.

cover one half of those two payments." No counsel opposed.

So far as this contention is concerned, we

think the court below was right. The secMr. Justice Day delivered the opinion of tions of the Code of Porto Rico (War Dethe court:

partment translation under which Maria It is evident from the foregoing statement Belen was declared the heir ab intestato of of facts that the controversy, as it appeared Manuel Sixto are as follows: in the United States district court, was re- “976. After the measures indispensable solved into the question whether Adolfo for the security of the property prescribed Sixto, who had been duly adjudged the co- in the foregoing section have been taken, heir with Maria Belen of Manuel Sixto, de- and without prejudice to including in the ceased, was entitled to recover one half of same proceedings the making of the inthe amount due on the mortgage debt which ventory, the designation of heirs ab intesthe defendant Sarria claimed to have dis- tato shall be proceeded with in a separate charged by legal payments. The recovery record. sought was for one half of the four instal- “977. This designation may also be made ments of purchase money due respectively at the instance of the interested parties, on the 15th day of May in the years from without the necessity of previously taking 1893 until 1896, inclusive. The defendant the steps mentioned, in cases in which they interposed different defenses to different in-are not necessary and in which the institustalments of the debt. We will proceed to tion of intestate proceedings is not reconsider them, together with the charge and quested. rulings of the court concerning the same. "978. Heirs ab intestato, who are de

Referring to the first and second instal- scendants of the deceased, may obtain a decments, we find it to be the contention of the laration of their rights by proving, with the plaintiff in error that Maria Belen, having proper documents or with the evidence obbeen adjudged heir ab intestato under a de- tainable, the death of the person whose escree which expressly reserved the rights of tate is in question, their relationship to the third parties, no payment could have been same, and with the evidence of witnesses lawfully made to her as against the rights that said person died intestate, and that of the plaintiff in error, and that if any such they, or the persons whom they designate, payment was made it was subject to the risk are his only heirs. that the subsequent-established rights of the "The services of a solicitor or attorney plaintiff in error might entitle him to re-are not necessary in order to present this cover from Sarria one half of such pay- claim. ments. Upon this subject the court charged “979. The deputy public prosecutor shall the jury:

be cited to appear at said proceeding, to "On February 15, 1894, she [Maria whom the record shall afterward be referred Belen] having been declared the heir, the for the period of six days for his report entry was made of that fact in the registry thereon. (of property). I say to you, as a matter of “Should he find the proof insufficient, a law, that that declaration of her heirship hearing shall be granted to the interested was without prejudice to the rights of third parties in order that they may cure the parties,--and that meant that if any other defect. person showed himself afterwards to be an “When the deputy public prosecutor reheir he was entitled to a proper proportion quests it, or the judge considers it necesof the estate; but so far as a collection of sary, the documents presented shall be comdebts, and so far as a proper attention to the pared with the originals. assets were concerned and the control of “980. When the foregoing steps have been them, she became entitled to attend to taken, the judge shall, without further pro

ceedings, make a ruling designating the Upon the same subject the plaintiff in er- heirs ab intestato should he deem it proper, ror had requested the court to charge: or he may refuse to make such declaration,

“As the ex parte decree declaring Belen reserving the rights of the claimants to inSixto the heir of Manuel Sixto expressly stitute an ordinary action. This ruling may saved the rights of third parties, that was be appealed from both for review and a stay notice to the defendant that any payment of proceedings. made to her was made at his peril as

"1000. After the declaration of heirs ab

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intestato has been made by a final judgment | fect of these proceedings is to permit the or ruling, the proceedings shall be continued heir ab intestato, after such final decision, according to the procedure prescribed for to receive and collect the estate. It may be testamentary proceedings.

that others will establish an interest in the “1001. The judge shall order that there property for which the heir will have to rebe delivered to the heirs instituted all the spond, and it is specially provided that, for property, books, and papers of the intestate, the purpose of transfer, property shall not and that the administrator render an ac- be deemed clear until after five years have count of his administration to them, the ju- elapsed. But this does not require that the dicial intervention ceasing."

collection of debts shall be delayed for a It is argued that this appointment of the like period, or that they shall be paid to the heir ab intestato is subject to the limita- legally declared heir or heirs, upon pain of tion that the rights of the heir are not fixed being required to respond to others who until five years have elapsed from the date may, within the limitation permitted, estabof the designation by the court proceedings, lish a right to the property. Such construcand in support of this contention certain tion would seem to be unreasonable, and we articles of the Mortgage Law of Porto Rico are cited to no authority that goes to that are cited:

extent. It is opposed to the practice of the “2. In the registries mentioned in the pre- civil law, upon which the Code of Porto ceding article shall be recorded:

Rico is based, in which system the heir by “1. Instruments transferring or declaring intestacy corresponded with the commonownership of realty, or of property rights law administrator, except that the Roman thereto.

heir was entitled to administer both the real “2. Instruments by which rights of use, and personal estate. Story, Confl. L. § 508. use and occupancy, emphyteusis, mortgage, In the present case the first instalment annuity, servitudes, and any others by which was due on May 15, 1893, and was paid into estates are created, acknowledged, modified, the court of first instance according to its or extinguished.

order, and a receipt given therefor under the “23. The instruments mentioned in arti- seal of the court, on June 22, 1893. This cles 2 and 5, which are not duly recorded or was done before any proceedings were instientered in the registry, cannot prejudice tuted by the plaintiff in error. The paythird persons.

ment was made under the order of the court, The record of real property and property and we see no reason why the defendant in rights acquired through an inheritance or error should not be discharged thereby. legacy shall not prejudice third persons un- As to the second instalment, other considtil five years have elapsed since the date erations apply. Sarria testified that while thereof, excepting in cases of testate or in this instalment fell due on May 15, 1894, he testate inheritances, legacies, and additions paid the same on April 1, 1894, to Maria thereto, when left to legal heirs.

Belen, which payment, he says, was sol“381. Property acquired through inherit- emnized by a notarial act duly acknowlance or legacy cannot be cleared until five edged. As to this payment, the court in its years have elapsed from the date of their charge took the view that the contentious record in the registry.”

suit of Adolfo Sixto was not commenced unBut we think this limitation of five years til April 4, 1894, of which fact Sarria was was intended to permit such heirs at law or not notified until June 5, 1894, and thereparties beneficially interested in the estate fore Maria Belen had the right to collect to assert their rights as against the heir and this payment. The suit of April 4, 1894, the property in his hands, and to prevent its was the one begun by Adolfo Sixto after the transfer except subject to the right of such decision against him in the court of first inpersons to assert their claims within the stance, holding that he could only contest permitted limitation. We are here dealing the right of Maria Belen by a contentious with the right to collect the assets, and the proceeding, from which the plaintiff in error Code provides-8$ 1000, 1001-that after took an appeal, but abandoned the same, and the designation of the heir or heirs ab in. on April 4, 1894, amended the suit to a contestato by a final judgment or ruling of the tentious proceeding, making Maria Belen a court the proceedings shall be continued ac- party defendant, and seeking for an order cording to the procedure prescribed for tes to the registrar to make a cautionary order tamentary proceedings, and the judge may touching the property in controversy, and order that all the property, books, and pa- also an order to the defendant in error repers of the intestate be turned over to the quiring him to retain at the disposition of heirs, and that the administrator render his the court whatever sums he owed to the esaccount of his administration of the estate, tate of Manuel Sixto, deceased. On the day and thereupon judicial intervention shall of the beginning of this contentious suit, cease. It seems to us manifest that the ef-'Sarria paid to Maria Belen, anticipating the maturity of the instalment by more I had the right to pay it over. Between the than a month, the amount which would have time the court decided the attachment and fallen due on the 15th day of May follow the time the appeal was allowed in the uping.

per court, Belen Sixto assigned to Roig the We think that, in view of the testimony third and fourth instalments. I say to you, produced, the validity of this payment as a matter of law, that there was nothing should have been submitted to the jury unto hinder her from doing that at that time; der proper instructions. The plaintiff testi- she had, in law, the right to do it.” fied that he was known to the defendant, The counsel for the plaintiff requested the and that the latter was well aware that he court, upon the same subject, to charge: was a son of Manuel Sixto, deceased. The "As it is shown by the uncontradicted evi. proceeding to declare his rights had been bedence that the judge of the court of first ingun. It is evident from a letter written to stance of Humacao was entirely without auhim on November 11, 1892, by Maria Belen, thority or jurisdiction to issue his order on that she recognized the plaintiff in error as August 30, 1894, directing the registrar to her brother, for in this letter she announces make annotation on his books of said order, the death of "our beloved father,” sub- said order to the registrar was void, and the scribed herself as "sister," and requests Six- annotation made by the registrar was void, to to come over to Vieques at once, as his and the former annotation remained in presence was necessary in order to collect force, which was notice to all the world, inmoney coming from the estate. Under these cluding this defendant, that the plaintiff circumstances, the question of whether Sar- had an interest in those payments such as ria had notice of the plaintiff in error's might be declared by the court; and, the rights and demands, and whether this was a court having afterwards decided that the valid payment, or was made in anticipation plaintiff here is entitled to a one-half interof the possible claims of Adolfo Sixto, with est in said estate, the plaintiff is now entiintent to deprive him of his rights, should tled to recover one half of the last two pay. have been left to the jury, instead of the in- ments, with interest." struction given, which practically required It appears that Adolfo Sixto was not a a finding for the defendant in error.

party to the suit between Roig and Sarria, As to the third and fourth instalments, in which it is declared that Roig was held the defendant claims to have paid these to entitled to recover the third instalment, and one Roig. It appears that these alleged if Sarria had notice of the pendency of the payments to Roig were evidenced by certain suit to establish the rights of Adolfo Sixto, notarial instruments, which became of rec- in such wise as to be bound by the result ord in the office of the registrar of deeds, thereof, he could not prevent Sixto’s recovand, as is recited in that record, Roig ap- ering an interest in the property by wrong. pears to have been the declared purchaser of fully paying it over in the proceedings to the third and fourth instalments by assign- which the plaintiff in error was not a party. ment from Maria Belen, and the court of The court below seems to have given its first instance, on April 25, 1896, at the in-charge upon this subject upon the theory stance of Sarria, permitted him to with that the order of August 30, 1894, was not draw the third instalment, and declared appealed from in such wise as to prevent Roig entitled to collect the third and fourth Sarria from paying the third and fourth ininstalments. Upon this subject the court stalments to the assignee, Roig, and it is charged the jury:

said that he was merely a garnishee in the "In this contentious suit by Adolfo Sixto suit, and had then received no notice not to against Belen, this defendant, Sarria, was pay over the money until the lower court ordered on June 2, 1894, to pay into court had decided whether he had the right to pay whatever money he might be owing. That it over. The payment of the third and order was served on Sarria on June 5, 1894, fourth instalments was made to Roig by and afterwards that court decided that Six- permitting Sarria, in the court of first into, the plaintiff in this suit, was not entitled stance, to withdraw the instalment which to attach this money. He obtained an ap- he had paid into court under the order of peal from that judgment, but not from that June 2, 1894. These instalments were paid portion of it that canceled the annotation to Roig on May 16, 1896, but in the attitude made in the registry of deeds of the attach of the suit then pending to establish the ment of that fund. Subsequently, on No- rights of Adolfo Sixto, and Sarria's knowlvember 17, 1894, an appeal was allowed in edge thereof, could the latter legally make the upper court from that portion of it, but these payments so as to conclude the rights no notice was given as to Sarria, who was of the plaintiff in error? It is true that the merely a garnishee in the suit, and who had lower court on August 30, 1894, had held in received no notice not to pay over the mon- favor of Maria Belen, vacating the notice ey until the lower court decided whether he sent to Sarria and the cautionary notices to

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