Argument for Plaintiff in Error.

233 U.S.

dence; as to excluding admission of Sanjurjo; excluding the statement as to property inherited by Altagracia Nadal; in the admission of the statement as to the liquidation of community property; the last inquiry is not within the issues nor is it material.

There was error in giving the peremptory charge. The plaintiff had established a prima facie case and defendant did not overcome it. There was error in overruling the demurrer to the special defense and holding the same sufficient to warrant directing a verdict for defendant.

The allegations were not sufficient to constitute estoppel. In support of these contentions, see Adams v. Akerlund, 168 Illinois, 632; Ambrose v. Moore, 46 Washington, 463; Arnett v. Reade, 220 U. S. 311; Boscio v. Registrar, 14 P. R. Fed. Rep. 605; Caballero v. Pomales, 17 P. R. Fed. Rep. 691; Caballero v. Registrar, 12 P. R. Fed. Rep. 214; Crary v. Dye, 208 U. S. 515; Dooley v. Registrar, 12 P. R. Fed. Rep. 202; Feliu v. Registrar, 16 P. R. Fed. Rep. 728; Fernandez v. Gutierrez, 10 P. R. Fed. Rep. 59; Gonzalez v. Ortiz, 17 P. R. Fed. Rep. 563; Garrozi v. Dastas, 204 U. S. 64; Guies v. Lawrence, 2 La. Ann. 226; Hanrick v. Patrick, 119 U. S. 156; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327; Rodriguez v. Registrar, 14 P. R. Fed. Rep. 754; Royal Ins. Co. v. Martin, 192 U. S. 149; Sturm v. Boker, 150 U. S. 312; United States v. Turner, 11 How. 663; Vidal v. Registrar, 12 P. R. Fed. Rep. 198; Warburton v. White, 176 U. S. 484; Wiser v. Lawler, 189 U. S. 260.

While the Supreme Court of Porto Rico in Busó v. Busó held that the Revised Civil Code went into effect July 1, 1902, and that § 1328 of that Code was a new section inserted therein, which changed the law as it had previously obtained and first gave to the wife the power, by withholding her consent, to prevent the alienation of the real property belonging to the conjugal partnership, an examination of Busó v. Busó will show that the Supreme Court of Porto Rico did not investigate the ques

233 U. S.

Argument for Defendant in Error.

tion for itself as an independent legal proposition, but was merely misled by the recital contained in the certificate of the Secretary of Porto Rico prefixed to the official printed volume of the Codes. See Morales v. Registrar, 16 P. R. Fed. Rep. 109, 114. See also § 41, Political Code, that every statute, unless a different time is prescribed therein, takes effect from its passage.

This section is but declaratory of the law as uniformly settled in the absence of any express provision to the contrary. Matthews v. Zane, 7 Wheat. 164, 211; Memphis v. United States, 97 U. S. 293, 296; Seven Hickory v. Ellery, 103 U.S. 423; Louisville v. Savings Bank, 104 U. S. 476; Robertson v. Bradbury, 132 U. S. 491; Ortega v. Lara, 202 U.S. 339.

The Revised Civil Code was approved by the governor of Porto Rico on March 1, 1902, and went into effect on that day as a matter of law.

The validating act of February 24, 1903, was not effectual. It is clearly an attempt at retroactive legislation which is invalid, if applied to the conveyance in question, because it divests the settled rights of property. Wilkinson v. Leland, 2 Pet. 661; Mitchell v. Campbell, 19 Oregon, 198, 207; Showk v. Brown, 61 Pa. St. 320; Brinton v. Seevers, 12 Iowa, 389; Boston F. Co. v. Condit, 19 N. J. Eq. 394, 399; Houston & T. C. R. Co. v. Texas, 170 U. S. 243, 261. See also Gunn v. Barry, 15 Wall. 610, 622; Arnett v. Reade, 220 U. S. 311, 320.

The meaning of paragraph seven of the will is not doubtful, nor is the doctrine of innocent purchaser applicable. Division of community property is not necessarily a matter of probate jurisdiction.

As to Garzot v. Rubio, 209 U. S. 283, see Arnett v. Reade, 220 U. S. 311, and other cases cited supra.

Mr. Felix Frankfurter, with whom Mr. Wolcott H. Pitkin, Jr., Attorney General of Porto Rico, was on the brief, for defendant in error:

VOL. CCXXXIII-29

The new Civil Code did not go into effect until July 1, 1902, and the controlling conveyance of June 2, 1902, under the then existing Spanish Civil Code was properly made by the husband without the consent of the wife.

The will under which plaintiff claims conveys to him no interest in "Carmen."

As a bona fide purchaser for value ("third person") the People of Porto Rico could rely on the record title and took a clear title, for no defect or cautionary notice appeared in the registry against "Carmen."

Plaintiff's claim involves a preceding liquidation of a community between husband and wife. This is solely a subject-matter for the local probate court and beyond the jurisdiction of the District Court of the United States for Porto Rico.

The exceptions to rulings on evidence are without merit. In support of these contentions, see Amadeo v. Registrar, 3 P. R. Fed. Rep. 263; Busó v. Busó, 16 P. R. Fed. Rep. 864; Castro v. Registrar, 7 P. R. Fed. Rep. 458, 461; Escalona v. Registrar, 9 P. R. Fed. Rep. 523; Garrozi v. Dastas, 204 U. S. 64, 78; Garzot v. de Rubio, 209 U. S. 283; Morales v. Registrar, 16 P. R. Fed. Rep. 109, 111; Ortega v. Lara, 202 U. S. 339, 343; Para v. Registrar, 2 P. R. Fed. Rep. 592; Riera v. Registrar, 11 P. R. Fed. Rep. 223; Roca v. Banco Territorial, 6 P. R. Fed. Rep. 339, 351, 353, 355; Santa Fe Central Ry. Co. v. Friday, 232 U. S. 694.

MR. JUSTICE HOLMES delivered the opinion of the

court.

This is a suit by the plaintiff in error to establish his title to one-half interest in a plantation called 'Carmen,' as devisee of his aunt, Altagracia Nadal. It is alleged that the plantation was bought with the separate money of Altagracia Nadal by her husband, after marriage; that she became the owner of one undivided half, subject to

the administration of her husband until the termination of the conjugal partnership, and that this half passed to her devisee at her death. The complaint admits that after the purchase the husband purported to convey the whole plantation to a third person but alleges that the wife did not consent to the conveyance and that therefore her rights remained.

It appears that on May 1, 1901, Altagracia Nadal brought a suit against her husband for an account of her paraphernal property, alleging among other things, that he had recorded in his favor the estate Carmen, acquired by a deed of October 25, 1900, and praying judgment that it was her private property because bought with her separate funds, and for a cautionary notice to be entered in the registry. On November 10, 1901, a settlement was made by which it was stated that the husband had received ten thousand dollars as the product of the wife's paraphernal property, had paid her five thousand dollars and given a mortgage for the other five thousand, and in view thereof she “renounces all the rights and interests which she might have against her husband because of the facts stated in the said complaint." The instrument was presented to the court with a prayer that the court would hold that the parties had desisted from continuing the action and that the cautionary notice be cancelled, which was granted on November 21. There had been conveyances of Carmen, without consideration, it was testified; there was a reconveyance to the husband, and on June 2, 1902, he conveyed it, without his wife's consent, to Elisa Sanjurjo, who on August 29 of the same year conveyed it to the People of Porto Rico, for valuable consideration, there being then no cautionary notice on record. On April 10, 1906, the wife assigned to the plaintiff the mortgage received by her on the above settlement, and on April 27, 1906, made the will under which the plaintiff claims.

By this will the testatrix left to the plaintiff a mortgage

described, with all its rights and actions (asi como todos sus derechos y acciones) and also the mortgage assigned on April 10, in case the assignment should not have been effective in favor of her said nephew 'Rafael Martinez y Nadal, todos los derechos y acciones que puedan caberme en los bienes mios que estén á nombre de mi esposo Isidro Fernandez Sanjurjo, en virtud de la transacción celebrada con mi dicho esposo.'

The plaintiff's claim is founded on these last words. The official translation accepted by the court reads that she leaves the mortgage "in case the assignment shall not have become effective, all the rights and actions which may pertain to me in my properties which are in the name of my husband Isidro Fernandez Sanjurjo, by virtue of the settlement made with my said husband." The plaintiff contends that the word 'and' should be read in before 'all the rights and actions' on the notion that a y has dropped out or should be implied. He argues that the estate Carmen was not embraced in the settlement, because community property in which the wife had and retained a community interest and that the last words devise it—en virtud de signifying more nearly in spite of the settlement than by virtue of it.

On the other hand it is argued that the settlement renounced all claim by the wife to Carmen if any she had; that the last words of the will have an import similar to that of those used in connection with the previous mortgage; that en virtud de means by virtue of; that if the wife had a claim it was outside the settlement and those words would not describe it, even if at the date of the will the estate had still stood in the husband's name, where notoriously and as she well knew it had not stood for years. The government also claims as a bona fide purchaser without notice. It is obvious, we think, from this summary that these arguments against the plaintiff's claim are hard to meet, and they were not met. But it is