Colón López v. Registrar of Property of San Germán

44 P.R. 122

• Court: Supreme Court of Puerto Rico
• Decided: November 28, 1932
• Docket: No. 871
• Status: Published

Opinion

Mr. Justice Córdova Davila

delivered tbe opinion of tbe Court.

Hipólito Colón López instituted a possessory title proceeding in tbe Municipal Court of San German to obtain and record in bis name possession to 8 acres (cuerdas) of land, alleging that be purchased 3.33 acres thereof from Maria del Carmen, known as Cruz, Casiano widow of Mangual. He further alleges that said 3.33 acres are part of a piece of property 5% acres in area, recorded in tbe name of Pedro Echevarría Pérez. Tbe possessory title proceeding was approved by a judgment of tbe municipal court and a copy of that judgment was issued in order to record tbe property in tbe Eegistry of Property of San Germán in tbe name of tbe plaintiff, after cancellation therein of tbe record in conflict with tbe facts as proved. Tbe -registrar denied tbe record for tbe reasons set forth in tbe following decision:

‘ ‘ Tbe record of tbe aforesaid document is denied inasmuch as tbe property of 5% acres from which tbe tract of 3.33 acres is taken and which forms part of the estate described in this document appears recorded in the name of Emiliano, María Sabina, Pedro Al-cantara, María Eugenia, María de la Cruz, and Felipe de Jesús Colón, who were never notified as required by section 393 of the Mortgage Law, and who are persons other than the previous owner, Maria del Carmen, known as Cruz, Casiano. Cautionary notice for 120 days is entered in favor of the petitioner at volume 72, page 82 of San Germán, property number 3351, entry ‘O’, San Germán, March 14, 1932.”

Hipólito Colón López did not appeal from this decision. Several month later, however, he again presented to the registry of property the certified copy of the judgment of the court, together with a deed whereby the parties interested in the record of possession in the registry of property (with the exception of Emiliano Colón, who had been duly summoned in the proceeding’s) ratified the sale of said property by Maria del Carmen to Hipólito Colón López. The registrar refused to convert the cautionary notice into a final record, and Colón López appealed from that decision.

The registrar claims that if the requested record is made, the said property will appear as recorded in favor of the persons in whose names it is already recorded and also in the name of Hipólito Colón; and that, if such persons had been summoned in the possessory title proceeding, the Municipal Court would have ordered the cancellation of the conflicting record. The registrar further says that he can not consider for classification any document not previously offered in possessory title or dominion title proceedings.

No appeal having been taken from the first decision of the registrar, the only question to he decided now is as to whether the defect noted by the registrar in that decision has been cured by the new evidence submitted by the pétitioner.

The first, second, and third paragraphs of section 393 of the Mortgage' Law provide': '

“Registrars, before recording an estate for interest by virtue of the proceedings mentioned in the last three articles, shall carefully examine the registry, in order to ascertain whether it contains any record relating to tbe same real property which may be totally or partially cancelled as a consequence of such record.

“If they should find a record of acquisition of ownership or possession uneancelled, which is in contradiction with the fact of the possession as established by judicial proceedings, they shall suspend the record, enter a cautionary notice, if the person interested should request it, and forward a copy of the record to the judge who may have approved the proceedings.

“In view thereof, after citation and hearing of the persons who, according to said entry, may have an interest in the real property, the judge shall affirm or revoke the order of approval, informing the registrar in either event of the decision rendered, in order that he may accordingly make the record or cancel the cautionary notice. ’ ’

The Mortgage Law clearly prescribes tbe procedure to be followed in order to obtain tbe results sought by tbe petitioner. Tbe judge, and not tbe registrar, is tbe proper officer to hear tbe interested parties when be is presented with copy of tbe records in conflict with tbe possession whose registration is sought. Tbe evidence in support of tbe approval of possessory title proceedings should receive judicial consideration. To rule otherwise would vest tbe registrar with tbe judicial power specifically granted by law to municipal judges. It does not appear from tbe judgment rendered by tbe Municipal Court of San Germán that the persons in whose favor tbe possession of tbe property is recorded, except Emiliano Colón, were ever summoned to appear in tbe possessory title proceeding.

Tbe decision appealed from will be affirmed.