MR. Justice Travieso
delivered the opinion of the court.
José Costa Bianchi by a will designated as his heirs his acknowledged natural children Julia, José, Antonia, Teodora, [669]*669Domingo, and Inocencio Costa Beltrán. Upon the death of the testator, Teodora, Domingo, and Inocencio, who were then minors remained nnder the patria potestas and tutorship of their natural mother Lorenza Beltrán.
Among the properties left by the deceased there was one of 109 acres {cuerdas), set apart to the growing of coffee. In the deed- of partition said property was valuated at $5,450, and it was allotted to the six heirs in the following undivided shares:
To José an undivided interest of $650, and to each of the other five an undivided interest of $950 in the value fixed on the realty.
On November 4, 1926, Lorenza Beltrán, as mother and guardian of her minor children Teodora, Domingo, and Ino-cencio, applied to the District Court of Ponce, for judicial authorization for her, together with the other two co-owners Julia and Antonio Beltrán, to borrow $2,500, to be secured by a mortgage on the property, of which amount $1,500 would belong to the infants, in order to purchase with that loan, and for the benefit of the three minor children, the undivided interest held by José Costa Beltrán in the property, for the sum of $2,000, and to use the remaining $500 to repair the damage done to the property b^ a hurricane. It was alleged in the petition that co-owner José Costa Beltrán did not wish to continue as joint owner of the property; that there was someone willing to pay $2,000 for his share; that it would be dangerous to take in as co-owner a stranger to the family; that the property was so small that it could not be divided without an exceedingly large depreciation; and that the property had been assessed, for tax purposes, at $8,500. At the hearing held on November 5, 1926, the petitioning mother testified that her son wanted to separate and sell his share in the estate to a Corsican named Salieetti, whom his other sons did not want as a co-owner; that the Banco Cafetero had assessed the property at $16,000; that José asked $2,000 for his share. Julia Costa Beltrán testified [670]*670to the same effect as her mother, adding that Jose’s share was one-eighth of the property and that it was easily worth $2,000; and that they needed the loan “in order to buy my brother’s share and $500 to repair the coffee plantation.” The minors Teodora and Domingo testified giving their consent to the authorization of the loan. The district attorney intervened in the proceedings and gave his approval.
On November 10, 1926, the district court entered an order granting the requested authorization, and providing as follows :
“And to purchase for $2,000, with the proceeds of this loan, and for the benefit of the said minors and co-owners, the undivided interest that José Costa Beltrán has in the same rural property, and to apply the remaining $500 to repair the damage caused by last year’s hurricane to the coffee plantation in said property.”
By a deed dated November 11, 1926, Lorenza Beltrán, the mother of the minor children, acting in pursuance of the judicial authority granted to her by the district court, together with Julia and Antonio Costa Beltrán constituted a mortgage over the property in question in favor of Dr. Francisco B. de Jesús, to secure the payment of his loan for $2,500. In said deed it Yjas expressly stated that each of the five brothers and sisters who were parties thereto was the owner of the undivided interest that had been allotted to him or her in the partition proceeds of the estate, and it was added:
- “And the other undivided interest, amounting to $650 of the total value of the property, was acquired by Julia Costa Beltrán by purchase from the other co-owner, José Costa Beltrán by deed number 106, executed before the subscribing notary on October 23, 1926. These purchases have not been yet recorded in the Registry of Property of the District, but this requisite will be complied with.”
In the second paragraph of said mortgage deed it was stated that a certified copy of the order of the court authorizing the loan and the mortgage on behalf of the minors, was attached at the end of the deed in order to insert it in the copy of the instrument. It appears from the record that this [671]*671was done in the copy issued to the mortgage creditor, De Jesús, which was recorded on December 29, 1926.
Subsequent to the constitution of the said mortgage, Julia Costa y Beltrán, who on October 23, 1926, had purchased her brother’s undivided interest, sold one-fifth thereof to each of her three minor brothers, represented by their mother Lo-renza Beltrán, and to her other brother Antonio, by a deed dated December 14, 1926. The vendor stated that she had acquired that undivided interest for herself and for her four brothers and sisters. The price paid by each of the purchasers was $400, that is, the same amount for which Julia had purchased it from José.
On the following day, December 15, 1926, Antonio Costa Beltrán, his three younger brothers and sister, represented by their mother Lorenza Beltrán, and Julia Costa Beltrán, executed a deed for the purpose of dissolving the community existing between them, as they thought that the property would depreciate too much if divided in specie among the co-owners. By the terms of that deed, Lorenza Beltrán awarded to Julia Costa Beltrán the undivided interests held by said Teodora, Domingo, and Inocencio in the property, for the price of $1,080, payable to each minor. Said price covered the value of the interest awarded each infant, that is, $950, plus one-fifth of the undivided interest, amounting to $650, purchased from José, or $130, which makes a total of $1,080 for each condominium. Antonio sold his share to Julia under similar conditions. It was stated in the deed that the partition was made without an authorization from the district court because the same was deemed to be unnecessary, according to the holding of this Supreme Court in the ease of Martínez et al. v. The Registrar of Caguas, 23 P.R.R. 330.
The above award was made subject to the mortgage held "by defendant De Jesús.
[672]*672Julia Costa Beltrán, as owner of the entire property, on July 7, 1927, mortgaged the same to Francisco R. de Jesús to secure a loan for $1,700, maturing on July 7, 1929.
On February 21, 1929, the defendant Francisco R. de Jesus brought summary mortgage foreclosure proceeding to recover on the two mortgages executed in his favor, and directed the complaint against the heirs of Julia Costa Bel-trán, who were her natural mother, Lorenza Beltrán, and her husband, Luciano S. Caraballo. After following the procedure provided by law, the property was awarded to Francisco R. de Jesús and recorded in his name. On November 20,1929, De Jesús sold it to the other defendant, Julián Piazza Canosi.
In the complaint filed by the minors, prayer was made to annul the mortgages, the conveyances, the proceedings, and the acts above stated; to have defendant Piazza adjudged to return to the plaintiffs their undivided interests in the property and to deliver to them the possession of the realty; to have both defendants adjudged to render an account and to pay to the plaintiffs the rents and profits produced by the property during the time it was in their possession; and to have the defendants taxed with costs, disbursements, and attorney’s fees.
The prayer for annulment of the first mortgage on the undivided interests of the three minors was based on the claim that the judicial authorization was granted for the purchase of the undivided interest of José Costa Beltrán, and not for the purchase made from Julia Costa Beltrán; that from the terms of the mortgage deed, from the copy of the judicial authorization that was attached thereto, and from the registry of property, the defendant De Jesús had notice of the fact that the contract of loan and mortgage that he entered into with the mother of the three minors had not been authorized by the court, and that the transaction approved by the court could not be carried out because on the date that [673]*673the mortgage was executed José was no longer the owner of an interest in the realty, as he had already sold it to Julia.
The nullity of the conveyance of the undivided interests of the minors to their sister Julia was álso prayed for, on the alleged ground that the said conveyance was made without judicial authorization, and consequently, the nullity of the mortgage executed by Julia in favor of the defendant De Jesús was also requested.
The alleged nullity of the summary foreclosure proceeding was based on the nullity of the foreclosed credits and on the additional allegation that the sale of the property was’, advertised in a local newspaper only on the 5th, 12th, 19th,. and 23d of April, 1929, which facts appear in the record of’ the judicial sale.
As a ground for the nullity of the conveyance made by De Jesús to Piazza, it was alleged that the latter had notice from the registry of the fact that his vendor did not have a valid legal title.
The defenses set up by the defendant De Jesús can be summarized as follows:
1. That the judicial authorization for the loan of $2,500 was granted on the ground that the property could not he divided in-species without it suffering a great depreciation, because of its small size.
2. That for the validity of the deed of dissolution of the community no judicial authorization was required, in accordance with the decision in Martínez et al. v. The Registrar of Caguas, 23 P.R.R. 330; and that the grounds on which the co-owners relied to make the partition, as to the interests of the minors, without judicial authorization were set forth in the record made of the deed in favor of Julia Costa Beltrán.
3. That the defendant De Jesús has not received any rents or profits because the property has produced none, inasmuch as it was totally ruined by the San Felipe hurricane.
4. That the sum of $2,500 loaned by him to the mother of the minors was applied by her to the purposes authorized by the court, and that in any event the minors did acquire the interest held by [674]*674their brother José, each one paying his or her proportionate share of the $2,500 loan.
5. That at the time the second mortgage for $1,700 was executed, Julia Costa Beltran was the owner of the entire property, as she had acquired it by virtue of the deed of partition; that said deed was valid even though it lacked judicial authorization; that the defendant’ De jesús did not participate in said deed, and that he is a third person who acquired his mortgage title in good faith, relying on the entries in the registry.
6. That the second mortgage was canceled in fact and in law, in accordance with the provisions of section 125 of the Mortgage Law and subdivision 3, section 132 of the Mortgage Law Regulations, as the proceeds of the auction sale did not cover the amount of the first mortgage.
The defendant De Jesús in Ms cross complaint prayed that in case the nullities sought by the plaintiffs should be decreed, that they be adjudged to return to De Jesús the amounts by which said plaintiffs benefited themselves, to wit :
1. One-half of the principal of the first mortgage for $2,500, and of the interest thereon, expenses, and attorney’s fees, or the total sum of $2,197.50.
2. One-half of the principal amount, interest thereon, and additional credit pertaining to the second mortgage, or the total sum of $1,496.00.
It was further prayed that the judgment for said sums should have a preferred claim on three-fifths of the property, or that the payment of said sums be a condition precedent to dhe return of said undivided interests to the plaintiffs.
Defendant Julián Piazza Canosi denied for lack of information and belief the essential facts of the complaint; and :as a special defense he set up his status as a third person, •because it did not appear from the registry whether or not judicial authorization had been granted to the minors to dissolve the cotenancy, and because the marshal’s deed to De Jesús appeared validly recorded in the registry. In his cross complaint he requested that in case the court order should -decree the annulments prayed for by the plaintiffs, the latter [675]*675be adjudged to return to the defendant Piazza three-fifths of the sum of $2,254.64 spent by him in improving the property and paying taxes thereon, said three-fifths amounting to $1,292.80; and that said sum be declared a preferred lien on the undivided interests of the plaintiffs, or that the payment thereof be imposed as a condition precedent to the return of the property.
After the demurrers to the cross complaint had been overruled, the defendants answered the cross complaints, and alleged, among other things, that “none of the minors profited by either the whole or any part of the aforesaid loan, which was, at the time it was contracted for, entirely unnecessary for the benefit of said minors and was not used for their benefit”; and that hence, they are not bound to return the amount of said loan; that the minors were in no way benefited by the conveyance of their undivided interests to Julia Costa Beltrán, executed by their mother without judicial authorization, as no price was paid therefor.
After the case was tried, the lower court rendered judgment dismissing the complaint and the cross complaints on the merits, without any special imposition as to costs. The plaintiffs appealed and assigned as an only error of the trial court its action in dismissing the complaint.
We have carefully examined the transcript of the evidence which contains 363 pages. From the evidence introduced by both parties which was mainly documentary, the facts that we have heretofore chronologically stated appear to have been proved.
The questions that we must decide are the following:
1st. Are the grounds urged in support of the nullity of the mortgage that was executed by the mother of the infants in favor of De Jesús, legally and equitably sufficient?
We are of the opinion that a sufficient ground to decree such nullity has not been shown. The fundamental purpose sought to be attained by the making of a loan was to protect [676]*676the minors from the danger of a sale by one of the co-owners, José, of his undivided interest to a person foreign to the family. To avoid that danger, the co-owner Julia purchased José’s undivided share for $2,000, with the intention of keeping one-fifth for herself and transferring to her brothers and sister the remaining four-fifths for the same price paid by her to José. With the money advanced by the defendant De Jesús to the mother of the minors, she purchased from Julia, for the benefit of said minors, three-fifths of the undivided interest which the co-owner José had threatened to sell to a stranger, at the price of $400 for each minor. By the terms of the mortgage contract, the three infant co-owners bound themselves to repay $1,500 of the $2,500 loaned, of which $2,000 were to be used in purchasing the undivided share owned by José, and $500 in improving the property. The other co-owners, Julia and Antonio, also encumbered their undivided share in an equal proportion. In other words, each of the five co-owners agreed to repay $500 of the total sum of $2,500. And each of them obtained in return for their obligation amounting to $500, one-fifth of the undivided interest that belonged to José, which was assessed at $400, plus $100 worth of improvements on the property. It is evident that the fundamental purpose of the judicial authorization — the acquisition of José’s undivided interest for the benefit of the other five co-owners — was fulfilled. From the facts proved it does not appear that there was an intention on the part of the mortgage creditor to defraud the minors. The rights and interest of the minors have not been in the least injured by the loan transacted in the manner in which this one was carried out. On the contrary, each one of them increased his share of the total value of the property —assessed by all the parties at $16,000 —in an amount equal to that of the obligation contracted by each in virtue of the mortgage. The fact that Julia, rather than José directly, conveyed to the minors the undivided share [677]*677that the court authorized them to purchase, can in no way affect the good faith with which the mortgage creditor evidently acted. Since the legal purpose of the transaction was attained, a variance existing in the means used to effect it, in the absence of fraud or confabulation, chargeable to the creditor, is in our opinion insufficient to serve as basis for a decoration of nullity of the first mortgage. The trial court did not err in refusing the prayer seeking such nullity.
2d. Are there vices or defects in the deed of sale of the undivided interests of the minors, executed by the mother in favor of the co-owner Julia, which would be legally sufficient to decree their nullity to the prejudice of the defendants De Jesús and Piazza?
The plaintiffs-appellants maintain that said deed is null and void because it was not executed pursuant to a judicial authorization, and that such authorization was indispensable inasmuch as three of the co-owners were minors.
In our Civil Code (1911 ed.) we find the following provisions :
“Sec. 413. The rules relating to the division of inheritances shall apply to the division amongst part-owners.
“Sec. 1027. If the minors should be subject to the parental authority, and are represented in the division by the father or by the mother, in a proper case, neither judicial intervention nor approval shall be required.
“See. 1029. If a thing should be indivisible or should become considerably impaired by being divided, it may be awarded to one of the heirs under condition of paying to the others the difference in cash.
“But it shall be sufficient if a single one of the heirs requests its sale at public auction, outside bidders being admitted in order that it may take place.”
In the case of Sánchez v. Registrar of Property, 21 P.R.R. 453, and later in that of Martínez et al. v. The Registrar of Caguas, 23 P.R.R. 330, this Supreme Court upheld the validity of certain deeds that had been executed under the same conditions existing in the present case, that is, by [678]*678the mother with patria potestas, in the name of the minors, and without judicial intervention or approval; and it held that the judicial approval required hy section 229 of the Civil Code, amended by Act No. 33 of March 9, 1911, in order to alienate property belonging to a minor is not applicable to a partition of common property in which infants are interested, because such partition should be governed by section 413 in connection with section 1027 of the said code, which provides that if the minors should be subject to parental authority and are represented by the father or by the mother, .neither judicial intervention or approval shall be required.
It should be noted that in the case of Martínez et al. v. The Registrar of Caguas, supra, the following was stated: “Two minor heirs were represented in the instrument by their mother with patria potestas, she having no interest in the estate.”
The case of Martínez et al. v. The Registrar of Caguas, supra, was decided by this court on January 11, 1916. The deed of partition of common property involved in the case at bar was executed on December 15, 1926, and recorded in the registry on January 18, 1927. In the record made of the whole property in the name of the grantee Julia Costa Beltrán, it was said:
“It is declared that the third clause of the deed reads as follows: This partition made in the manner above stated is based on the decision in the case of Martínez et al. v. The Registrar of Caguas, Puerto Rico Reports, Volume 23, p. 330.”
The facts in Martinez et al. v. The Registrar of Caguas, were practically the same as those , of the instant case, with the only difference that here we are dealing with a rural property whereas there an urban property was involved. In both cases the mother who represented the minors had no personal interest in the estate; and the whole of the property was transferred to one of the co-owners, and the remaining ones received in cash the amount of their respective [679]*679shares. The decision in Martinez et al. v. The Registrar of Caguas, supra, confirmed and followed the one rendered by this court in the case of Sánchez v. Registrar of Property, supra, and both decisions were in accord with the construction given by the commentators and the Spanish courts to the sections of the Spanish Civil Code equivalent to those of our code already cited. See: Scaevola, vol. 18, pp. 296 to 320; Manresa, vol. 7, pp. 651-661.
Prior to our decision in Martínez et al. v. The Registrar of Caguas, supra, on June 1, 1915, the Supreme Court of the United States had rendered its decision in the case of Longpré v. Díaz, 237 U. S. 512, 59 Law. Ed. 1080, affirming the judgment rendered in that ease by the United States District Court for the District of Puerto Rico. In that case the mother of a minor and his attorney ad litem had entered into a private contract which was later embodied in a public deed, without first securing judicial authorization therefor. By that contract they conveyed the property of the minor to a creditor in satisfaction of certain debts. The contract, entitled “Partition of Inheritance,” was approved by the district court after its execution. In spite of that approval a posteriori, the Supreme Court decreed its nullity, holding that:
“While it is obvious that the property left by the deceased and which passed to his heir, the minor, was bound for the debts of the deceased and subject to be disposed of under lawful proceedings to pay the same, we think it is indisputably apparent that there was an absolute want of authority on the part of the widow and guardian ad litem to give the property of the minor in payment of an alleged debt of the estate of the father. We say this because the so-called partition and the sale of the property by a mere private agreement were directly in the teeth of the requirements of the law concerning the administration and sale of a minor’s property and therefore such mere private sale created no rights whatever conflicting with the title vested in the minor in virtue of his heirship.” Longpré v. Díaz, 237 U. S. 512.
[680]*680In deciding the case of Martínes et al. v. The Registrar of Caguas, supra, this Supreme Court did not take into account the decision of the Federal Supreme Court which we have just cited; hut it did so, and adopted the doctrine of that decision as the one applicable to cases of this kind, in Del Rosario et al. v. Rucabado et al., 23 P.R.R. 438, decided on January 28, 1916. In that case the property of the minors had been conveyed by the mother, without judicial authorization therefor, to the creditors of the deceased. The original decision upheld the validity of the conveyance, but on a motion for rehearing, the same was reconsidered and the court speaking through Mr. Justice Del Toro said:
“A perusal of the foregoing suffices to show that as to the fundamental question of the validity or invalidity of conveyances made directly to creditors in satisfaction of their claims in the partition of an estate in which minors are interested without first obtaining the authorization of the court generally required by law for the sale of property belonging to minors, the opinion of the Supreme Court of the United States is in conflict with the opinion delivered by the Supreme Court of Porto Rico a few days before. The Supreme Court of the United States, which has appellate jurisdiction over the Supreme Court of Porto Rico, held that such conveyances are null and void and its-doctrine must prevail no matter what opinion all or some of the justices of this court may continue to hold.”
Subsequently, in Milán v. Registrar, 41 P.R.R. 98, Mercado v. Registrar, 41 P.R.R. 521, and Burset v. Registrar, 49 P.R.R. 47, this court decided that where a property held in common is awarded to one of the co-owners, such a transaction is not a partition of the common property, but an alienation of tbe property which requires both judicial authorization and the public auction provided by section 388 of the Civil Code in order to make it binding where any of the co-owners is not of age.
The sale of the undivided interest of the minors by their mother to the other co-owner, Julia, was made not 'Only without judicial authorization and without compliance [681]*681with the requirement of a public sale, but to the prejudice of the estate of said minors. They were the owners of three-fifths of a property, the valne of which had been fixed by the bank and the parties at $16,000; and the very grantee Jnlia admitted said valuation when she paid $2,000, for the undivided one-eighth interest owned by José in the property. The shares of the three minors had an aggregate value of $9,600 and were answerable for $1,500 of the amount of the first mortgage held by defendant De Jesús. By the terms of the grant in controversy, Julia also acquired the minors’ interests for a price of $1,080 payable to each infant, and assumed the obligation of paying $1,500 to Be Jesús. The minors Avere divested of property worth $9,600 for a price of $4,740, thus forcing upon them a loss which amounted to $4,860. It is in order to avoid transactions that are prejudicial to the interests of the minors, like the one effected in the present case, that the laAV and the jurisprudence in this jurisdiction require that the minors shall be protected by judicial intervention and by a sale to the highest bidder. When the $1,700 loan was made to Julia Costa Beltrán, the defendant De Jesús had notice from the registry of the fact that the title of the borrower Avas null and void as to the three-fifths that she had purchased from the minors, inasmuch as the legal requisites had not been complied with. His defense to the effect that he was a third person is not supported by the facts. When the so-called partition was made, the Supreme Court of the United States had already established the doctrine set forth in Longpré v. Diaz, supra, declaring the nullity of a partition of this character where the judicial authorization is lacking.
We must hold, therefore, that the sale of the undivided interests of the minors is null and void, -and so is the mortgage of $1,700 executed by Julia Beltrán as to three-fifths of the property. The lower court erred in holding said acts valid and binding upon the infant plaintiffs.
[682]*682 3d. The nullity of the summary mortgage foreclosure proceeding whereby the defendant De Jesús sought to foreclose the two mortgage credits is a necessary consequence of the declaration of nullity regarding the $1,700 credit. The plaintiffs, who have been at all times the owners of three-fifths of the property, the sale by their mother being null and void, were not served with a demand for payment of the first mortgage that was being foreclosed together with the second one for $1,700, and were not bound by the judgment of foreclosure. We must, therefore, hold the foreclosure proceeding, the auction sale, and the award of the property to the defendant De Jesús to be null and void, and similarly as to the sale made by the latter to the defendant Piazza, who can not set up either his status as a third person, inasmuch as he purchased the property with notice from the registry of the nullity of his vendor’s title.
4th. The claim for $2,254.64 made by defendant Piazza in his cross complaint, for repairs and improvements made by him on the property and for taxes paid by him, is not supported by any evidence. The court in its opinion stated that the parties had stipulated that in case such cross complaint were sustained the evidence on those points would be introduced fifteen days after the said judgment should become final. Since the complaint and the cross complaint were dismissed on the merits, no such evidence was introduced. We are not, therefore, in a position to fix the amount of the claim. The only thing we can and do 'decide is that, since defendant Piazza is not a bona fide owner, he has a right to recover from the plaintiffs three-fifths of the expenses incurred by him in the preservation of the property and in the payment of the taxes on the realty, subject, of course, to the obligation of returning to the plaintiffs three-fifths of the rents and profits derived by him from the property during the time he was in possession thereof, and from the date on which the action of annulment was commenced.
[683]*683For the foregoing reasons the judgment rendered by the District Court of Ponce on June 2, 1933, should he vacated, and another rendered instead containing the following pronouncements :
1. Upholding the validity and subsistence of the mortgage for $2,500 executed by the mother of the plaintiffs in favor of the defendant Francisco R. de Jesús; and the undivided interests of. the plaintiffs, amounting to three-fifths of the property, must answer for $1,500 of the principal sum, with interest thereon at the stipulated rate of 12 per cent per annum, from November 11, 1928, until the final payment thereof, without costs.
2. Decreeing the nullity and nonexistence, as to the interests held by the plaintiffs, set forth in deed number 131, executed in the city of Ponce on November 15, 1926, before Notary Cipriano Olivieri, and ordering the cancelation of the record thereof made in the registry, at folio 181, volume 90 of Adjuntas, property number 1173, quintuple, 14th inscription.
3. Decreeing the nullity and nonexistence, as to the interests held by the plaintiffs, of the mortgage for $1,700 executed by Julia Costa Beltrán in favor of Francisco R. de Jesús by deed number 87, dated July 7, 1927; and ordering the cancelation, as to the interests of the plaintiffs, of the corresponding record made at folio 183, back, of volume 90 of Adjuntas, property number 1173, quintuple, 16th inscription.
4. Decreeing the nullity, as to the undivided interests of the plaintiffs, of the summary mortgage foreclosure proceeding, civil case No. 3586, prosecuted in the District Court of Ponce by Francisco de Jesús y Ruiz de Porras against the Heirs of Julia Costa Beltrán, for the foreclosure of the two mortgages; of the auction sale and award of the property to the mortgage creditor; and of the sale made by the latter to the defendant Julián Piazza Canosi; and there should be canceled, as to the interests of the plaintiffs, the record of said sale and award which appear in the registry respectively at folio 184, back, volume 90 of Adjuntas, property number 1173, quintuple, 17th inscription, and at folio 88, same volume and property, 18th inscription.
5. Dismissing the cross complaint of the defendant Francisco R. de Jesús, as to the first cause of action set forth therein, and adjudging the defendants Teodora, Domingo, and Inocencio Costa Bel-trán to pay to the defendant Francisco R. de Jesús the sum of [684]*684$1,500, which is tbe principal amount of the mortgage encumbering the interests of said plaintiffs, with interest thereon at the rate of 12 per cent per annum, from November 11, 1926, until the date of •final payment, without special imposition as to costs; and this part of the judgment can not be executed until the rights of the parties concerning the claims for improvements to the property and for rents and profits produced by the property and received by the defendants, shall have been finally determined.
6. Remanding the case to the district court with directions to proceed to take evidence on the cross complaint filed by the defendant Piazza, wherein he claims the amount of the expenses incurred by him in the preservation of the properties and in the payment of the taxes thereon; and to require the defendants and cross-complainants, De Jesús and Piazza, to render an account to the plaintiffs of any amount actually received or which might have been received by either of them as fruits and profits during the period that each was in possession of the realty; and after hearing the evidence that may be introduced by both parties, to render the judgment which, in its opinion, should be proper.
Mr. Justice Córdova Dávila was absent at the time of the signing of the judgment, hut he sat at the hearing of the appeal and participated in the discussion in conference; and he has read this opinion in which he concurs.
Mr. Chief Justice Del Toro and Mr. Justice Hutchison dissented.