Flores Salazar v. Angleró Dejarden

42 P.R. 871

• Court: Supreme Court of Puerto Rico
• Decided: December 4, 1931
• Docket: No. 5691
• Status: Published

Opinion

Mu. Justice Wole

delivered the opinion of the Court.

In addition to the pleadings we have in the record before us the brief of the appellant, a motion to dismiss, and briefs for and against the motion.

From the brief o^the appellant it appears that he was seeking to cancel a contract of sale as simulated and to avoid the payment of the promissory notes and mortgage given as the price for the sale. The ground for the motion to dismiss was in effect that none of the evidence taken at the trial was before us. Ordinarily such a motion is refused if the pleadings present the possibility of a question of law. In the present ease, however, the brief of the appellant convinces us that all the questions raised required the'proof submitted to the court below. For example, the appellant maintains that when the receipt of the price is not certified to by the notary there is a presumption that the deed was made gratuitously. Nevertheless, where there was a trial this presumption may have been and presumably was overcome. Similarly, the appellant lays some stress on the discrepancy in the dates of the deeds. This situation, if any, could have been explained at the trial, even supposing that the acts complained of could not be considered as being contemporaneous. Under these circumstances, as the appeal only involves questions of fact and we do not have the sufficient data before us to consider it, the appeal will be dismissed.