García v. Registrar of Property of San Juan (Second Section)

Supreme Court of Puerto Rico

García v. Registrar of Property of San Juan (Second Section)

41 P.R. 473

CourtSupreme Court of Puerto Rico

DecidedJuly 30, 1930

DocketNo. 813

StatusPublished

This text of 41 P.R. 473 (García v. Registrar of Property of San Juan (Second Section)) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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García v. Registrar of Property of San Juan (Second Section), 41 P.R. 473 (prsupreme 1930).

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Opinion

Mr. Justice Wolf

delivered the opinion of the Court.

Francisco G-. Garcia began a suit in the district court to recover $600 etc., secured by a second mortgage. He obtained judgment for an order of sale and to pay him the said amount. The sale was made. Garcia was the purchaser and the marshal executed a deed to him. The defendants in the suit were Joaquina Couvertier y García and the Succession of Serafín de Santiago y Garcia. When the deed of sale was presented to the registrar, he recorded the same as to Joaquina Couvertier y Garcia, presumably the widow of the debtor, and otherwise refused the record.

We agree with the appellant that his action was one to foreclose a mortgage and not a mere personal one to recover money. Hence, the registrar was mistaken when he said a previous attachment was necessary. Indeed we know of no reason why in an action for the recovery of money when a judgment is obtained an attachment is a condition precedent to .the execution of judgment. Section 239, Code of Civil Procedure. The registrar held that the property should first be recorded in the name of the Succession.

Differently from the case of Rodríguez v. Registrar of Arecibo, 33 P.R.R. 786, the casé here involved was a mortgage action, and henee, Zayas v. Registrar, 14 P.R.R. 589, is applicable. We quote from the syllabus:

[475]*475“Tbe writ issued to tbe district marshal for tbe execution of a judgment rendered in an action prosecuted against tbe beirs of tbe debtor stating tbeir names, being inserted in tbe deed in question, is sufficient to establish tbe fact that such persons are tbe beirs of tbe debtor in whose name tbe registrar states tbe property conyeyed is recorded.

“In accordance with the provisions of tbe Royal Order of July 22, 1896, which is a part of tbe Mortgage Daw in force in this Island, in cases of judicial sales made for tbe payment of mortgage credits, it is not necessary that tbe mortgaged properties be previously recorded in favor of tbe beirs of tbe debtor in order that tbe deed of tbe judicial sale so made may be recorded.”

Likewise we agree with the appellant that in the manner in which the court acquired jurisdiction is not a curable defect. Jurisdiction of a court of record is definitely presumed from the judgment.

The note will be reversed and the record made.

Mr. Justice Texidor took no part in the decision of this case.

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Mr. Justice Wolf

delivered the opinion of the Court.

Francisco G-. Garcia began a suit in the district court to recover $600 etc., secured by a second mortgage. He obtained judgment for an order of sale and to pay him the said amount. The sale was made. Garcia was the purchaser and the marshal executed a deed to him. The defendants in the suit were Joaquina Couvertier y García and the Succession of Serafín de Santiago y Garcia. When the deed of sale was presented to the registrar, he recorded the same as to Joaquina Couvertier y Garcia, presumably the widow of the debtor, and otherwise refused the record.

We agree with the appellant that his action was one to foreclose a mortgage and not a mere personal one to recover money. Hence, the registrar was mistaken when he said a previous attachment was necessary. Indeed we know of no reason why in an action for the recovery of money when a judgment is obtained an attachment is a condition precedent to .the execution of judgment. Section 239, Code of Civil Procedure. The registrar held that the property should first be recorded in the name of the Succession.

Differently from the case of Rodríguez v. Registrar of Arecibo, 33 P.R.R. 786, the casé here involved was a mortgage action, and henee, Zayas v. Registrar, 14 P.R.R. 589, is applicable. We quote from the syllabus:

[475]*475“Tbe writ issued to tbe district marshal for tbe execution of a judgment rendered in an action prosecuted against tbe beirs of tbe debtor stating tbeir names, being inserted in tbe deed in question, is sufficient to establish tbe fact that such persons are tbe beirs of tbe debtor in whose name tbe registrar states tbe property conyeyed is recorded.

“In accordance with the provisions of tbe Royal Order of July 22, 1896, which is a part of tbe Mortgage Daw in force in this Island, in cases of judicial sales made for tbe payment of mortgage credits, it is not necessary that tbe mortgaged properties be previously recorded in favor of tbe beirs of tbe debtor in order that tbe deed of tbe judicial sale so made may be recorded.”

Likewise we agree with the appellant that in the manner in which the court acquired jurisdiction is not a curable defect. Jurisdiction of a court of record is definitely presumed from the judgment.

The note will be reversed and the record made.

Mr. Justice Texidor took no part in the decision of this case.

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41 P.R. 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-registrar-of-property-of-san-juan-second-section-prsupreme-1930.