Hernández v. Costa

16 P.R. 423

Opinions

MR. Justice Wole

delivered the opinion of the court.

For'a default in the payment of taxes the farm “Rita,” in the ward of “Cerrillos” of the district of Ponce, was sold at public auction to José Liborio Hernandez for the sum of $200. Domingo Felici, one of several eoowners, paid into the registry of property the money necessary to redeem the same, and a certificate of redemption was issued in his favor by the registrar of property on March 8, 1905. Liborio Hernández brought a suit against both Felici and the registrar of property to the exclusion of his coowners, but this court refused against Felici in the lower court. The question was raised in that suit that Felici did not have the right to redeem the prop1 erty to the exclusion of his coowners, but this court refused to discuss that question as the other heirs had not intervened, and limited its opinion to deciding that one co owner had a right to redeem the whole property in question. On March 13, 1907, Felici made a deed of said property to Carlos Costa for the sum of $900. The other coowner did not join in the deed.

On April 10, 1908, some of the original coowners of the property in question, who are appellants here, began a suit against Carlos Costa to have him acknowledge their interests and rights in the property, for damages and accounting, for some of them to be put in possession of the property for the administration of the same, and that the property be divided or .sold at public auction. After some preliminary proceedings the court found that the complainants had been owners of 41.828 per cent of the whole property; that Costa had expended $2,040 in improvements, and adding to this his original outlay of $900, the total sum expended by him amounted to $2,940; that before proceedings to obtain a division could be had, the plaintiff should first deposit in court, in payment of their aliquot interests in said property, the sum of $1,229.74, to reimburse the said Carlos Costa. This order was made on October 31, 1908, and slightly amended on November 13, 1908, the plaintiffs being given until November 27, 1908, to comply with the same.

On the latter elate the complainants came into court and expressed that they were unable to comply with the order of court; that all they could raise was the sum of $400, which was more than sufficient to satisfy their proportionate share in the amount that Carlos Costa had paid for the property, and that the complainants were willing to renounce any share in the produce of the farm resulting from the expenses and outlay made thereon by Carlos Costa, and they deposited the $400 in court. The complainants also asked that, in case their request could not be granted, the time for making the deposit of $1,229.74 be extended.

The defendant then came into court and moved that, as the complainants had not complied with the order of November 13, they were in default, and that judgment should be rendered in his favor. The court, on December 9, 1908, rendered judgment in favor of the defendant without prejudice to the rights of the complainants.

Both sides appealed from the judgment of December 9, 1908, and in their notices of appeal both sides expressed their dissent from the order of October 31,1908. In an appeal from a final judgment any interlocutory order may be reviewed. (Section 213 of the Code of Civil Procedure.)

It has been suggested that the complainants and appellants, by appearing and offering to pay $400 and to a certain extent complying with the extraordinary order of October 13, 1908, waived their rights, and especially their right to complain of such order. But their offer was summarily disregarded by the trial court. No question of consensus tollit errorem can arise because complainants were not allowed to consent. No principle of estoppel can be invoked because no one was allowed to act on tlie offer and nobody suffered any detriment by reason of tlie attempt of complainants to adjust themselves in a spirit of compromise to the court’s order. An offer of this kind, if not accepted, is as if it had never been made. A different principle might arise if tlie defendant had taken any fresh step by reason of the order of October 31. Instead of which he asked for judgment, and while it is something of a mystery why he should appeal from a judgment he himself sought, yet it is evident that he was not satisfied with the order of October 31. Defendant would seem to be estopped from raising any question of estoppel, waiver or renunciation.

Sections 348, 349 and 350 of the Political Code are as follows :

“Section 348. — Tlie owner of any real property sold for taxes, his heirs or assigns, or duly authorized agents, may redeem the same within ninety days of the issue of the certificate of purchase by payment to the purchaser, his heirs or assigns, of the full amount of the purchase money, with annual interest thereon at the rate of 15 per cent, together with all costs incurred and taxes due. Upon the payment of such amounts, the redemptioner shall be entitled to receive from the purchaser, his heirs or assigns, the said certificate of purchase. The receipt of the said redemption money by any such purchaser, his heirs or assigns, shall operate as a release of all claims or title to the real property held under or by virtue of any such sale for nonpayment of taxes.

“Section 349. — If the aforesaid purchaser, his heirs or assigns, refuse to accept the tender of redemption money so made, .the person so tendering the same shall repeat the tender in the presence of at least two witnesses, and if the tender be again refused, the said person and witnesses shall make oath, before the registrar of property who recorded the certificate of attachment, that due tender of the lawful amount of redemption money has been made and refused. Whereupon the registrar shall compute from the proper records the lawful amount of redemption money due, in accordance with the provisions of this Title, and upon receipt of the same, shall issue to the redemptioner a certificate of redemption. The payment of such redemption money to said registrar shall restore to said former owner, his heirs or assigns, all the right, title, interest and estate in and to said real property, held by said former owner before the sale, for nonpayment of taxes.

“Section 350. — Upon tlie receipt of sneli redemption money, in tlie manner aforesaid, the registrar shall notify the purchaser, his heirs or assigns, of the payment of such money, and shall hold the same subject to the order of said purchaser, his heirs or assigns. Such notification may be sent by registered mail to the last residence of such purchaser, his heirs or assigns, as specified in the certificate of purchase. For his services in the proceedings aforesaid, the registrar shall be entitled to retain from said redemption money a fee of three dollars.”

The redemption of the farm “Rita” took place by virtue of the. provisions of sections 349 and 350. The right to redeem and its consequences are expressed in section 348. Prom •the use of the words “shall operate as a release of all claims or title,” it is evident that when property is redeemed under this law the outstanding title in the purchaser is destroyed and the status quo existing before the sale is restored. By paying Liborio Hernández what he had expended in getting the tax title, Pelici acquired no new title to the land. This is the universal principle with respect to redemption from tax sales unless the' statute has expressly made a different provision. (Black on Tax Titles, sec. 377; Gould v. Day, 94 U. S., 413; Am. & Eng. Enc. of Law, Vol. XVIII, p. 677.)

Pelici did not buy an outstanding title; he merely redeemed in accordance with the provisions of section 348, supra. Hence the case of Darcey v. Bagny, 10 L. R. A. (N. S.), 863, is not applicable. Under the law in force in Porto Rico the coowner redeeming may have had a right of action against his co-owners for their proportionate share of the expense of redemption. The rule of the Common Law which did not permit one coowner to sue another is not applicable.

The registrar of property, in delivering a certificate of redemption to Pelici, was only certifying that the outstanding tax title was canceled and the property was redeemed and restored. This was the law and of this law Carlos Costa was bound to take notice when he bought of Felici. It appears on page 29 of the record that all that the registrar did was to record the “redemption” in favor of Felici. On page 17 of the record, likewise, it appears that Carlos Costa had actual knowledge of the existence of the coowners of the farm “Rita.” A number of them were women and some of them were infants.

There can be no question of laches in this kind of a case even if the doctrine of laches, as such, applies in Porto Rico, and the period of prescription, in which the complainants had the right to bring .this action, had not run.

All that Felici could legally transfer to Carlos Costa was his own undivided interest in the farm “Rita.” Hence the complainants had a clear cause of action against him, and it only remains to be seen what are his rights against them.

With respect to the amount which Felici paid to Liborio Hernández to redeem the property, it seems clear that Felici had a claim for contribution from his coowners. But it does not appear that he sold or transferred that claim to Carlos Costa. Hence the latter has acquired no claim to any proportionate share of the money paid by Felici to Liborio Hernán-dez. If it were otherwise, the complainants might be subjected to two actions, one by Carlos Costa and one by Felici.

The defendant claimed for the improvements or expenditures he had made on the property. The first question in this regard is whether he took possession of the land and held it in good faith. The law in this regard seems to be well set forth in the Civil Code as follows:

“Section. 455. — Necessary expenses are refunded to every possessor; but only the possessor in good faith may retain a thing until such expenses are made good to him.

“Useful expenses are refunded to the possessor in good faith with the same right of retention, it being at the option of the party who has defeated him in his possession to refund the amount of the expenses or to pay the increase in the value of the thing in consequence of such expenses.”

A similar principle, with numerous authorities, is set forth at page 11 of the 22d volume of Cyc. as follows:

. “It was the rule under the civil law, upon the broad principle of equity, that no one ought to enrich himself at the expense of another, that where one made permanent improvements on land in his possession under a bona, fide belief of ownership he was entitled to full compensation therefor, less a fair compensation for rents and profits during the period of his occupancy, before the owner of the property could recover the same.”

We think the defendant believed, as a matter of fact, he was the sole owner and that the complainants had abandoned or lost their rights, and that he is, therefore, entitled to compensation for the improvements or expenses made for the benefit of the property.

But it will first have to be determined whether the improvements that were made were for the benefit of the land. This does not clearly appear from the record. It will also have to be determined what were the rents and profits.

The case must be reversed and a judgment entered declaring the complainants coowners with Carlos Costa and their respective shares be made subject to the net amount which the court may find to be due in his favor, after a hearing of proof with respect to the improvements for the benefit of the property and with respect to the rents and profits in their favor. The complainants in the meantime should be given an order allowing them to withdraw their deposit should they so desire.

Reversed.

Justices MacLeary and del Toro concurred. 'Mr. Chief Justice Hernández dissented. Mr. Justice Figueras did not sit at the hearing of this case.