Irwin v. Fernandez Nater

7 P.R. Fed. 98

Opinion

HaMiltoN, Judge,

delivered tbe following opinion:

Tbis is a suit for tbe recovery of land bought by tbe defendant at a tax sale, and wbicb tbe plaintiff alleges to bave been properly redeemed therefrom. There bave been two trials and each time a verdict for tbe defendant. Tbe application for a new trial sets up, on tbe one band, that tbe verdict of tbe jury was contrary to tbe evidence, and on tbe other, that tbe court erred in certain instructions.

1. Tbe court will not go into tbe matters alleged as to, tbe weight of tbe evidence. Tbe evidence was conflicting- as, to a number of points, and tbe court is not prepared to .say that tbe. jury erred as to its credibility and weight. It is not tbe duty of the court to take tbe place of the jury, particularly where two trials have shown how the facts appear to the minds of juries. See Mendez v. North British Mercantile Ins. Co. 5 Porto Rico Fed. Rep. 332; Gonzalez v. San Juan Light & Transit Co. 5 Porto Rico Fed. Rep. 454; Elkins v. People, 5 Porto Rico Fed. Rep. 383.

2. The plaintiff strenuously contends that where the proper amount for redemption was deposited with the registrar under the Political Code, §§ 348, 349, the redemption follows ipso facto and revests the title in the original owner, and that consequently the fact that the money was withdrawn by the original owner afterwards would not make any difference. No authority is cited one way or the other on this proposition, but the court cannot permit the plaintiff to blow hot and cold. She cannot use her money to redeem, and then get her money back without changing the situation of the tax purchaser. She will have both her land and its redemption money, while the tax purchaser will have neither. This cannot he favored in any system of law. A payment, even more than a tender, must be kept ai'ive, for it must be a finality.

3. It is alleged that the withdrawal of the money by plaintiff’s agent was beyond the scope of his authority, and could not affect the plaintiff’s rights already vested by his payment for her'. The agency could be by parol. Black, Tax Titles, §' 368. The extent of the authority of the agent in this case was shown not only by letters, but by depositions and other testimony, and was within the province of the jury. Even if the'court should disagree with the jury, which is not the case, in construing this testimony, it would be a matter with which the court should not interfere. The verdict of the jury shows that they considered the agent as representing the plaintiff for all purposes, and that the plaintiff was bound by his actions and could not take advantage of his actions for one purpose and disavow them for another.

4. It is argued that the withdrawal of the money was at the instigation of the registrar and that the registrar was acting with prejudice, if not with fraud, and intended to defeat the redemption of the property. Black, Tax Titles, § 362. As to this it need-only be observed that the motion for a new trial does not set up this ground, and even if it had done so this would be a matter within the province of the jury, and not of the court.

It follows that the motion must be refused, and it is so ordered.