Llompart v. Díaz

28 P.R. 146

• Court: Supreme Court of Puerto Rico
• Decided: March 5, 1920
• Docket: No. 2003
• Status: Published

Opinion

Mr. Justice Aldrey

delivered tbe opinion of tbe court.

By a public deed executed in tbe year 1902 Juana Borrás acknowledged a debt to Jaime Llompart Prats of a certain sum of money and to secure its payment created a mortgage on a bouse belonging to ber in Caguas. Tbe mortgage was recorded in tbe registry of property in favor of tbe mortgagee. Tbe mortgagee having died in December, 1905, bis mother, Catalina Prats, widow of Llompart, was' designated as Ms heir by a court order of March 7, 1906, which was recorded in the registry of property as to the said mortgage credit and is still recorded in her name, as appears from the record before ns.

The brothers and sisters Antero, Natalio, Andrea and Concepción Llompart y Pereira brought and action of filiation against Catalina Prats, widow of Llompart, and final '¡judgment was entered on March 4, 1909, holding that the facts and the law were in favor of the plaintiffs, the acknowledged illegitimate children of the deceased Jaime Llompart Prats, with all the rights inherent to such filiation.

Thereafter, on November 9, 1917, the said brothers and sisters brought an ordinary action against Isolina Diaz Rodriguez, the present owner of.the mortgaged property, to recover from her the amount secured by the said mortgage, alleging that it had not been -paid and that the mortgagee had died intestate and unmarried without leaving any legiti-. mate or legitimated descendants or any other illegitimate and acknowledged natural descendants than the plaintiffs who were begotten by him with Rosalia Pereira. Judgment was entered in this suit that the defendant pay the sums claimed and from that judgment the said defendant took the present appeal.

Without considering all the questions raised by the appellant, it will suffice to say that the record presents the question of whether the designation of Llompart’s lawful mother as his heir by the court’s order of March 7, 1906, or prior to the action of filiation, can be declared null and void so that Llompart’s children may recover a mortgage credit belonging to their deceased father and now recorded in favor of Catalina Prats, widow of Llompart, without first obtaining the annulment • of that designation and the cancelation of its record after hearing the party so designated as heir.

The said heir is not a party to this action. The record in her name of the mortgage has not been canceled in the registry of property, and until that record is canceled, after hearing the mother, the mortgage credit cannot be collected by anyone but.her. If the defendant should pay to the plaintiffs the sums claimed by them and secured by the mortgage, the registrar would not cancel the mortgage in his books because it was not paid to Catalina Prats, who, according to the registry, is the mortgagee.

Onr decision in Méndez v. Martinez, 26 P. R. R. 87, is not applicable to the case at bar because that case did not involve the annulment of the designation of Víctor Martinez as heir, who continued to be such heir together with the minor children of Cecilia Méndez.

Por the foregoing reasons the judgment appealed from must be

Reversed.

Chief Justice Hernández and Justices Wolf, del Toro and Hutchison concurred.