Maldonado v. Registrar of Property of Caguas

67 P.R. 243

• Court: Supreme Court of Puerto Rico
• Decided: April 24, 1947
• Docket: No. 1201
• Status: Published

Opinion

Mr. Justice De Jesús

delivered the opinion of the Court.

The Mortgage Law problem involved in this case is very simple. By a deed of October 17,1927, before Notary Andres Mena Latorre the spouses Luis Diaz Morales and Maria Teresa Maldonado executed a mortgage in favor of Angel Buo-nomo Tomasini and Daniel Buonomo López to secure the rental of two properties which the mortgagees had leased to Luis Diaz Morales. On October 14, 1932, the mortgagees signed and delivered to the debtor a private document wherein they stated that they had received from the latter full payment of the last rental of lease, and that they hound themselves to execute the corresponding deed of cancellation of mortgage at the debtor’s request.

On October 8, 1946, Daniel Buonomo López executed the aforesaid deed of cancellation of mortgage before Notary Andrés Mena Latorre inserting therein the said private document, but the other mortgagee Angel Buonomo Tomasini,¹ did not appear in the deed. Upon presenting the deed of cancellation in the Registry of Property of Caguas, the registrar denied its recordation because it had been executed by Daniel Buonomo López without the concurrence of the other mortgage creditor, entering a cautionary notice for the statutory term of 120 days in favor of the mortgagor. Prom this note the present appeal has been taken.

The insertion of the private document in the deed did not convert it into the public instrument or authentic document required for the cancellation of a mortgage by the first paragraph of § 82 of the Mortgage Law, which reads thus:

“Records . . . made by virtue of a public instrument can be canceled only ... by another instrument or authentic document in which the person in whose favor the record . . . may have been made, or his assigns or legal representatives signify their consent to the cancellation.”

Since it does not appear from the deed of cancellation that Angel Buonomo Tomasini, the mortgagee, nor his predecessor or legal representatives,² had expressed their consent in a public instrument or authentic document for the cancellation of the mortgage, the registrar did not err in denying the record sought.

The registrar’s note is affirmed.

1 It seems that the private document was inserted in the deed in order to cure the nonappearance of Angel Buonomo Tomasini.

2 In an attempt to change Ms theory as set forth in his petition, appellant filed an amended petition to which he attached an unrecorded copy of the will of Angel Buonomo Tomasini wherein the testator instituted Daniel Buonomo López as heir of. one-fourth of one-third of the inheritance. Appellant contends that in his capacity as heir, he could execute a full cancellation. Without entering into other considerations, we ask: By what right can the heir of one-twelfth of an undivided inheritance cancel the whole of a mortgage pertaining to the estate?