Martorell v. J. Ochoa & Brother

25 P.R. 707

Opinions

Opinion delivered by

Me. Chief Justice HERNÁNDEZ,-

in which Mr. Justice Aldrey concurs.

This is an appeal by the plaintiffs from a judgment rendered in the above-entitled cause by the District Court of San Juan, Section 1, on December 22, 1915, dismissing the complaint without special imposition of costs.

The said amended complaint, the original being dated June 5, 1914, prays for jud"gment setting aside the convey-anee in payment of a debt' of certain properties described in the complaint under Nos. 1, 2, 3, 4,.5, 6 and 7, in so far as it included the joint interests of the plaintiffs in said properties, and adjudging that each of the plaintiffs owns in each of the said properties a joint interest of two-eighteenths in fee simple, and a further joint interest of one-eighth in a joint interest of two-eighteenths in naked ownership, ordering that the defendant firm recognize the said joint interests and restore them to the plaintiffs together with the rents and profits received and receivable, of which they should render an itemized and verified account ‘within a fixed time, with the costs, disbursements and attorney fees imposed upon the defendants.

The lower court made the following findings of fact:

(a) Each one of the plaintiffs owns in each of the properties described in the complaint a joint interest of one-ninth of one-half, or two-eighteenths of the whole in fee simple, and another joint interest of one-eighth of two-eighte.enths in naked ownership.

(b) By a deed of -March 18, 1904, Rosa Torrens, as representative of the then minor plaintiffs, sold to J. Ochoa & Brother the joint interests in the said properties which, as the heirs of their father, Pedro Martorell, the said minors owned in fee simple.

(c) Rosa Torrens made the said sale with the authorization of the District Court of San Juan given in its order of April 28, 1902, at which time as well as at the time of the execution of the deed she and her minor children under her patria potestas resided and had their domicile in the munic-’ ipality of Ciales.

(d) The defendant firm is now in the possession of the properties described in the complaint and has been in such possession since the deed of sale was executed, receiving the rents and profits of.the same.

(e) The firm of J. Ochoa & Brother had correspondence with Rosa Torrens and with the Succession of Pedro Marto-rell, addressing the letters to the town of Cíales, tlieir residence, and knew that Cíales was the fixed residence of Eosa Torrens and of her children when the court granted the authorization.

The defendants alleged as special defense that the action was barred by limitation according to section 1858 of the Revised Civil Code, and by' its judgment of December 22, 1915, the court dismissed the complaint on that ground.

As ground for the appeal the appellants maintain that the lower court erred in holding that defendants J. Ochoa & Brother acquired the properties forming the subject-matter of this action of ejectment by ordinary acquisitive prescription by possession for ten years in good faith and with color of title.

The sections of the Civil Code which govern the question involved in the present case are 1841, 1851, 1853, 1854, 1855, and 1858, which read as follows:

“See. 1841. — For ordinary prescription of ownership and other property rights, it is necessary to possess things in good faith and under a proper title, during the time' specified by law.”

“Sec. 1851. — Good faith of the possessor consists in his belief that the person from whom he received the thing was thé owner of the same, and could convey his title.”

“Sec. 1853. — By a proper title is understood that which legally suffices to transfer the ownership or property right, the prescription of which is in question.

“Sec. 1854. — The title for prescription must be true and valid.

“Sec. 1855. — A proper title must be proven; it never can be presumed. ’ ’

“Sec. 1858. — Ownership and other property rights in real property shall prescribe by possession for ten years as to persons present, and for twenty years with regard to those absent, with good faith and with a proper title.”

As is seen, section 1858 of the Civil Code requires that there must be good faith, color of title and possession for ten years as to persons present, and for twenty years as to persons absent, in order to acquire by prescription ownership and other property rights in real property.

Section 1851 defines good faith as consisting in the belief that the person from whom the possessor received the thing was the owner of the same and conld convey his title. Snch belief is sufficient to establish good faith, and it is not necessary that the grantor should be the real and absolute owner thereof and could pass title of ownership. This definition of good faith is in harmony with that of sections 436-and 437, which are made applicable to prescription' by the express provision of section 1852; and section 436 provides that a bona fide possessor is deemed to be the person who is .not aware that there exists in his title, or in the manner of acquiring it, any flaw invalidating the same, and that a possessor in bad faith is deemed to be any person possessing in any contrary case. According to section 437, good faith is always presumed and any person averring bad faith on the part of a possessor is bound to prove the same. Therefore a person who believes that he acquired the property from one who was the owner of it and capable of transferring its- ownership, or a person who is -not aware that there exists in his title, or in the manner of acquiring it, any flaw invalidating the same, is a bona fide possessor. Consequently, good faith is compatible with a title invalidated by a defect, provided the possessor is not aware of the existence of snch defect or believes that it does not exist.

As regards color of title, section 1853 expressly provides that it is understood to be that which legally suffices to transfer the ownership or property right, the prescription of which is in question. In order that the title may be color-able it is not necessary that it actually transfers the ownership or property right, but that it is sufficient to -transfer it although it may contain a defect which invalidates it. And tlxis is necessarily so, because if under the name of color of title, which the law requires for prescription, is meant only a title clothed with all the internal and external requisites necessary for the real and actual transfer of ownership, prescription would be superfluous as a means of acquiring-ownership.

“This is not only just but legal,” as said in the ease of Teillard v. Teillard et al., 18 P. R. R. 546, “unless the provisions of the Civil Code that after the' lapse of ten' years as to persons present and of twenty as to absentees dominion of real property possessed in good faith and by just .title is acquired by prescription, should be rendered ineffective.

‘ ‘ If possession transferred by virtue of a sale requires, even thus, thirty years to prescribe, such provisions of the Civil Code, as also the many decisions of this Supreme Court, the greater number of which are embodied in volumes 3, 5 and 6 of our reports and were rendered in dominion cases in accordance with the aforesaid provisions, would be useless.”

And we then added, quoting- from the judgment of the Supreme Court of Spain of October'25, 1881, that “if the void title cannot cease to be such, converting- itself into a valid one, the laws based on reasons of public convenience have in some cases accorded to possession an irrevocable force, not on the strength of its original cause, but in view of the respect due to a status consecrated by the lapse of time. ’ ’

That doctrine was ratified later in the cases of Picard v. De León, 22 P. R. R. 553; Arroyo et al. v. Bruno et al., 23 P. R. R. 757, and Maldonado v. Ramos et al., 24 P. R. R. 278. In disposing of an appeal in which it was alleged that articles 1950, 1952 and 1953 of the Spanish Civil Code (secs. 1851, 1853 and 1854 of the Rev. Civ. Code) had been violated by a ruling that a deed of sale of a concession by a widower who had acquired the same during wedlock was sufficient for acquisition by ordinary prescription, it being urged that said deed was null and insufficient to pass title by prescription, the Supreme Court of Spain, by its judgment of October 2, 1908, dismissed the appeal for the following reasons: “ (1) Because the deed of July 16, 1891, is a good and perfect title on its face to transfer the ownership and contains the requirements of sections 1952 and 1953 of the Civil Code, it not being legally practicable to confound a defect which may affect a title for the purposes of prescription, such as' the lack of any requirement which, according to its character, may defeat the title in an action, with a defect resulting from the nature of the acts performed and the capacity of the parties; (2) because good faith being always presumed and consisting in the belief that the person from whom the property was received was the owner and could transfer its ownership, according to article 1950, this condition can not be denied‘the'defendant companies because of the mere detail that the Count of Locatelli had executed the deed in which he stated that he ■ was a widower, inasmuch as he appeared as the only grantee and as such has the character of owner, apart from the domestic inconveniences produced by the death of his wife six weeks before the execution of the deed, which might have passed unnoticed by those who took part in the organization of the partnership, and because in considering what constitutes mere belief sufficient to establish good faith it is not-necessary to apply the strict principle of law as in a case where it is sought to determine the validity of the act * * '’ 112 Civ. Jur. 39.

Later, in a judgment of November 30, 1910, the same-court held that “even supposing that a deed could not have transferred to the vendee the ownership of the property claimed because of the nullity of the title asserted by the vendor, if the said deed, besides containing in form the requirements of the law, constitutes by its nature a title conveying ownership, it is manifest that it fulfils the conditions of articles 1952 and 1953 of the Civil Code (secs. 1853 and 1854 of the Eev. Civ. Code), as held by this court in similar cases; because, if it were required that the said deed should convey to the purchaser in fact and in law the ownership of the property, there would be no need for him to resort to prescription, and this mode of acquisition, in so far as regards ordinary prescription, would be superfluous and would have to be eliminated from the methods of acquiring title under our statutes as unnecessary and useless.” 119 Civ. Jur. 486.

In view of the statutes cited -and of the jurisprudence established by this court in harmony with that of the Supreme Court of Spain, we arrive at the conclusion that a title capable of transferring ownership, although it does not convey it in fact and in law because of a fatal defect, may serve for the acquisition of ownership by ordinary prescription, provided the requirements of good faith and possession for the time prescribed by law are shown and such possession has been held as owner, publicly, peacefully and uninterruptedly in accordance with article 1842 of the Revised Civil Code.

The foregoing conclusion is not affected by the provision of section 1854 that the title for prescription must be true and valid. The antonym of “true” in its grammatical and legal signification is “false.” We cannot give to the word “valid” a meaning which would eliminate from our code the method of acquiring by ordinary prescription as would be the case if we should understand a valid title to be one clothed with all the internal and external requirements of the law. According to the judgments of the Supreme Court of Spain of October 2, 1907, and November 30, 1910, a valid title -is one which contains the elements necessary to give life to the title and to show its existence independently of the nature of the acts performed and of the capacity of the parties.

Section 366 corroborates our theory. It reads as follows:

“He is bona fide possessor who possesses as owner by virtue of a title sufficient in its terms and conditions to transfer the ownership, and the defects of which he is ignorant of. Bona fide possession ceases from the moment the possessor becomes acquainted with the defects of the title, or through a suit instituted by the' owner of the thing to recover the same.”

So that according to the said section, in order to be a possessor in good faith it is not necessary to have a perfect title, but it is sufficient to have a title adequate in its terms and conditions to transfer the ownership if its defects are not known to the possessor. These defects must he snch as to invalidate the title; otherwise prescription would be superfluous, as we have already said.

Applying the foregoing doctrine to the case before the court, the conclusion is inevitable that the defendant firm acquired by ordinary prescription the joint interests which the plaintiffs seek to recover. The deed of March 18, 1904, by which Eosa Torrens, in the exercise of patria potestas over her minor children, the plaintiffs, sold the said joint interests to J. Ochoa & Brother with the authorization of the District Court of San Juan of April 28, 1902, is a good, true and valid title for the purposes of prescription, — good, because it is one of purchase and sale sufficient to convey the ownership; true, because it has not been attacked as false; valid, because it is perfect in its external requirements and even in the internal conditions which affect its life and existence, according to section 1228 .of the Civil Code; for there was a coincidence in the contract of a subject-matter consisting of the joint interests described in the complaint, the consent of J. Ochoa & Brother through their managing partner, Severo Ochoa, and by the minors through their legal representative, or their mother, Eosa Torrens, by virtue of her patria potestas and a consideration contributed to by both parties; namely, the conveyance of the property and the payment of its price. The lack of authorization by a competent court affects the form but not the essence of the consent. It does not render it inexistent but void; hence the nullity of title, which, being void, gives rise to a suit in ejectment; but it is sufficient for the purposes of prescription. The possession by J. Ochoa & Brother has been in good faith, for this is always presumed and the evidence does not show- that they Miew ihat their title or manner of acquiring it was affected by a fatal defect.

Considering all the circumstances of the case, the fact that J. Ochoa & Brother knew that Eosa Torrens and her children resided in Ciales, which is in the judicial district of Are-cibo and not in that-of San Juan, does not destroy the legal presumption that the said firm has been a bona fide possessor. And that the said possession was in the character of owner and public, peaceful and uninterrupted, as required by section 1842 of the Civil Code, and for more than ten years as to persons present, is not a matter for discussion in the present appeal.

The decision of the District Court of San Juan of April 28, 1902, authorizing Eosa Torrens to sell the joint interests of her minor children in the real property, reads as follows:

“Whereas Rosa Torrens y Risech has petitioned for authorization to sell the undivided interests which her minor children Teresa Antonio, Luis, Miguel and Gerardo Martorell y Torrens, who are subject to her patria pobesias, have in the following rural properties (the properties described in the complaint); whereas the necessity and utility of the said sale as regards the minors aforesaid have been shown by^ the three witnesses of good repute whom the secretary certifies he knows, after citing the Government’s attorney, who is of the opinion that the authorization asked for should be granted. Therefore in- view of the provisions of article 164 of the Civil Code and articles 2010 et seq. and 2029 of the Code of Civil Procedure, Rosa Torrens y Risech, for and in behalf of her aforesaid minor children, is authorized to sell the interests which they have in the said properties. The justices of the court so decided.- and sign, to which I certify. Juan B. Ramos. Juan Morera Mar-tínez. José R. F. Savage. Before me, Ramón Falcon.”

Invested with the said authorization, the legal efficacy of which was not questioned by either Eosa Torrens or J. Ochoa & Brother, the former, representing the minors, by a deed of March 18, 1904, executed .before Notary Herminio Díaz Navarro, sold the said joint interests to J. Ochoa & Brother.

The deed of sale was recorded in the Eegistry of Property of Arecibo.

In view of the foregoing facts, the learned attorney for the appellees pertinently propounded the following question: “If the attorney who advised Rosa'Torrens and prepared the petition believed that his "action in presenting the same to the District Court of San Juan was correct and legal; if the district attorney expressed a favorable opinion; if the three judges who heard the said petition rendered a decision granting the same; if the notary public who .drew up the deed of sale with the decision of the court before him made no objection; if the registrar upon recording the title of. ownership found no defect invalidating the same, all of them being learned in the law and required by law to pass upon the validity or invalidity of an instrument, for what reason and by what light can it now be claimed that J. Ochoa & Brother are responsible for the defects or errors committed by a third person and completely beyond and independent of their will? If the jurisconsults failed to observe or note any defect in the authorization given to Rosa Torrens, how can it be ex-pectéd that J..Ochoa & Brother, laymen as regards juridical technicalities, should do so? J. Ochoa & Brother were not called upon to solve a legal problem of such a difficult nature as to require a searching analysis of the legal principles involved in the said authorization, as has been shown by the subsequent decision of this court which evidences a careful, arduous and complex study of the subject.”

It is true that a court without jurisdiction can authorize no one to alienate property belonging to minors. But we are of the opinion that taking, into consideration the date— April 28, 1902 — -on which the District Court of San Juan authorized Rosa Torrens to dispose of the property, it cannot be held absolutely that said court had no jurisdiction to grant the authorization, notwithstanding the fact that not it but th.e District Court of Arecibo was the proper court to authorize the sale.

According to the laws of Spain, which govern the present 'case, jurisdiction, as defined by the distinguished commentator Manresa y Navarro in his Commentaries on the Spanish Code of Civil Procedure, is the authority- with which the judges are invested to administer justice, and competency is the authority which they have to take cognizance of certain matters, either on account of the very nature of the thing involved or by reason of the persons. The former is the genus and the latter the species. Jurisdiction always emanates directly and immediately from the law. No one can exercise it unless the law has given him that authority. Only the persons who have been given such authority according to law have jurisdiction and can administer justice; but the competency of a judge to take cognizance of a matter, although derived also from the law, sometimes originates directly, immediately and exclusively from the law and at other times from the will of the parties. The former case is the general rule and the latter the exception. Garcés Nazario v. Franceschi, 1 D. P. R. 282; Bayron et al. v. García et al., 17 P. R. R. 512.

Under the foregoing theory the Law of- Civil Procedure which went into effect on January 1, 1886, and which was not modified as to the matter under consideration by General Order No. 118 of August 15, 1899, and was in force when the authorization was given, provides in article 53 that—

“In order that judges and courts may be' considered as having jurisdiction it is necessary: 1. That the right to take cognizance of the action, or of the proceedings in which they take part, be vested by law in the authority they exercise. 2. That the right to take cognizance of the action or proceeding be vested in them in preference to other judges or courts of the same class.”

And article 56 provides that any judge impliedly or expressly agreed upon by the litigants shall be competent to take cognizance of the suits arising from actions of all kinds, but that this submission can only be made to a judge exercising ordinary judisdiction and who is competent to take cognizance of questions similar to and of the same kind as the one submitted. Article 63, in prescribing certain rules for determining competency, provides under subdivision 23 that in authorizations for the sale of property of minors or incapacitated persons, the competent judge sliall be that of the place where the property may he situated, or that of the domicile of the persons to whom it belongs.

It was common doctrine sustained by judgments of the Supreme Court of Spain of July 22 and September 30, 1875, October 6, 1876, and June 2, 1877, and by decisions of the General Directorate of Registries of January 22, 1886, and May 9, 1889, that both in cases of contentions and voluntary jurisdiction submission could be made to the judge exercising ordinary jurisdiction and having jurisdiction of matters of the same kind and in the same degree. That doctrine was accepted by this court in the case of Solá v. Registrar of Property, 8 P. R. R. 205, but was rejected later in the cases of Nazario v. Registrar of Property, 16 P. R. R. 635, and Esterás et al. v. Arroyo, 16 P. R. R. 689.

However, as the legal question of whether the jurisprudence to, which we refer would be applicable to the authorization to alienate and encumber property belonging to minors after the former Civil Code went into effect in this island on January 1, 1890, had not been .considered and decided by the Supreme Court of Spain or by the General Directorate of Registries, it having been raised, so far as we know, for the first time in the present action and in another similar action between the. same parties, we decided it in the sense that since the Civil Code of 1890 went into effect only the judge, of the district in which-the minors resided was competent to authorize the alienation or encumbrance of their real property, and that in that case competency could not be given by submission. Martorell et al. v. J. Ochoa & Brother, 23 P. R. R. 28, 41.

In considering in the said cases the question of the nullity of the authorization granted Rosa Torrens, this court did not prejudge the plea of prescription now under discussion, notwithstanding the fact that such nullity may have extended to the deed of March 18, 1904, and consequently effected the recovery sought if prescription had not intervened.

Under the statutes then in force the District Court of San Juan had jurisdiction in radice of such kinds of matters as authorization for the alienation or encumbrance of the property of minors, but Was not competent to grant the. authorization given in the present case because by express provision of law it came within the exclusive jurisdiction of the court of the district in which the property was located. If the authorization had been granted by this court or by one of its justices, or by a municipal court or justice of the peace court, or by any officer or private individual not authorized to administer justice, the authorization would then have been void for lack of jurisdiction and might have been correctly held to be non-existent. Its nullity does not arise' from lack of jurisdiction but from the want of competency in the court which granted the authorization. Jurisdiction and competency have different meanings although they are frequently used synonymously.

The case of Longpré v. Díaz, 237 U. S. 512, is unlike the present in which authorization for the sale was granted by a district court and was presumed-to be valid until its validity was submitted to the court by the complaint of June 5, 1914, at which time all the legal requirements for acquisition of ownership by ordinary prescription as to persons present had been complied with.

"We will state that in reaching this conclusion we have been influenced especially by the laws, jurisprudence and legal principles in force when the District Court of San Juan rendered its decision of April 28, 1902, at which time neither the Code of Civil Procedure of 1904- nor the Law relating to Special Legal Proceedings of 1905 had gone into'effect.

The judgment appealed from is

Affirmed. '

Mr. Justice Hutchison concurred in the judgment. Justices Wolf and del Toro dissented.