Roca v. Registrar

19 P.R. 916

Opinions

Me. Justice del Tobo

delivered the opinion of the court.

On April 15, 1913, Emilia Llabrés y Bamos executed a notarial deed of sale conveying to Bgfael Boca y Boca a rural estate containing 52.50 cuerdas segregated from a larger property recorded in the name of the vendor in the Begistry of Property of Guayama.

Upon presentation of the deed for record in the registry the registrar refused to admit the same to record on the grounds set forth in the following decision from which Bafael Boca y Boca, one of the parties to the deed, took the present administrative appeal:

“The admission to record o'f this document is denied because it appears from a marginal note to the first record of property No. 850 that the 118 cuerdas from which the 52.50 sold are segregated were acquired by.Adelina Ramos by exchange with Emilia Llabrés Ramos, a cautionary notice of this denial being entered on folio 133 of volume 35' of G-uayama, property No. 1764, entry letter A. Guayama, April 16, 1913. The Registrar, Felipe Cuchí Amau.”

The appellant maintains that notwithstanding the marginal note to which the registrar refers in his decision the record should be made in favor of the .purchaser as the property appears recorded in'the name of the vendor.

On the contrary, the registrar contends that following the practice advised by G-alindo and followed in the registries since the enactment of the Mortgage Law, when the public deed of exchange of rural properties executed by Emilia Lla-brés y Bamos and Adelina Bamos was presented for record it was recorded in the name of the party who made the application and a marginal note thereof was entered on the record of the other property exchanged; that this being the case, and it appearing in the registry that Emilia Llabrés had disposed of her ownership of the estate which she sold to Boca by said deed of April 15, 1913, the last-mentioned deed could not be recorded.

Every exchange, says Galindo, creates two transfers of ownership and therefore two records, one in favor of each of tlie parties to the exchange. If only one of the parties applies for a record, it results that according to the registry the property acquired and that exchanged for it belongs to him. Example: Peter; the owner of property A, exchanges it for property B which belongs to John. Peter records in his name property B which he has acquired and John fails to record property A in his name. The result is that Peter appears in the registry as- the owner of the two properties. What should the registrar do with regard to the property whose record is not requested? A distinction must be made. If the two- properties are recorded in the same registry, inasmuch as in the record of the transfer of the ownership of property B to Peter it is shown that his ownership of property A has been transferred to John, it appears, continues G-alindo, that this case may be considered as coming under article 29 of the law, which is to a certain extent an exception to article 23 of the same. The principle is laid down therein that the ownership which is mentioned expressly in the record, although it does not appear in the registry under a separate and special entry, is effective against a third party.

Applying the foregoing doctrine, on account of the fact that John’s ownership of property A appears in the record, although not in a separate and special record, Peter cannot dispose of it, and if he should do so, he would not transfer the ownership to the purchaser as against John, the real owner. As Peter could demand a certificate showing that property A appears recorded in his name, unless that record had been canceled, and in view of such certificate a third party could buy it, and as it would not be just to protect the interests of John who had not taken advantage of his right to record his title to the prejudice of a third party who had purchased from a party who, according to the certificate, appeared to be the owner of the property, the injury from the latter would be greater than that from the former because it would fall on a person who had taken the necessary steps and was the victim of an official mistake. Therefore, we are of the opinion, continues said commentator, that the registrar in recording property B in favor of Peter should enter on the record of property A a note referring to the record of property B, as follows: “This property was exchanged for number so and so, according to record number so and so.” In this way, when a certificate is requested as to the ownership of property A it may be given complete and stellionate prevented, thus complying with the main object of the Mortgage Law. In view of the foregoing, if in spite of all these precautions a transfer to a third party should be effected, the registrar should refuse to record the title on the ground that it appears in the registry that another person is the owner of the property sold. See G-alindo, Legislación Hipotecaria, volume 1, pp. 323, 324 and 325.

The opinion of the greatest of the commentators on the Mortgage Law seems to us well founded and in harmony with the principles of the said law. Besides^ it has been followed in the registries of property and is now the practice therein.

Moreover, as the appellan/t has not cited, nor have we been able to find, any law or jurisprudence in conflict with the said opinion and practice, we are unable to agree with the appellant that the refusal of the registrar to record the deed of sale referred to herein was erroneous.

The appeal should be dismissed and the decision appealed from affirmed. •

Affirmed.

Chief Justice Hernández and Justices MaeLeary and Al~ drey concurred. Mr Justice Wolf dissented.