Rossy v. Mollfulleda

18 P.R. 20

• Court: Supreme Court of Puerto Rico
• Decided: January 29, 1912
• Docket: No. 755
• Status: Published

Opinion

Mr. Chief Justice Hernández

delivered the opinion of court.

This is an appeal from an order of the District Court of San Juan refusing to allow the cancellation of the record of a deed of sale in the registry of property.

In the suit brought in the District Court of San Juan by Manuel Bossy against Juan Mollfulleda, Damiana Huertas and the Cussó Estate, to secure the payment of professional fees, the court, upon motion of complainant, issued an order on May 26, 1906, providing, among other things, that the-registrar be instructed to enter a record of the order prohibiting the alienation or encumbrance of the property belonging to Damiana Huertas consisting of 200 cuerdas, 80 of which were located in barrio Cuevas, Trujillo Alto district,, and the remaining 120 in barrio Sabana Llana, Bio Piedras, district.

In this case judgment was rendered against the defendants on January 23, 1907, and, for the purpose of executing-the same,- on December 13 of the same year the marshal proceeded to hold an auction sale of the property consisting of 80 cuerdas which formed a part of the estate of 200 cuerdas belonging to Damiana Huertas, the adjudication thereof having been made in favor of Mr. Luis Campillo. But not being; able to put Campillo in possession it was agreed by Rossy, Campillo and Mollfnlleda, tbe latter as tbe legal representative of his wife, Damiana Huertas, that tbe sale should be declared void.'

Although there is nothing in the record to show that another sale had taken place, Mollfnlleda filed a petition in the District Court of San Juan on July 25 of last year asking for the cancellation of the record made 'in the Registry of Property of San Juan, volume 17, Río Piedras, of the deed of sale of the property consisting of 120 cuerdas which, according to Mollfnlleda, was adjudicated to Rossy for $100 on false and imaginary boundary lines and on the wrong assumption that it was located within the district of Río Pie-dras.

An order denying this petition was made, the date thereof not being given, and it is from this order that Mollfulleda has taken an appeal.

Even admitting as real and positive the facts of the public sale, of the adjudication and of the execution of the deed of sale of the property of 120 cuerdas in favor of Rossy as well as the record thereof in the registry of property, we are of the opinion that an order directing the cancellation of the record cannot properly be made, not only because Rossy has not given his consent thereto, but because in the absence of such consent no legal ground has been presented in support of the cancellation. Articles 79 and 82 of the Mortgage Law.

For the reasons above set forth the order appealed from should be affirmed.

Affirmed.

Justices MacLeary, Wolf, del Toro, and Aldrey concurred.