Stubbe v. Gandía-Córdova

37 P.R. 37

• Court: Supreme Court of Puerto Rico
• Decided: June 25, 1927
• Docket: No. 4108
• Status: Published

Opinion

Mr. Justice Aldrey

delivered the opinion of the court.

At the trial the plaintiff withdrew his claim for damages and therefore we will disregard it and shall confine ourselves to another point in his claim.

By deed No. 28 of July 24, 1916, executed before notary Cayetano Coll y Cuchí, Johann B. Stubbe and Pedro Gandía, the only members of the partnership of Gandía & Stubbe as recorded in the Mercantile Begister, ag'reed to dissolve and liquidate the partnership before its expiration and to divide the capital between them, the partner Stubbe receiving as his share some pieces of land in Miramar and other properties, none of which were described. On September 26th of the same year and before the same notary the partners executed another deed explanatory of the former, giving descriptions of thirteen properties situated in the municipality of Cidra and conveyed to Stubbe in tbe former deed. In botb deeds tbe notary failed to certify tbat be knew tbe parties.

Copies of botb deeds are exhibited witb tbe complaint in tbe present action brought by Johann B. Stubbe against Pedro Candía and it is alleged tbat tbe notary failed to certify tbat be knew tbe parties, notwithstanding tbe fact tbat be did know them; tbat therefore they became private documents between tbe parties, and tbat as they were intended to convey properties which should be conveyed in public instruments in order to affect third parties and be recorded in tbe proper public registries, wherefore be prayed tbe court for a declaration curing tbat defect, inasmuch as tbe notary personally knew tbe parties, and to order Pedro Candía to execute a deed ratifying tbe two deeds previously mentioned and an explanatory document containing’ an exact description of each and every property which bad been-conveyed to plaintiff Stubbe by tbe said deed of dissolution.

Tbe defendant demurred to tbe complaint on tbe ground of lack of facts sufficient to determine a cause of action and opposed tbe claim made against him. Tbe case was tried and judgment was rendered against tbe defendant, ordering him to execute before a notary' tw'o new deeds in tbe place of tbe two deeds which gave rise to this suit, remedying’ and curing théir defects.

Candía appealed from that judgment and filed a brief in support of bis appeal, but tbe appellee did not present a brief nor appear at tbe bearing on tbe appeal.

Tbe appellant assigned as a first error tbe overruling of bis demurrer to tbe complaint, and bis argument is to tbe effect tbat as tbe requirement tbat tbe notary certify tbat be knows tbe parties is an intrinsic solemnity, tbe only way of curing tbat defect is by means of a document from tbe same notary certifying to tbat fact, and tbat therefore there is no cause of action against tbe appellant to order him to execute new deeds, the more so since the nullity of the contract is not alleged.

According- to section 16 of the Notarial Act notaries shall certify in public instruments that they know the parties to the instrument, or that they have assured themselves of their identity by the declaration of the witnesses to the instrument, or of two other witnesses having’ such knowledge, who shall he known as witnesses of identification; and section 20, subdivision 3, declares null and void public instruments in which the notary fails to certify that he knows the parties, or to supply this deficiency with witnesses of identification-

In view of these statutes there can he no doubt that the two deeds to which we have referred are null and void because the notary has failed to certify that he knew the parties thereto (Fragoso v. Marxuach, 31 P.R.R. 187; Del Río v. Heirs of Cancel, 36 P.R.R. 468); and as in order to record in the registry of property conveyances of real property they are required to he executed in a public instrument as provided in section 1247 of the Civil Code as amended in 1912, and in section 3 of the Mortgage Law, it becomes evident that the appellee is entitled to have the conveyance of the pieces of real property made to him in the deed of dissolution and liquidation of the partnership Gandía & Stubbe,' as well as the description of the properties made in the other explanatory deed, recorded in a public instrument, and he has a right of action against the defendant to compel him to execute two new public deeds in place of the two deeds which were defective and void as public instruments, since the provisions of section 1246 of the Civil Code give him the right to compel Gandía to put into public instruments the agreements entered into by them as stated. He is not deprived of that right by the fact that the notary who attested the deeds may remedy their defects by means of a notarial document whereby he may certify to his acquaintance with the parties thereto as provided in the Royal Order issued in Spain on July 13, 1883, for various reasons. Tliat Royal Order bad no force in Porto Rico after tbe enactment of our Notarial Act; because that Royal Order does not impose on notaries tbe duty of executing such notarial documents, but simply authorizes them to do so, and because section 1246, supra, grants to tbe contracting parties without limitation tbe right to compel each other to execute a public deed when so required by law. Therefore the complaint contains sufficient facts to determine a cause of action.

The second assignment is to the effect that the court erred in holding that it was the defendant and not the notary who had to execute a deed correcting the error committed by the notary in failing’ to certify that he knew the contracting parties.

What the judgment says is that “the defendant execute before a notary a new deed of dissolution and liquidation of partnership in exact agreement with deed No. 28 of dissolution and liquidation of partnership executed in San Juan, Porto Rico, on July 24, 1916, before notary Cayetano Coll y Cuchí, remedying and curing its defect,” and a similar pronouncement was made therein as regards the other deed; but we do not think that it can be inferred from those words that it is the defendant who must remedy and cure the defect, but that new deeds should be executed before a notary who shall cure the said defect.

In the third and last ground of appeal it is alleged that the judgment is erroneous because it grants more than was prayed for by the plaintiff; but that is not so. The suit was brought to cure the defect in the deeds and therefore the judgment rendered is consistent with the allegations of the complaint in ordering the execution of new deeds, although it was prayed in the complaint that the defendant execute a new' deed ratifying the tvjo former deeds.

The judgment appealed from must be affirmed.