Surís Agrait v. Registrar of Property of San Germán

55 P.R. 524

• Court: Supreme Court of Puerto Rico
• Decided: November 7, 1939
• Docket: No. 1059
• Status: Published

Opinion

Mr. Justice De Jesús

delivered the opinion of the Court.

By deed No. 25 of June 12, 1939, the spouses Rosendo Iri-zarry Pagán and Maria Luisa Vega cancelled a mortgage on a property of the conjugal partnership which guaranteed certain promissory notes to hearer of which they were the holders on the said date. On the same document said spouses grouped the property described under letter A in the deed with another described under letter B, which was the private property of one of the spouses. On the property so grouped, described under letter C, they constituted a mortgage by the same document, in favor of Eugenio Quiñones Rodríguez.

The deed was presented to the Registrar of Property of San Germán and the registrar recorded it only in regard to the cancellation of the mortgage, refusing the record in regard to the grouping and the mortgage because property belonging to the conjugal partnership and privately to the spouses cannot be grouped.

The petitioner accepts the principle on which the registrar’s ruling is based but invokes the cases of Vázquez v. Registrar, 28 P.R.R. 717 and Vilá v. Registrar, 27 P.R.R. 848, to sustain that the grouping can be made.

In the cases cited by appellant the spouses grouped properties of the conjugal partnership with private properties of one of them and after grouping them, sold the resulting property. In such a ease, as the purchaser acquired title to the properties of the conjugal partnership as well as to the private properties of one of the spouses, the grouping is recordable, since in any case the purchaser when he acquired the properties had a perfect right t'o group them. As the vendors grouped them with the consent of the purchaser, for if he had not consented he would not have accepted the sale and signed the deed, it is equivalent to a grouping by the purchaser himself. Qui facit per alitm, fa-cit per se. The present case is different. This is not the case of a purchaser but of a mortgage creditor, who acquires a real right on the mortgaged property, but not' title to the same. As the petitioner does not Rave title to the mortgaged properties, he is not their owner, and not being the owner, he lacks the most important requirement to he 'able to carry out a grouping, which is that he must be the owner of the grouped properties. Section 61 of the Regulations for the Execution of the Mortgage Law. Neither the mortgage creditor nor the lessee have any right to group properties which do not belong to them. For this reason it' cannot be said that the grouping is made by the mortgage creditor as the petitioner erroneously sustains. If the grouping cannot be recorded, neither can the mortgage on the grouped property be recorded, since a mortgage cannot be constituted on a property which does not even have legal existence, as in this case.

For the foregoing reasons the ruling appealed from should be affirmed in all its parts.