Tirado de Méndez v. Fajardo Sugar Co.

40 P.R. 512

Opinions

Mr. Justice Wolf

delivered the opinion of the court..

This is a case in which the appellant, did not press for a hearing. The principal facts took place in October or November of 1927: From an order of the District' Court of Humaeao dated November 15,J927, the appeal was taken. After several extensions and hoping to settle the case, the hearing was postponed when set for the 28th of December, 1928. We finally heard the case in April, 1929, but the ap-pellee has not aided ns in the consideration of the important questions submitted.

The order complained of was as follows:

“Considering the motion of attachment presented by the complainant wherein she prays that the defendant be prohibited from granting, assigning or executing in any way the mortgage credit made between the parties by deed No. 23, executed March 11, 1925 before the notary of Fajardo, Ramón P. Rodríguez Alberty, and considering sections 2, 3 and 4 of the Act to Secure the Effectiveness of Judgments, approved on the first of March, 1902, the court orders the defendant, its officers, agents, employees and any other persons who are under its orders, io refrain from assigning, granting or executing in any way the mortgage credit, constituted by said deed No. 23, with respect to the two instalments of the principal to mature-the 30th of June, 1926 and the 30th of June, 1927, cautioning the said persons that they may be punished for contempt if they disobey the present order. The complainant will give a bond in the sum of $2,000 before this order shall take effect.”

It seems fairly obvious to us that, upon a theory that he has paid all that is presently owing, a mortgagor has no right to obtain an order prohibiting his creditor from executing, ceding or assigning the mortgage. In the instant case instal-ments of principal and interest were still owing, although, according to the complaint, they were not due. At this writing we are thoroughly convinced under the facts of the complaint that the District' Court of Humacao had no power or authority to prevent the cession or transfer of the mortgage credit.

The principal controversy in this case is whether a court mai^ by an order prohibit the mortgage creditor from executing a mortgage. The theory of the complaint is that the complainant has either paid or deposited in court -all the in-stalments of principal and interest that are due. In anticipation of a mortgage proceeding this suit is filed. We have had some doubts in our midst whether, when a mortgage proceeding is begun, a debtor might not have some immediate rights other than those specified under the Regulation for the Execution of the Mortgage LaAv, but we need not dilucidate the doubts in this opinion.

"We are entirely clear that a mortgagor may not come into- court and obtain an order or attachment to prevent this creditor from executing the mortgage or transferring the credit, as was attempted in this case. Nowhere in the law do we find any justification for the theory that a mortgagor, upon alleging payment of his present indebtedness, may enjoin a person alleging a claim from testing in a court the fact of such payment, or preventing the foreclosure of a mortgage if the terms of the contract have not been fulfilled.

The order appealed from will be annulled and the case remanded for further proceedings not inconsistent with this opinion.

Chief Justice del Toro and Mr. Justice Hutchison dissented.