Will v. Tornabells

2 P.R. Fed. 165

Opinion

Rodey, Judge,

delivered tbe following opinion:

This matter is before tie court at tie present time on a motion of El Banco de Soller, of Spain, and Eritze, Lundt, & Company, of Mayaguez, P, R., to have tie pieces of property upon which they respectively allege they have mortgages stricken from the list of properties which the receiver, recently appointed by this court, was authorized to take possession of. It appears from the argument made by counsel on this motion; when recently presented, that the bill of complaint was filed on June 23, 1902; that service of the subpoena was made-upon all but two of the defendants four days later, on June 27, 1902; on one other defendant on July 1, 1902; and the remaining defendant bas never been served, but be, as it is said, is not a necessary party.

Tbe complainants are all judgment creditors of tbe defendants J. Tornabells Company, .'and seek by’their bill to follow wbat they allege is a fraudulent transfer of some twenty odd pieces of'-'rfeaí1 estate) and'subject tbe same to tlxe‘ payment of tbeir judgment claims. Tbe Banco de Soller took a mortgage on some of tbe property mentioned in complainants’ bill, on June 18, 1902,. five .days, before tbe bill herein was filed, but this mortgage was not recorded until July 3, 1902, or two akyá after every '¡íefbnd'á'iit .that has been served with'process in tbe cause bad 'been served. Thus it appears that, although tbe mortgage of tbe -Saneó''de Soller-was'taken five days before the bill was filed, it was not recorded until tbe chancery Us pendens effect of tbe complainants’ bill was in full force. .Therefore, -whatever tbe rights of the Banco de. S,oiler.are, (and the court does not decide them at this time), it is manifest that this court was first to have jurisdiction of tbe subject-matter in controversy,' affecting the titilé tó the land in question.., Therefore, any act of tbe insular court in tbe way of foreclosing such mortgage could1 hot 'affect the final decree-herein. ■

As to Fritze, Lundf, & Company, tbeir mortgage was taken, as it is said,, long, after the'filing of the .bill herein, and therefore, ’ they (are, ^without question, subject to',' and bound byj the notice of Us. pendens,that, resulted from the filing of’compláíh-.qptsbbilh.

•v..TÍie matter of-the effect-of a chancery notice, of lis pendens - jn .'this, jurisdiction, in the absence of any .warning "notice‘in |tk^- munty records, as against the local, registry or mortgage dgw,- is.now.s«br<Í?-¿dme,.and, so far as this court is concerned, instare-: deqisis, fas jt ;is- pending in tbe Supreme - óourt of tbe Jln-ited.States in.cause No. 253,.entitled Romea y. T.odd, ante, p. 9, appealed from tbis court.

Footnotes

•

* That is a case wherein the question referred to is squarely raised, and where a previous judge of this court held that the chancery notice of Us pendens is in full force and effect in-this'court in P6rto Rico, and that all purchasers or mortgagees of property affected pendente lite are bound by it.

The court therefore holds that the motion to strike out of the list of property of which its receiver should take possession, the pieces of the same upon which the Banco de Soller and Fritze, Lundt, & Company have alleged mortgages, must be denied, and the rights of the parties; must be litigated in this court; but the same is done without prejudice to said parties to press a motion to speed the proceedings in the main •cause. And, in that behalf, it is

OedeRed: That the complainants'in the main suit, within ten days from this date, cause the said Banco de Soller and the said Fritze, Lundt, & Company, to be made parties defendant in the premises; and further, .that no delay shall occur in bringing to issue the additional pleadings thus made necessary in the premises.

The court is tif ‘opinion that the 'complainants in this cause are guilty of unwarranted laches and delay in the prosecution of their suit, the same having been pending for four years here with little or nothing substantial, looking, towards the original objects of the bill, having been accomplished; and warns.;'theiki-;thát"thé rights of'-these moving parties-¿--no,$"t0’''-1)e brought in as defendants, wilThót'be permitted to be prejudiced by further unnecessary delay in the premises. These new parties will be heard at all proper times hereafter, if it shall happen that the cause is not speeded, as the court intends-by this order it shall be.

[Reversed in 206 U. S. 358, 51 L. ed. 1093, 27 Sup. Ct. Rep. 724.]