Hidalgo v. García de la Torre

Mr. Justice MacLeary,

after making the aboye statement of facts, delivered the opinion of the court as follows:

The findings of fact contained in the judgment appealed from are accepted. According to the express provision of article 44 of the Mortgage Law, and the jurisprudence established by the Supreme Court of Spain, and followed by this Court in several cases, such as the decisions of November 1, .1902 and February 26, 1903, a cautionary notice of attachment granted by judicial decree and entered in the. Registry of Property, being intended solely to guarantee the result of a trial, does not alter the nature of obligations, nor can it convert a personal action into a mortgage action, its only effects being that the .creditor who obtains it in his favor shall have preference, only with regard to the property entered, over those who may have other claims against the same debtor contracted subsequently to such entry.

The effects of the cautionary notice of attachment, entered at the request of Lorenzo Martinez, on lands belonging to Victor Libran, being limited to the extent hereinbefore stated, it cannot impair the mortgage right acquired in said lands by Felix García de la Torre under the mortgage deed executed in his favor by aforesaid Victor Libran prior to the entry of the attachment to secure a loan, notwithstanding the fact that the record of the former was -made after the entry of the latter, for when said record was once made, the requisite which was lacking in order that the mortgage might be validly constituted, was complied with pursuant to article 1876 of the Civil Code, and thereupon all its legal effects were necessarily produced.

According to paragraphs 3 and 4 of article 1923, and 2 of 1927, both of the old Civil Code, the credit of García de la Torre is entitled to preference' by reason of its character as a mortgage, over that of Lorenzo Martinez, now Ignacio .Hidalgo, with respect to the lands upon which the mortgage and attachment existed, inasmuch as the former, being a mortgage, directly and primarily affects the property on *135which it is imposed, pursuant to article 105 of the Mortgage Law, while the latter, being merely personal, can have preference only with regard to the property entered, over those who have other claims contracted subsequently to the cautionary notice of attachment, according to article 44 of aforesaid Mortgage Law; a condition which does not exist with regard to the credit of García de la Torre, which was contracted prior to the entry of the cautionary notice of attachment.

For the reasons above set forth, upon rendering iudgment decreeing the cancellation of a mortgage and all notices relating thereto, entered in the Registry of Property as prayed for by Ignacio Hidalgo, in an action brought before it, the trial court has violated paragraphs 3 and 4 of article 1923 and 2 of 1927. of the old Civil Code, and articles 105 and 44 of the Mortgage Law, as also the legal doctrine announced in the judgments hereinbefore mentioned, there being no need of considering the other points upon which the appeal is based.

We adjudge that we should reverse, and do reverse, the judgment rendered by the District Court of Mayagtiez on October 16, 1902, and accordingly dismiss the action brought by Ignacio Hidalgo against José Felix García de la Torre, with costs of the proceedings in the trial court against plaintiff, and without special imposition of costs on appeal. This decision is ordered to be communicated to the court below and the record returned for compliance herewith.

Chief Justice Quinones and Justices Hernández and Fi-gueras, concurred. Mr. Justice Sulzbacher did not sit at the hearing of this case.