Blanco v. Registrar of Property

Mb. Chibe Justice Quiñones,

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

As regards the first reason for his refusal, urged by the registrar, namely that inasmuch as Juliffin Blanco y Sosa has no record of his ownership of the shares pertaining to Julio and Guillermo Pérez y Acosta, and Lucas Blanco y Pé-rez, in the house in question, said ownership being recorded in their favor in the Registry of Property, the provision contained in article 20 of the Mortgage Law must be strictly complied with, according to which, if the property transferred or encumbered is recorded in favor of a person other than the one executing the transfer- or encumbrance, the registrar shall refuse to make the record requested.

As to the second reason alleged in the registrar’s memorandum, inasmuch as the assignment awarded to Julián Blanco y Sosa in the testamentary proceedings for the division of the estate of his father-in-law, Lucas Péi’ez y Pérez, of a share in the value of house No. 91 on San Francisco street, in this city, amounting to Jwo thousand nine hundred and sixty-seven pesos and eighty-seven centavos, Mexican money, for the payment of a mortgage upon said house for a like sum, it was in reality an acquisition of property for a valuable consideration; and as said assignment or award occurred when his first wife, Antonia Pérez, was still living, there is no doubt that the share in the value of the house, thus acquired, belonged to the conjugal partnership, according to the law in force at the time said award was made, namely, in the year 1881, when the division of the estate of Lucas Pérez was made and approved, and according to which property acquired by any of the spouses for a valuable consideration during the marriage shall be considered' as of the conjugal partnership, unless it be proven that it was acquired with property belonging exclusively to the husband or to the wife, upon which point the old Civil Code agreed with the one -now in force; and as, on the other hand, it does not appear that the estate *65of Antonia Pérez Ras been liquidated, Julián Blaneo y Sosa bad no power validly to sell tbe joint share in question, at least so far as Lucas and Juan Blanco y Pérez and Julián Blanco Steel, are concerned, they not having waived the right they may have in aforesaid joint share, as heirs of the de-' ceased Antonia Pérez.

The foregoing conclusions are not destroyed by the fact that the share in question in the San Francisco street house-was awarded to Julián Blanco y Sosa, as testamentary executor of his-father-in-law, Lucas Pérez y Pérez, or because he-had paid the mortgage on said house subsequently to the death of his first wife, Antonia Pérez, with money belonging ex-, clusively to himself, as stated in the document; in the first place, because by virtue of the adjudication made to the executor Julián Blanco, the title to the share transferred to him by the heirs in the value of the house, was acquired by Ju-lián Blanco y Sosa, in his name as a private individual, without any. responsibility other than that of satisfying the mortgage upon the house; in the second place, because, even though the payment had been made after the dissolution of his marriage with Antonia Pérez and with money belonging to himself, which has not been proven in any manner, this circumstance would not alter in the least the nature of the acquisition of the title in its origin and would only be the occasion, in any event, for a settlement or liquidation of accounts between the widower, Julián Blanco, and the heirs of his first wife.

As to the third or last reason alleged in the registrar’s decision to the effect that inasmuch as the second wife of the vendor,. Julián Blanco, had not appeared, at the execution of the document, to give her consent to the sale of *67the various shares'which, as appears from said document, were acquired by the vendor after his second marriage, according to section 159 of the Civil Code, the sale contains a defect which renders the obligation null and void, the same constituting, according to article 110 of the Regulations for the Execution of the Mortgage Law, a defect not capable of correction, which precludes the admission of the same to record in the Registry of Property.

Inasmuch, therefore, as the ownership of the shares referred to herein are not recorded in favor of the vendee, Antonio Blanco y Pérez, he lacks authority to mortgage the same in a valid manner.

In view of the legal provisions cited above, the decision placed by the Registrar of Property of this city at the end of the deed of purchase and sale in question, is approved in all its parts, and said deed is ordered to be returned with a copy of this decision to the Registrar of Property for his information and guidance.

Justices Hernández, Figneras and MacLeary concurred. Mr. Justice Sulzbaeher took no part in the decision of this case.