Sola v. Morera

Me. Justice Sulzbachee,

after stating the foregoing facts, delivered the opinion of the court.

The findings of fact of the judgment appealed from are accepted.

In their answer the defendants merely ask that the complaint be rejected and that they be acquitted thereof, the note of the suspension of the proceedings made in the verbal action being cancelled, but without seeking a declaration as to the nullity of the deed of sale in favor of the plaintiff in intervention, Sola, or the rescission of said deed, as .would be the case if the basis of the answer were the invalidity of the consideration for its nullity, or if it should have been rescinded in consequence of having been executed in fraud of creditors.

The grounds set up by the defendant do not constitute legal causes for the annulment of the deed of ownership of the plaintiff in intervention, and in order to take into consideration the grounds for the nullification of the sale made *14in fraud of creditors, it is necessary to bear in mind article 1294 of the Civil Code, which declares the action to be a subsidiary one, which can be maintained only in the absence of some other legal remedy, and this fact has not been established.

The application for the annulment of the document showing the ownership of the plaintiff in intervention, or at least an allegation of the fact, should be considered necessary to order the annulment of the record thereof in the registry of property, and if it has not been prayed for or alleged, it would be improper to order the registrar to proceed to such annulment of the entry.

Inasmuch as the deed of purchase of Solá was prior to the cautionary notice of the attachment levied in favor of the defendant, article 44 of the Mortgage Law must be applied in favor of the plaintiff in intervention, as has been held by this court in analogous cases, the said cautionary notice of attachment not operating to his disadvantage.

Reversing the judgment appealed from, we adjudge that the complaint in intervention was properly presented, and we order the property in question to be left at the free disposal of the plaintiff in intervention, the costs of the suit to be paid by the opposing defendants, and no special imposition being made of the costs of the appeal. The records are ordered to be returned with the proper certificate.

Chief Justice Quiñones and Justices Hernández, Figueras and MacLeary concurred.