after making the above statement of facts, delivered the opinion of the court:
G-ood practice requires that before entering upon the fundamental question of ownership, we should first analyze such issues incidental to the main action to determine the question of ownership, as have been raised by the defendant, both in the answer to the complaint and in the appeal taken to this Supreme Court.
The first question to be considered is the one referring to the want of legal capacity which, by way of dilatory exception, was pleaded by the Fiscal on behalf of the people of Porto Eico, in answering the complaint, on the ground that the plaintiff should prove beyond doubt the character and representative capacity under which he sues, because if he does so by reason of a settlement in tail, there is wanting, according to him, evidence as to the existence of the entailed estate, which must be proven by the instrument instituting the same; and if he sues as an heir, it should have been established, by means of documents and other proper evidence, that the property claimed has, by strict and legal succesion or by a duly executed will, come to the possession of the plaintiff.
In this case there is nothing which refers to entailed estates, nor is such issue raised between persons contesting the benefit thereof; but even granting this, for the sake of argument, it would still appear that the deficiencies pointed out by the fiscal refer to the absence of those documents upon which the plaintiff bases his right, and this, which is known as sine actiones agis, would affect the fundamental question (article 503 of the Law of Civil Procedure), whence it follows that the defendant ha,s confused such a lack of right of action with the want of legal capacity mentioned in para*238graph 2 of article 502, and article 532 of aforesaid Law of Procedure.
The plaintiff has complied with the last two precepts above enunciated, inasmuch as in claiming his rights as legatee of the Duchess de Mahon Crillon, he has proved his character as such by the will of said lady and by her certificate of death, whence his capacity is perfectly defined, a capacity which, on the other hand, has already been recognized by the Administration, and cannot now be ignored by its representative.
The second issue raised is that set forth by the fiscal in the following terms: ‘1 That only the President of the United States or, in a proper case, the G-ovemor of Porto Rico, can pronounce the decision left pending by the Queen of Spain;” but an important point is here lost sight of, namely, that it is not a question of giving or withholding a decision of an administrative character, by which lands belonging to either political entity mentioned above, are granted or refused, for which it is evident that this court has no powers; but one of a right to protection in the possession of lands, which constitutes a title of ownership, dating as far back as March 10, 1830, and confirmed by the decree of April 7, T859; hence the point discussed in this case is whether said ownership has subsisted up to this day, in the succession of time, or whether by acts and occurrences contrary to law the plaintiff has been deprived of each and every one of the rights pertaining to said ownership.
If such is the case, it undoubtedly devolves upon the judicial authority to extend to private property that protection wherewith it has been exclusively entrusted by the law, and in that sense it is evident that it acts within the scope of its powers in taking cognizance of the matter and deciding as to whether or not a violation has been committed against said ownership, such questions having at all times appertained exclusively to the ordinary courts.
These principles are embodied in the wise Constitution of *239the United States which declares, under article V (of Amendments thereto), that no person shall be deprived of his property without dne process of law, and this right, as is natural, must be determined by the proper judicial authority, whose power must be recognized and respected whenever, as in the present case, questions of ownership are dealt with.
And now, entering upon the real and only fundamental issue involved, it is necessary to determine whether each and every one of the proofs required in all actions instituted for the recovery of possession have been produced, these proofs being, in the first place, that of ownership, and, in the second place, the identification of the property sought to be recovered.
In examining the evidence submitted, due regard must be had, as is proper, to such public documents issued by competent authority as have been brought to the record, within the prescribed period of time, and which have not been challenged as spurious, either civilly or criminally, and to such evidence as has been taken, after citation of the adverse party, setting aside all antecedents which can be used only as means of illustration but do not constitute evidence having all the requirements prescribed by law.
It is a fact admitted by the fiscal, representing the defendant, that lands were granted in this Island to Duke de Crillon, afterwards Duke de Mahon, by virtue of Royal Cédulas of July 4 and September 25, 1776, which grant was ratified by ’Rojal-Cédula of July 19, 1792.
The plaintiff, Pierre Enmanuel, Baron de Laurens d’Oise-lay, has fully proven that the lands under discussion had been held, since April 22, 1829, not only in the name of the Duke, but also in that of the Duchess, from whom the plaintiff derives his right, said possession, moreover, being recognized by the board itself in the minutes of their session of April 3, 1854, when the lands in question were declared by them to be waste lands; and, besides, .the plaintiff’s right of ownership *240is fully borne out by the title of protection of March 10, 1830, maintaining the Duke de Mahon Crillon in the possession of said lands, issued, with authority therefor, by Captain-General Don Miguel de la Torre.
The action taken by the board of apportionment of waste lands, at their session of April 3, 1854, declaring escheated to the Crown the lands claimed in this controversy, on the ground that they had been abandoned, cannot have the scope and importance attached to it in this suit, namely, that of wiping out the rights springing from the titles and acts mentioned herein, because said action was taken without prejudice to submitting the same to the approval of the' Queen, which requisite does not appear to have been complied with, and because said action should be understood as having been rendered ineffective by Royal Order of April 8, 1857, issued at the instance of the legal representative of the Duchess de Mahon, by which sovereign decision the effects of the notice given to the heirs of the Duke, through the French Consul, in consequence thereof, was directed to be left in suspense. And aforesaid royal decision went still further, inasmuch as it was also ordained therein that the lands not yet put under cultivation should in no ivise be awarded to new grantees; all this with the express reservation of the Queen’s final decision in the matter, which means that the decision of the board of apportionment of waste lands was not final, and Captain-General Cotoner, so understanding it, referred the royal order to aforesaid board, on July 21, 1857, that is, to the very body that had declared the escheat, as may be seen at folios 27 to 31, inclusive, of the record, in which appears the aforesaid petition and a transcript of the royal order mentioned above, which documents must be accepted as authentic, inasmuch as they have not in any manner been contested by the defendant.
To further strengthen the belief that aforesaid decision had produced no legal effect whatsoever, we have the order of the Governor-General of this Island, dated April 7, 3859, *241directing that Count de Sambuy, as representative of the Estate of Duke de Mahon, be again put in possession, and it cannot be maintained that said order was not carried'out, on the ground that the papers connected with the proceedings thereof were not joined to the record, since on folio 37 a certificate appears, issued by Carlos Budet y Texidor, secretary of the municipal council of Lares, wherein the letter-book of 1859, existing in the archives of said corporation, is referred to, and a transcript therefrom given of the draft of the official communication of June 4, 1859, transmitting the record of proceedings instituted by the alcalde of Lares for the purpose of giving possession of the 20% caballerías of land in barrio Cibao of that municipality, to Count de Sambuy, in the representative capacity under which he then sued.
If the papers connected with the possession proceedings which are shown to have been transmitted to the Governor-General were mislaid or lost in his office, and it has therefore been impossible to bring them to the record, such an accident, for which the plaintiff was not responsible, cannot impair his rights, when, as in the -present case, the fact of the possession given as a result of the Governor’s order has been proven by the draft of said communication of a remote date the authenticity whereof cannot be questioned, because it refers to what is found in the archives of 1859, and because that certificate, issued by the secretary, wherein is inserted the draft of the letter of transmittal of the record of proceedings dealing with the possession given, no doubt with all the established formalities, is viséed by the acting alcalde of Lares and stamped with the seal of his office, which formalities preclude all idea of falsification, because the secretary issuing the certificate, who is the custodian of the draft of the letter, knew that he was doing so under his official liability, according to rule 4 of article 596 of the Law of Civil Procedure.
Said certificate, containing the draft of the letter of transmittal of the record of proceedings for the purpose of giving *242possession, lias the character of a formal public document, according to paragraph 4 of article 595 of aforesaid Law of Civil Procedure, because it is a copy made and authenticated by the secretary in charge of the archives, by order of a competent authority, such as the alcalde.
Lastly, it is a custom admitted for the proper conduct of offices, and especially to avoid responsibilities for the loss of official documents transmitted, to preserve the drafts thereof, and in the present case this precaution has saved the evidence of an important fact in the suit, such as the possession consummated, which cannot now be denied without first proving the falsity of the draft of the official communication, a thing which has not been attempted, nor has there even been a doubt as to the existence of the original draft; and such being the case, the possession given must be admitted, because the said draft is effective herein, and because to deny the possession given, while accepting the truthfulness of the draft, would be really inconsistent.
The fact of possession is likewise strengthened by the further fact, also proven and admitted by the fiscal, that the Duke de Mahon, or his successors, or the' Duchess de Mahon Crillon, had paid the taxes assessed on said lands, from the year 1862 to the year 1899, that is, thirty-seven years; from which circumstance it must be inferred that said lands were under cultivation, for, until the change of sovereignty, and the approval on March 1, 1902, .of the revenue law in force, taxes were imposed on the basis of profits, and if there were none, owing to the absence of cultivation, said taxes could not have been assessed or collected.
These proceedings, in which an action for the recovery of possession has been exercised, are directed against the entity which, according to the plaintiff, has committed a real spoliation, that is, the People of Porto Rico, Which is the one appearing at the public office of the registry of property as the detainer of his rights of ownership, and the success of the *243action exercised cannot be hindered by the fact that it has not been likewise directed against others who are merely alleged ’ by innuendo to be possessors of the lands in question, because the title by which they possess does not appear, and because it is possible that they are colonos of the plaintiff’s; but in any event, as they have not been parties to this suit, the decision that may be rendered herein can in no way prejudice them, their rights being left unimpaired, to be asserted in the proper proceeding, when the validity of their titles, if they have any, and such other evidence as they may submit can be considered and determined.
By Boyal Decree of April 17, 1884, the Begulations for the adjustment of waste lands in this Island were approved, and articles 2 and 3 of said Begulations read as follows:
“Art. 2. For the legal effects of these regulations, persons shall be considered as owners who show that they have acquired the lands by means of a royal cédula, a grant from the Superior Board of Allotment of Waste Lands, or a title issued by competent authority, and that they have complied with the conditions imposed upon them by the concession, irrespective of the time during which they may have been in possession.
“Persons shall also be considered as owners who, though lacking a dominion title, show that they have possessed the aforesaid lands, without interruption, for a period of twenty years, if under cultivation, and of thirty years, if not.
“To be understood as cultivated land it is necessary to prove that the same has been under cultivation during the last three years.
“Art. 3. All grants of lands in general, and especially those made from the year 1850 to the date hereof, with respect to which the conditions imposed have not been fulfilled,, are declared forfeited, the lands reverting to the State.”
By Royal Order of August 20, 1888, published in the Gazette of this Island of October 11, following, it is resolved “That article 3 of the Begulations be amended to read as follows:
*244“Grants of lands, in general, and especially those made from the year 1850 to the year 1884, with respect to the conditions imposed have not been fulfilled, are declared forfeited, the lands reverting to the State, unless the grantees have been in possession thereof for more than thirty years, which is the term fixed by the foregoing article for prescription as to uncultivated lands, held, without title. ’ ’
Even presuming possession without title, and that the lands in question are uncultivated, it must be declared, pursuant to the royal order and regulations cited above, that the plaintiff is the owner of the lands claimed by him, inasmuch' as the grant subsists, and said lands cannot now be considered as having escheated.
The conditions required for the prosecution of an action to recover possession have been proven,'such as the ownership and identification of the thing claimed, which latter evidently is that portion of lands described and recorded in the registry of property, the entry whereof must likewise be declared null and void, if the effects of the ownership existing in favor of the plaintiff are to be respected and the principle laid down in section 4 of the revised Civil Code is to prevail, namely, that acts executed contrary to the provisions of law are void, and said entry is therefore void which was ordered illegally and without complying with the requirements established by law, said errors being afterwards recognized by the Treasurer of Porto Rico, as shown by his official communication of June 4, 1901, wherein he tells the representative of' the plaintiff that if he had had before him the documents, which are those filed with the record, he would not have acted in the premises as he did, — an unequivocal and honest declaration which also confirms the plaintiff’s right.
In view of rule 63 of General Orders No. 118, series of 1899,, of the provisions cited and the pertinent ones cited in the judgment appealed from, as also the act of the Legislative Assembly, approved March 12, 1903, and articles 358, 364 and 371 of the Law of Civil Procedure, we adjudge that we should *245affirm and dQ affirm the judgment rendered by the District Court of San Juan, August 3, 1902, without special imposition .of the costs of this appeal. This judgment is ordered to be communicated, and the record returned to the trial court.
Chief Justice Quiñones and Justice Sulzbacher concurred. Justices Hernández and MacLeary dissented.