Dissenting Opinion -of
Justices Hernández and MacLeary.The undersigned associate justices do not concur in the foregoing opinion, rendered by a majority of their colleagues, and in lieu thereof submit their opinion as follows:
The findings of fact of aforesaid opinion are accepted, and supplemented with the following:
According to a report a copy of which was filed with the record, prepared on March 8, 1869, in pursuance to instructions from the board of allotment of waste lands by their fellow-member Lucas Garcia Ruiz, Count de Sambuy, representing the interests of the Estate of Duke de Mahon, addressed a petition to the Governor-General of this Island, under date of July 25, 1865, including two public documents executed in Avignon, Prance, on the 10th of July aforesaid, to wit: a general power of attorney conferred by the Duchess de Mahon upon Count de Sambuy, and a public instrument wherein, among other particulars, the ducal title of Mahon, together with the Grandeeship of Spain, of the first class, and the fee-tail instituted in connection with said ranks, by deed executed in Madrid on August 27, 1794, assigning to said fee-tail the lands granted to the Duke de Mahon, according to the title issued by Captain-General Don Miguel de la Torre, on March 10, 1830, are recognized in favor of Maria Antonia Gabriela Balbo Berthone de Crillon, the remaining lands that had belonged to the Duke de Mahon in this Island being awarded to the other heirs. These documents were presented by the Count de Sambuy, according to his statement, for the purpose of their preservation by the Government, together with other *246documents referring to the Duke de Ma'hon, after registering the same at the Contaduría General, Audiencia Territorial, alcaldía of Lares and Anotación de Hipotecas, to the end that the proper authorities might safeguard the grant made by King Carlos III and the estate-tail founded on behalf of the Duké de Mahon, Conqueror of Minorca. Aforesaid documents, together with the petition, were referred by the Governor-General to the hoard of allotment of waste lands, which commisisoned their fellow-member Lucas Garcia Ruiz to prepare the report called for.
Said member of the board, after examining the necessary antecedents, was of opinion that a report should be submitted to “His Excellency the Superior Civil Governor” to the effect that “inasmuch as said Estate (that of the Duke de Mahon) could not he considered as owner of the lands referred to in such an indefinite manner in the claim presented, if the aforesaid Estate, or its representative, should deem it advisable to assert or vindicate its right of ownership over said lands, the same must be specifically determined; and in case said lands should appear to he under cultivation or held in usufruct created by said Estate or by the representatives of the dukes, their rights therein must be respected; but should such rights be disputed by other private persons who under a different title are cultivating said lands, the representative of the Duke must resort to the courts of justice, which are the only ones having jurisdiction over matters relating to ownership; and, finally, should the lands prove to be unoccupied waste lands, then it devolves upon the hoard to decide as to the validity or invalidity of the grant, as it may deem proper. At the same time, Iiis Excellency the Superior Civil Governor may he apprised that according to provisions of law in force, the_ public instruments forwarded by Count de Sambuy with his letter of July 25, 1865, cannot be registered in the Audiencia Territorial, and the Contaduría General, nor can they be administratively ordered to be registered at the respective Ano-*247taci-ones de Hipotecas. Another matter is presented in the letter and deeds forwarded by Connt de Sambuy, namely, the one referring to the institution of a fee-tail in connection with the Duchy of Mahon and Grandeeship of Spain annexed thereto, by entailing for this purpose one of the four leagues of land awarded in this Island to the first duke. Whether because a royal license was formerly required for the purpose of creating an'estate-tail, or because the creation of fee-tails are now prohibited, it would seem that the incumbrances and impediments instituted by the deed executed-in Avignon over aforesaid league of land, being contrary to our existing laws, can have no legal effect in this Island. The report called for by His Excellency the Superior Civil Governor might be drawn up in the terms above set forth, or in such others as the board should deem more appropriate. San Juan, Porto Rico, March 8, 1869. Garcia Ruiz.”
The board of waste lands approved the report of their fellow-member, and it was also accepted by the Council of Administration, which recommended a decision to the same effect on June 14, 1869, there being no record of the Governor’s determination in the premises.
■The holders of the lands claimed by the plaintiff as his property having been summoned to show the right by which they held, in compliance with the resolution of the Treasurer of Porto Rico, of September 4,1900, as appear from the record presented in the trial, none of them presented a title of ownership, while many declared that the title of the grant made to them in 1854 was on file at the alcaldía of Lares.
In compliance with the Treasurer’s decree, the holders of the lands in question were entered on the assessment-roll of land-taxes for the fiscal year 1900-1901, .with the number of cuerdas possessed by each, aggregating 3,826.50 cuerdas.
Besides the findings of fact of the judgment rendered, the dissenting justices accept the first, second, third, fourth, fifth, *248and sixth conclusions of law thereof, and add thereto the following:
An action to recover the ownership of a thing can prosper only when, besides'proving the ownership and identity thereof, it is exercised against the holder or possessor of the thing sought to be recovered, as was declared by this Supreme Court in a judgment delivered October 24, 1900, in conformity with the jurisprudence established by the Supreme Court of Justice of Spain, prior to the extinction of the latter’s sovereignty over this Island.
Although it was shown at the trial that the Duke de Mahon Crillon had been in the possession of the lands in question, on April 22, 1829, and a writ protecting him in said possession was issued on March 10 of the following year, he thereby securing a true title of ownership, not absolute and irrevocable, but subject to the conditions governing grants of waste lands, said title remained without effect the moment the board of waste lands by their resolution of April 3, 1854, after instituting the proper proceedings, declared.that said lands had reverted to the Crown of Spain, in view of the state of abandonment in which they had been left.
The aforesaid resolution of April 3, 1854, complied with Royal Order of September 15, 1852, declaring that it was necessary to proceed without delay to the reversion of the 27 caballerías that had been abandoned and left without cultivation by the grantee in Rio Grande and Lares, and therefore the provision of the resolution “without prejudice to reporting-such action to the Queen,” cannot mean that it would have no immediate legal effect or that it was to remain in suspense nntil approved by the Queen, but that it would be effective until amended or repealed by the Spanish Sovereign. That such was the case is shown by the fact that the board of waste lands, at the request of the municipal board of Lares, which suggested the advisability of giving to seventy-four residents the portion of lands occupied by them that had belonged to the *249Duke de Mahon Crillon, decided, by a subsequent resolution, to make the award to said possessors, provided that the portion allotted to each should not exceed one hundred cuerdas, the proper authorization for the measurement thereof to be taken out within the period of two months.
The Eoyal Order of April 8, 1857, did not leave without effect the decision of the board of waste lands, of April 3,1854, nor the award subsequently made to seventy-four holders of lands formerly belonging to the Duke de Mahon Crillon, but •directed, in view of the Duchess de Mahon Crillon’s petition to the Queen of Spain, requesting an extension of time for the reversion to the State of the lands granted to the first Duke de Mahon Crillon, that Her Majesty be informed as to the antecedents and state of the matter, and that recommendations' be made as to the manner of reconciling the interests of the Duke’s family with the agricultural interests of the Island, the effects of the notice given through the Consul of Trance to the heirs of the duke being left in suspense, no awards whatsoever of the lands not yet cultivated to be made to new grantees, in the meantime; and inasmuch as the object of the notice to the heirs of the Dulce, through the French Consul, was to inform them that if they still desired to preserve some of the lands awarded him in Fajardo, Naguabo or elsewhere (no mention is made of Lares), he should appoint an attorney to produce the measurement and survey thereof and put them under cultivation within one year, and pay the royal dues, in which case his rights would be respected, as otherwise they would revert to the Crown, pursuant to the circular of which a copy was joined to the notice, it is evident that said notice the minutes whereof are filed with the record and bear date of June 7,1856, does not refer to the decision of the board of waste lands, of April 3, 1854; and therefore the Eoyal Order of April 8, 1857, was not intended to repeal said decision, nor did it suspend the effects thereof; the more so, as the notice refers to lands not reverted to the Crown of Spain, as *250had been those forming the subject-matter of the controversy,, and the royal order only forbids the awarding of new grants, without cancelling those that had been made, such as the ones awarded to the seventy-four residents of Lares.
That the Eoyal Order of April 8, 1857, did not leave without effect the decision of the board of waste lands, of April 3, 1854, which agreed with the Eoyal Order of September 15, 1852, is corroborated by the other Eoyal Order of January 20, 1859, in which the Queen of Spain directs the Governor-General of this Island to extend to Count Manfredo Bertone de Sambuy all such protection and assistance as he was entitled to by his rank, in order that he might take proper steps to recover the lands inherited by his daughter-in-law and ward, Madame María Berton de Crillon, Duchess de Mahon and Grandee of Spain of the first class, without ordering the restitution of any particular lands to said young lady; whence it is evident that the decree of the Governor-General of this Island, of April 7, 1859, directing that the representative of the Duke de Mahon be reinstated in the possession of the lands whereof he had been expropriated, according to the bounderies shown on the charts and documents he might produce, leaving unimpaired the rights of those who possessed them, wholly or in part, to be discussed at the place and in the manner prescribed by law, far from conforming to said royal order which was one of mere protection or recommendation, is in open contradiction therewith; for the Governor, instead of rendering assistance and protection to aforesaid count for the recovery of the lands claimed by him, placed him in possession thereof, — a function devolving upon the board of waste lands, which had ordered the reversion of said lands to the Crown of Spain.
The copy of the official communication of June 4, 1859, addressed to the Governor-General of this Island, in which the alcalde of Lares states that he has the honor of transmitting to said high authority the papers connected with the proceed*251ings liad for the purpose of giving to Count de Sambuy, as the representative of the heirs of Duke de Mahon Crillon, possession of 20% caballerías of lands, in barrio Cibao, within said municipality, agreeably to the communication from said Governor, dated April 7, 1859, which was placed at the head of aforesaid papers, offered only an initial portion of written evidence, but not full and complete proof that Count de Sam-buy, as the representative of aforesaid heirs, had been placed in possession of the above-mentioned 20% caballerías of lands, for such evidence can be furnished only by the record of the proper possessory proceedings; and the absence of said record should have been supplied by some other evidence showing to the satisfaction of the court that the decree of April 7, 1859, had been complied with, notwithstanding the- award made by the board of waste lands to seventy-four residents of Lares, subsequently to said board’s decision of April 3, 1854, declaring the lands of the Duke escheated to the Crown of Spain. Said evidence was rendered the more necessary in view of the fact that by public deed executed July 5, 1900, divers persons, claiming by title derived from aforesaid grant, to be owners and possessors of the same lands the ownership whereof is claimed by the plaintiff, had sold them for 8,000 provincial pesos to Virgilio Acevedo Hernández. The plaintiff, moreover, having alleged that the holders by grant from the board of waste lands in 1854 had been dispossessed of the rights acquired, and that if they did remain on the property it was only as colonos, paying lease-rent to the Estate of the Duke de Mahon, he was bound to file with the record proof of the existence of the lease alleged, wherewith he would have shown that the vendors held the lands as lessees, and that the right of ownership belonged to the Estate of the Duke.
The certificates of taxes paid by the Duke de Mahon Crillon, by the Estate of said Duke, or by the Duchess de Mahon Crillon, from the year 1862 to the year 1889, cannot supply the absence of proof of possesison, for aside from the *252fact that said certificates do not clearly specify the lands to which they refer, they would fill only one of the requisites demanded by articles 391 of the Mortgage Law and 436 of the Regulations for the execution thereof, to prove the possession of real estate.
The wording of the official communication from the alcalde of Lares, of June 4, 1859, affords no light as to what were the formalities observed in giving the possession ordered by the G-overnor-G-eneral, nor can it be inferred therefrom whether it was effected in accordance with the demarcation specified in the writ of protection of March 10, 1830; or whether or not there had been any claims set up by those already in possession ; or whether said claims, if any, had been passed upon by the alcalde of Lares, or referred by him to the G-overnor-G-en-eral for decision; or whether the holders were dispossessed, or permitted to continue in possession; which data are necessary in order to ascertain the nature, extent and scope of the possession given to Count de Sambuy, and to be able to determine whether the lands which were the object therof are the same that the plaintiff claims as his property.
The attorney for the plaintiff has presented as evidence of the ownership alleged such documents as seemed to him pertinent for the purpose, and for the reasons above set forth this is not sufficient to establish said ownership; but he has not alleged prescription as a means of acquiring the same, and therefore he cannot invoke in support of his right articles 2 and 3 of the Regulations for the adjustment of waste lands in this Island, approved by Royal Decree of April 27,1884, nor Royal Order of August 20, 1888, amending article 3 of said Regulations; but even in the supposition that he had in due time alleged prescription, this should be overruled inasmuch as the plaintiff has failed to show, as he was called upon to do, an uninterrupted' possession of the lands in question for more than thirty years.
According to articles 348 and 430 of the old Civil Code, *253which are sections 3,54 and 433 of the one in force, the owner has a right of action against the holder and the possessor of the thing to recover the same, while natural possession is the holding of a thing or the enjoyment of a right by a person, and civil possession the same holding or enjoyment, together with the intention of acquiring ownership of the thing or right; and, therefore, The People of Porto Eico not being the possessor of the lands the ownership whereof is at issue herein, the action to recover possession conld not be exercised against it, but should have been directed against those who had possession and enjoyed said lands and still possess and enjoy them alleging rights of ownership over them, as is to be gathered from the deed of sale executed July 5, 1900, in favor of Virgilio Acevedo, and from the fact that said possessors appear to-day upon the assessment-roll pursuant to an order of the Treasurer of Porto Eico, dated September 4, 1900; while the record of possession entered at the Eegistry of Property of Aguadilla in favor of The People of Porto Eico is not sufficient to invest the latter with the character of possessor, which it had not, for such a record cannot convert into real and true a fact which is not so.
The certificate issued by the Treasurer of Porto Eico on September 14, 1900, for the purpose of entering at the Eegis-try of Property of Aguadilla, in favor of The People of Porto Eico, the record of possession of the lands sold by public instrument of July 5, of aforesaid year, to Virgilio Acevedo y Hernández, did not fulfill the requisites prescribed by article 36 of the Eegulations for the execution of the Mortgage Law, nor could it do so, inasmuch as the most essential of these requisites, namely, the possession of the lands in question, was lacking'in the present case, for the simple and manifest reason that The People of Porto Eico did not possess said lands, and therefore the record of possession made in aforesaid registry of property was null and void.
According to section 1 of the Act of the Legislative Assem*254bly Establishing the Supreme Court of Porto Eico as a Court of Appeals, approved March 12,1903, this court in its deliberations and decisions shall not be confined to the errors in procedure or of law only, as they are pointed out, alleged, or saved by the respective parties to the suit, or as set forth in their briefs and exceptions; but in furtherance of justice it may also take cognizance of all the facts and proceedings in the case as they appear in the record and likewise .consider the merits thereof, so as to promote justice and right and to prevent injustice and delay.
In view of the reasons above set forth, of the legal texts already cited, and judgments of the Supreme Court of Spain, of April 10, 1872, December 4, 1888, and October 5, 1892 — the first in an action to recover an estate and payment of dues, the second in a suit for the annulment of a survey and recovery of lands, and the third in an action to recover possession— as also the judgment of this Supreme Court rendered October 24, 1900, the undersigned justices are of opinion that -the exception of want of legal capacity on the part of the plaintiff, pleaded by the defendant, should be overruled; that the complaint, so far as a declaration of ownership of the lands referred to therein is sought in behalf of Pierre Enmanuel Baron de Laurens d’Oiselay, be dismissed and that it be sustained as to the cancellation of the record of possession of said lands entered at the Registry of Property of Aguadilla in the name of The People of Porto Eico, both plaintiff and defendant being left at liberty to assert their respective rights in due form and manner, and against the proper party, as to the title of ownership claimed by them over aforesaid lands; the costs of the trial and of the appeal to be understood as without special imposition.