after stating the foregoing facts, delivered the opinion of the court.
The findings of fact and the conclusions of law contained in the judgment appealed from are accepted.
The effects of the notice of attachment made at the instance of Bernardo Camacho being properly set forth in the third conclusion of law contained in the judgment appealed from, it cannot affect the right of ownership which Tomás Vélez y Vélez acquired in the property the subject of the complaint in intervention, almost sis months before, by virtue of the contract of purchase and sale; this doctrine is furthermore in harmony with the principle that “the first in time is the first in law.”
Article 44 of the Mortgage Law does not conflict with the first paragraph of article 71 of said law, nor is its scope in the specific case to which it is to he applied unknown; but the moment therefor has not arrived, nor are the other paragraphs to be considered, as they refer to a method of procedure absolutely foreign to the question in controversy.
Upon an examination: of the contract of purchase and sale executed on September 18, 1901, it is not possible to invoke a consideration of section 1095 of the Civil Code in order to deduce that the purchaser and plaintiff in intervention Vélez did not then acquire the property right in the estate because it was not delivered to him, for apart from the fact that this matter has not been discussed in the proceedings, nor been the subject of evidence, the question to be considered and decided here is confined solely and exclusively to the rights iu *43the estate in-litigation of the parties to these proceedings, as they appear from the record.
This being the ease, it must he agreed that the sale made by Sergio Berengner to Tomás Vélez was perfected and is binding upon both, because they had agreed on the thing the subject of the contract and on the price, even though such thing had not been delivered, as established by section 1450 of the Civil Code.
Camacho had only a personal right of action against his debtor Berengner, and not having acquired any real right of action by the notice of the attachment, other than that mentioned in article 44 of the Mortgage Law, neither he nor the vendor can effectively deny the right of the purchaser to enjoy the ownership of the estate, and the right to recover it, which is the object sought by this intervention.
Considering the question at issue in this light, section 1095 of the Civil Code hereinbefore cited, is not violated, because here we have seen that the vendor of the thing became bound under the contract of purchase and sale, and the creditor who had the notice of attachment made was not, nor- could he have been, in possession thereof, to plead in his favor any property right whatsoever.
Tomás Vélez y Vélez would not have improved his position had he had a cautionary notice made of his action to compel Berengner to execute the deed of sale, because he was then exercising a personal right of action, and such a notice, even if made could not have had any effect by reason of the fact that it is not included in any of the cases set forth in article 42 of the Mortgage Law.
'The costs should be taxed against the defendants.
In view of the legal provisions cited in the judgment appealed from and in this opinion and in the decisions of the Supreme Court and those -of the Supreme Court of Spain of October 12, 1895, February 19 and May 12, 1886, we adjudge that we should affirm, and we do affirm, the judgment ren*44dered by the Mayagüez court on April 1, 1903, and we tax • the costs against the defendants.
Chief Justice Quiñones and Justice Wolf concurred. Justices Hernandez and MacLeary dissented. Me. Justice Hernández.