DissbNtiNg Opinion oe
On February 10, 1902, Bernardo Camacho presented a petition to the Mayagüez court for the purpose of securing the acknowledgment by Sergio Berenguer as his own of a signature affixed to a promissory note executed in favor of Camacho on March 15th of the preceding year, for $500, payable on August 31st of the same year. Execution having issued for the collection of said sum, an attachment was levied on March 7,1902, on a parcel of land containing 100 cuerdas, situated in the barrio of Boquerón, municipal district of Cabo Rojo, as belonging to Berenguer. . A cautionary notice of said attachment was entered in the Registry of Property of San Germán, under date of the 14th of said month of March.
On January 15, 1902, Tomás Vélez brought a civil oral action in the Municipal Court of Cabo Rojo against Sergio Berenguer, to compel him to execute a deed conveying the ownership of the land in question, pleading in support of his complaint that Berenguer had sold him this land by virtue of a private document, on September 19, 1901, for the sum of $200, of which the vendor acknowledged he had received $100, the purchaser having agreed to deliver to him the remaining $100 at the time of the execution of the deed of sale. The action was prosecuted through all its stages, and judgment was rendered on February 1 following, providing that the defendant Berenguer should within five days execute in favor of Vélez the public instrument pertaining to the contract of purchase and sale entered into by them, upon the delivery by the plaintiff of the $100 he had withheld, as the remainder of the $200, the price of the sale of the real estate.
Sergio Berenguer took an appeal from this judgment to *45tlie District Court of Mayagüez, which affirmed the same by its judgment of May 23, 1902; in consequence thereof the municipal judge of Cabo Rojo, by reason of the default of Beren-guer, on August 18th of said year, executed in favor of Vélez, the proper public instrument, which was recorded in the Registry of Property of San German on the 22nd of said month of August.
Under these circumstances Tomás Vélez, on September 30, 1902, filed a complaint in intervention of ownership in the Mayagüez court against Bernardo Camacho and Sergio Be-rengner, to secure a declaration to the effect that the land attached and the fruits gathered and growing thereon belonged to the plaintiff and should remain at his free disposal, and to decree the dissolution of the attachment and the cancellation of the notice relating to the same.
Bernardo Camacho contested this complaint and prayed that it be dismissed without prejudice to the right which the plaintiff in intervention could exercise in due time under the provisions of article 71 of the Mortgage Law, and the court of Mayagüez, by judgment of April 1, 1903, admitted the complaint in intervention, directing the dissolution of the attachment levied on the 100 cuerdas of land, and the cancellation of the cautionary notice. This judgment is the subject of the appeal which the Supreme Court has decided by a majority vote affirming it.
As will be observed, the basis for the complaint in intervention was the deed of sale executed in favor of Tomás Arélez on August 18, 1902, and recorded in the Registry of Property of San Germán on the 22d of said month of August, while the attachment of the estate in question had been levied on petition of Camacho made prior thereto,- that is to say, on March 7th of the same year, notice of such attachment being-entered in the Registry of Property of San Germán on the 14th of said month. For this reason there is no doubt that Vélez acquired the property subject to the cautionary notice *46of the attachment, as was set forth in the record of the ownership of the property in favor of Vélez, in accordance with the provisions of article 71 of the Mortgage Law, the first paragraph of which provides:
“The real property or property rights which are entered may be conveyed or incumbered, but without prejudice to the right of the person in whose favor the entry was made.”
And let it not be said that although the deed of sale was executed in favor of Vélez on August 18, 1902, the latter had acquired the property on September 18, 1901, that is to say, prior to the attachment of the land, under a contract of purchase and sale embodied in a private document, because neither this document nor any copy thereof appears in the record which contains mere references thereto; therefore, the terms in which it is drawn are unknown, making it impossible to consider their real scope and legal significance.
However, assuming that there existed a real contract of purchase and sale set out in a private document prior to the date on which it was converted into a public instrument, a contract perfected between the purchaser and vendor, and binding upon both, according to section 1450 of the Civil Code, by reason of the thing which was the subject of the contract having been agreed upon, as the object of this contract was the conveyance of a property right in real property and should appear in a public instrument, according to subdivision 1 of section 1280 of the said code, it could only have given rise to the prosecution of a personal action by which the contracting parties could have mutually compelled each other to comply with the formality of executing the instrument prescribed by law, subject to section 1279, which public instrument, according to section 1462, would have been equivalent to the delivery of the thing which was the object of the contract, which gives, rise to the exercise of a real action, which must be the basis of a complaint in intervention of ownership.
*47The contract of purchase and sale having been perfected in the manner stated, without embodying it in a public document which would have been equivalent to the delivery of the thing sold, such delivery should have been made by placing Tomás Vélez, the purchaser, in power and possession; and as such delivery was not made, Vélez did not acquire any property right in the lands sold, in accordance with the provisions of section 1095 of the Civil Code. Por this reason the complaint in intervention of ownership does not lie, according to the legal doctrine which this Supreme Court followed in its opinion of July 18, 1901.
That the delivery of the lands sold did not take place before the execution of the public instrument of sale in favor of Tomás Vélez, is expressly stated in the sixth clause of said instrument, which reads as follows: “The purchaser shall enter upon the possession of the property upon the execution of this instrument, ’ ’ this being further borne out by the notice of attachment served on Sergio Berengner, who had been appointed the trustee of the property attached, without the slightest intervention on the part of Tomás Vélez.
This question of the delivery of the land sold must be discussed, in order that this appeal may be decided in accordance with the law, because aside from the fact that the law of the Legislative Assembly of March 12, 1903, which converted the Supreme Court of Cassation into an appellate court, authorizes this court to do so, such a discussion is necessary in order to be able to decide whether the complaint in intervention of ownership should be sustained or dismissed, in view of the fact that it was the duty of the party plaintiff to introduce in the action all the elements which are necessary to maintain an action to prove ownership. Such a discussion is especially pertinent in this case, because if by virtue of the private document referred to Tomás Vélez only acquired a personal right of action, his legal position is very different *48from that in which he would be if he had acquired a real right of action.
Nor is it possible to maintain that the effects of the public deed of sale executed on August 18, 1902, should date back to a time prior to the attachment, because no cautionary notice of any property right having been made in the registry of property in favor of Tomás Vélez against the lands involved in these proceedings, article 70 of the Mortgage Law cannot favor him.
"We agree that Camacho did not acquire any property right by virtue of the notice of attachment, but we maintain that Vélez did not have such right, either, at the time such notice was made; and, therefore, as Vélez had no property right whatsoever in the estate to which the intervention of ownership refers, it is obvious that such intervention could not be successful because Camacho and Vélez at that time only had personal rights of action against Berenguer, and the latter could not claim a right of ownership, nor even of preference, with respect to the former.
For the reasons stated, the undersigned justice dissents from the opinion of the majority of this court, and concurs with Mr. Justice MacLeary that the judgment appealed from should be reversed and judgment rendered in favor of the defendants, with the costs of the action and of the appeal against Tomás Vélez.
Mu. Justice MacLeaby.