DISSENTING OPINION OP
MR. CHIEF JUSTICE HERNANDEZ.By a public deed executed in the town of Cayey on May 5, 1854, before the mayor, Sebastián Colón, the brother and sisters, José Saturnino, Isidora, María, Fruta and Daría del Otero, acting for themselves and guaranteeing the cooperation of their brothers, Bonifacio and Demetrio del Otero, sold to Alonso María Hernández for 2,200 pesos, cash, a property situated in the ward of Honduras, of Bio Piedras, containing from 140 to 150 cuerdas and adjoining lands of the Marchioness ele León and José de la Cruz. It was stated in said deed, which was signed by the contracting parties present, but not by the witnesses to its execution, whose names were given as Sebastián Porrata, Bamón Pacheco and FeJipe Agüero, that the exact number of cuerdas, together with the points and boundary lines, would be set out in the deed which would be executed for that purpose after a survey of the property.
Subsequently Alonso María Hernández hypothecated said property in favor of the Spanish Grovernment to guarantee the faithful performance of his duties as collector of taxes and revenues of Caguas and administrative proceedings were instituted against him to recover for a defalcation. After many difficulties in connection with fixing the boundaries and *177surveying the property in question, a new survey thereof was made in 1892 by G-arcia Saenz, a duly authorized official, who* surveyed the entire zone where the lands were supposed to be located and settled upon 112 cuerdas and 1921 Spanish square yards as the land subject to seizure and sale' by the Government in satisfaction of the liability incurred by Hernández.
The land in question, of the area stated,'was adjudicated to the Spanish Government on July 5, 1895, and recorded in its name in the registry of property on September 14 of the same year. On October 15, 1897, it was acquired at public auction by Juan Manuel Cuadrado, who conveyed his rights to the plaintiff, Pedro de Elzaburu, on October 16 of the same year and executed a deed of sale thereof to Elzaburu on October 17, 1898, which deed was recorded in the registry of property in the name of Elzaburu.
When Elzaburu attempted to take possession of a portion, of said land, i. e., a parcel of 50 cuerdas which was in the possession of the defendants and had been recorded in the name of their ancestor, Paula Chaves, on March 21, 1896, or subsequent to the record made in favor of the Spanish Government, he was confronted by the complications which have given rise to this suit in which both parties claim the ownership of the parcel of land.
As held by this court in its opinion, it is manifest that the property formerly possessed by Paula Chaves and now by her heirs, the defendants, is within the limits set by the Spanish Government to the property sold to .the plaintiff, Elzaburu, and in our opinion the conclusion should be reached also that Elzaburu is the sole and lawful owner of-the parcel of land claimed. . •
Elzaburu derives his title from the Spanish Government, the latter from Alonso María Hernández and. he¡ from the Otero brother and sisters by virtue of a public deed executed on May 5,1854.
Said deed is a genuine public instrument;, for, although the signatures of the witnesses who were, present at its exe*178cution are lacking, their signatures were not required by the law then in force, but only the presence of the witnesses, and the fact of their presence ha§ not been put in issue. Nor does the circumstance that it does not appear that a subsequent deed was executed wherein the points and boundary lines of the property were fixed, vitiate the deed; for these could be determined, as they have been, in a different manner; i. e., by means of the corresponding survey. Nor does the failure of the brothers Demetrio and Bonifacio del Otero to ratify the deed invalidate it, inasmuch as their brother and sisters, the vendors, guaranteed their cooperation, which signifies that they responded for the acceptance by the said Bonifacio and Demetrio of the deed, and the defendants have not alleged that Bonifacio and Demetrio have at any time offered any objection to the sale.
It is true that in the proceedings brought about the year 1823 and approved by the mayor of San Juan it was proven that Eugenia de la Cruz and her brother, José, inherited from their grandparents a property in Honduras, Bio Piedras, which property was sold in 1819 to Juana María de Otero, ¡and it may be deduced also from said proceedings that Juan 'Caneti entered into possession and enjoyed the use of the said property, but it is not known under what title or right. José de la Cruz testified in the proceedings that his sister Eugenia possessed one-half of the property for more than 20 years until she sold it to Juana Maria de Otero, which shows that José de la Cruz remained in possession of the other half, and this is corroborated by the fact that he is named as an adjoining owner of said property.
It is stated also in the deed of May 5, 1854, executed in favor of Alonso María Hernández by the Oteros, that the property referred to joins the properties of the Marchioness de León and José de la Cruz, which may lead us to believe that the property which belonged to Eugenia and José de la Cruz is the same, in whole or in part, as that described in the deed of May 5, 1854.
*179It was not shown at the trial under what title Jnan Caneti entered into possession of the property sold to Juana María de Otero, for the witnesses who testified in the aforesaid pro-eeedings were ignorant on this point, and the Síndico in suggesting that the proceedings be approved stated that the ownership of the property had been duly established and that the fact that the witnesses testified that the property was in the possession of Caneti did not affect the legality of the right sought to be established, inasmuch as Doña Juana might have leased or sold it to Caneti.
The proceedings were instituted to prove that Eugenia de la Cruz and her brother José inherited the property from their grandparents, Eugenia having sold her share in 1819 to Juana María de Otero, who, without a title deed, had been in possession since that time, and not to show that Juan Caneti had any title to the property; but as the proceedings developed the fact that Juan Caneti was in possession, although his title was not shown, the Síndico concluded that Caneti’s possession did not affect the legality of the right of ownership sought to be established, inasmuch as the possession of the property might have been held by Caneti as owner under title of purchase or as lessee.
Caneti did not obtain from Juana Maria Otero a lawful title to the possession of the lands which the latter acquired from Eugenia ele la Cruz, but was a trespasser, judging from the report made by the duly accredited official, (Jarcia Saenz, in the year 1892, which stated that the lands seized belonged to Juan Otero who lived in the barrio of Honduras in the year 1820, when he changed his residence to Caguas and left Juan Caneti in charge, who remained in possession up to the time of his death, after which his son sold said lands to Clemente, the husband of Juana Chaves, said Clemente holding possession a't the time of the seizure.
The defendants have not presented any title as good as or better than the public deed of May. 5, 1854, from which Ihe plaintiff derives his title, for there was no proof that *180Caneti, from whom the defendants derived their rights, lawfully acquired the property from Juana Otero. A more feasible conclusion is that the Oteros referred to in said deed of May 5, 1854, inherited from Juana Otero the property sold to Hernández and afterwards seized by the Treasurer of Porto Eico.
In any event, Hernández’s title, from which Elzaburu derives his ownership, is valid and should be sustained unless the defendants show that it is false. No proof to that effect was introduced at the trial. We do not know under what title and in what circumstances Juan Caneti acquired the property from Juana Maria Otero. Nor do we know that Santos Caneti was the sole heir of Juan Caneti. Nor can the defendants show that they acquired a title of ownership by prescription. Finally, the record of the possessory title to the property in litigation in the name of The People of Porto Eico was entered in the registry prior to the entry of a like possessory title in the name of the defendants and this is a sufficient reason for the nullity of the later record.
For the foregoing reasons the judgment appealed from decreeing that the title of ownership to the property in litigation is in the plaintiff who has the right to recover it, and that the possessory title recorded in the registry of property in the name of the .defendants is null and void, should be affirmed.