González v. Registrar

Mb'. Chief Justice HebNÁNdez

delivered the opinion of the' court.

By a public instrument executed February'10, 1913, by Agustín Hernández Mena for himself and in representation of his wife, of the. one part, and Ignacio G-onzález Suárez, of the other part, before Notary Juan Quintero, of Mayagüez, the said Hernández Mena acknowledged that he owed to Gon-zález Suárez the sum of $1,300, which he bound himself to pay, with interest at 1 per cent per month, on July 30, 1913. As security for the pa3unent of the said debt and of a further sum of $500 as costs and attorney’s fees in the event of a judicial action, the debtor created a voluntary mortgage in favor of the creditor on a rural property called "Sabana. Seca” in the ward of Coto, municipal district of Manatí.

A copy of the said instrument having been presented to the Registrar of Property of Afecibo for the admission to^ record of the mortgage,' it was so made to appear in the corresponding presentation entry of August 14, 1913, and on the 20th of the same month the registrar returned the copy to the interested party with his decision entered at the foot thereof reading as follows:

"This document is returned together with the stamps, no action-having been taken thereon because it does not appear that the one-dollar internal revenue stamp required by law has been canceled on the original document.”

From the decision quoted an appeal has Been taken to this court, the appellant praying that the same be reversed ánd the registrar ordered, to record the instrument or make the proper entries in the books of the registry of property in the manner and for the purpose stated in section 4 of the act to provide for appeals against the decisions of registrars of property, approved March 1, 1902. To this end the appellant alleges that although the copy presented in the registry does. *1013not show that tlie internal revenue stamp for $1 required by Act No. 34, approved March 7, 1912, was canceled oh tlie original document, there is no law requiring the copy of a document to show that the corresponding stamp was canceled on its original. Nor is that omission a legal reason for the refusal of the registrar to comply with section 4 of the act to provide for appeals against the decisions of registrars of property, approved March 1, 1902.

The said section reads as follows:

•“Section 4. — Informal defects, if capable of correction, shall not constitute a legal ground for refusing to record or to enter any document presented which constitutes a muniment of title or constitutes or removes a charge against real estate. The record of any such document shall contain a reference to the defects in it and if, at any subsequent time, a document be presented for the purpose of curing the defects existing in the previous document, it shall be recorded and a marginal note of the correction of the defect shall be made on the record or entry of the first document.”

From the wording of the registrar’s decision it appears that the failure to state in the copy of the instrument presented to' him that the stamp had been canceled on the original is a curable defect, for it could be corrected easily; and this being the case, in the absence of any other reason to present its admission to record,, the registrar should comply with the. provisions of the second part of section 4 of the act. of .March 1,1902; or, if he thought proper to refuse to admit the instrument to record because of other defects contained therein, he should have entered the cautionary notice required by section 7 of the same act.

The registrar, however, did neither the one nor the other, but by returning the instrument to the interested party without making any entry whatsoever he failed .to pass upon the document, in open violation of sections 4 and, 7 of the. Act approved March 1, 1902, and thus deprived the appellant of the right granted him by the said act to appeal 'from the decisions of the registrars in the cases specified in sections 1 and *10145 thereof; i. e., where admission to record is -refused absolutely because of an incurable defect or admitted subject to curable defects.

In the present case the registrar should have passed upon the instrument after examining all the reasons which might exist for refusing its admission to record or for admitting the instrument to record with curable defects. He should have made the entries required by law according to the outcome of the said examination, and in that case the party prejudiced thereby could have taken an administrative appeal s therefrom to this court.

In the decision appealed from the registrar only returned the stamps, making no entries because it is not shown that the internal revenue stamp of $1 was canceled on the original instrument. lie does not refuse to -record the instrument on the ground of an incurable defect, entering the cautionary notice required by law, nor does he record the instrument, setting out that it contains curable defects. lie does not pass upon the instrument in any way as to whether it is or is not admissible to record, and, in accordance with our ruling in the case of Bartolomei v. The Registrar of Property, 2 S. P. R., 589, this court is without original jurisdiction to do so. Therefore, as no ruling, properly speaking, has been made after an examination of all the intrinsic and extrinsic features of the instrument presented to the registrar, we have no basis upon which to decide the present appeal.

The grounds on which the appellant bases his appeal may be well taken, but we are unable to review the same to the extent of rendering a final decision therein unless a decision of the Registrar of Property of Arecibo absolutely refusing to record the instrument or admitting the same with curable defects is submitted to our consideration.

For this purpose the appellant should apply to the registrar again to pass upon the instrument in a proper way and render an appealable decision in accordance with the doctrine laid down by us in our decision of October 21, 1902, and sub*1015sequently followed in the ease of Mollfulleda v. The Registrar of Property, ante p. 950, which character is lacking in the decision before us.

For the foregoing reasons no decision can be rendered iu the present appeal.

Appeal dismissed.

Justices del Toro and Aldrey concurred. Mr. Justice Wolf dissented. Mr. Justice MacLeary took no part in this decision.