DISSENTING OPINION OF
MR. CHIEF JUSTICE HERNÁNDEZ.It is true that the principal question involved in this appeal is whether the action brought by the plaintiffs was barred by limitation.
The facts alleged in the complaint as constituting the cause of action are that Manuel Maria Carrasquillo died testate in Humaeao on July 9, 1895, and that when his estate was settled in 1896 several properties were conveyed to Juan Bertrán, the ancestor of the plaintiffs, in payment of certain debts due to Bertrán and other persons,- that in 1915 the heirs of Carrasquillo brought an action against the plaintiffs to recover the properties conveyed to Bertrán and the district court ordered a new partition of the said properties and the delivery to Modesta Carrasquillo, a plaintiff in that action and the defendant here, of the proportional part of her hereditary right in the said properties; that the judg*851ment of the district court was appealed from to this court and affirmed, a partitioner being' appointed to execute the judgment; that the payment of the debt of the defendant’s ancestor to the. ancestor of the plaintiffs became ineffective, and that the proportional part of that debt, of which the defendant had to pay a one-tenth part, amounts to $1,804.76, for which sum judgment is prayed against the defendant.
To that complaint the defendant demurred on the ground of lack of facts sufficient to constitute a cause of action, because it appeared that the action was barred under sections 1865 of the revised Civil Code and 1964 of the old Civil Code.
The court sustained the demurrer and dismissed the complaint by a judgment of March 19, 1919, from which the plaintiffs have appealed.
The court based its judgment on the fact that the- allegations of the complaint showed that at least twenty-four years had elapsed since the right to recover arose in the plaintiffs and the obligation to pay fell upon the heirs of Carrasquillo,-the action being therefore barred by limitation.
The foregoing reasoning seems to me to be erroneous.
The allegations of the complaint show that the action contemplates as its remote cause an obligation contracted by Manuel Maria Carrasquillo in favor of Juan Bertrán and as its. proximate cause the adjudged nullity of the conveyances to Bertrán of properties of Carrasquillo’s estate in payment of certain debts due to Bertrán and to other persons. It is necessary to distinguish between the contractual obligation of Carrasquillo to Bertrán, which was extinguished by the conveyance of properties in payment of it, according to section 1124 of the Civil Code, and the legal obligation arising from the nullity of the conveyances, according to sections .1270 and 1271 of the same code, as follows:
“Section 1270. — When the nullity of an obligation has been declared', the contracting parties shall restore to each other the things which have been the object of the contract with their fruits, and *852tbe value with its interest, without prejudice to tbe provisions contained in the following sections.
“Section 1271.- — When the nullity arises from the incapacity of one of the contracting parties, the incapacitated person is not obliged to make restitution, except to the extent he has profited by the thing or by the sum he may have received.”
The right of action which the heirs of Bertrán may have had to recover from the defendant her proportional part of-the debt of her deceased father because the debt was- revived by the annulment of the conveyances made to Bertrán for its payment, arose, in the year 1918, when the court annulled the conveyances, and from that time the period of limitation began to run, according to section 1870 of the Civil Code, which provides that the time for the prescription of all kinds of actions, when there is no special provision to the contrary, shall be counted from the day on which they could have been instituted. The limitation period could not begin to run before for the reason that the creditor was estopped from bringing an action for the annulment of the conveyances and therefore had to accept them with their legal consequences, according to section 1269 of the Civil Code, which reads as follows:
“Section 1269. — The action for nullity of contracts may be brought by those who are principally or subsidiarily obligated- by virtue thereof. Persons with capacity cannot, however, allege the incapacity of those with whom they contracted; * * *. ”
A conveyance in payment of a' debt is a real contract. I admit that in accepting the conveyances Bertrán acted contrary to law and therefore assumed the risk which his action involved; yet that risk was not in absolute terms the arbitrary risk of losing his credit, but the legal risk established by said section 1271 of the Civil Code, which imposes upon an incapacitated person the obligation to make restitution only when the thing or sum received may have increased his possessions.
*853And it does not matter that there is no allegation in the complaint that the defendant was enriched, notwithstanding the fact that prima , facie it would seem that one who not only recovers what has been alienated in payment of an obligation, hut also becomes exempt from paying the obligation itself, the existence and genuineness of which have not been attacked, is enriched to the prejudice of the creditor. At all events, this question is foreign to the plea of prescription under consideration, although it might perhaps support a demurrer on the ground of no cause of action.
For the foregoing reasons, and dissenting from the opinion of my learned associates, I am of the opinion that the plea of prescription should not be sustained.