DISSENTING OPINION 'OP
MR. JUSTICE WOLE.The Law of Special Legal Proceedings of 1905 was taken from Spanish sources and section 82 thereof in English ought to read (as shown in the opinion of the court in Spanish) as follows: “The court shall admit and consider the proof offered it,” etc. In realty, the words “admitirá” and “prac-ticará,” as used in Spanish, should be translated by the single verb “shall admit.” I make this explanation because the English text is garbled.
If it is merely bad practice, as set forth in the majority *38opinion, to file affidavits in the sale of minors’ property and it is not against the law, then parties and counsel have a right to go on presenting affidavits, notwithstanding the admonition of this court. My idea is that the letter and spirit of the law is otherwise. “Admitirá y practicará pruebas” means that the court will consider proofs. “Pruebas,” I maintain, should he translated “evidence.” But even if the word “proofs” is used, as in the English text, an affidavit is not proof, except in the cases specially recognized in section 128 of the Law of Evidence, as this court has pointed out in Meléndez v. The Registrar, 17 P. R. R. 575, and Hermida & Palos v. Gestera, 23 P. R. R. 92. These eases, although slightly distinguished, were cited and, it seems to me, approved in the majority opinion.
As to the spirit of the law or its true intention, this was a proceeding to dispose of a minor’s property. It is not like a preliminary injunction where the parties have another try. It is a definite disposition of the property and the co'nrt should have an opportunity to hear testimony and to examine witnesses in the interests of the persons non sui juris. The court is a protector.
The majority opinion, by suggesting that there was no fraud in this Case, was evidently imagining that mere affidavits might open the way to fraud. It is not so much what has actually been done under a supposed authority as what may he done that should be the test. See, among others, City of Rochester v. West, 164 N. Y. 510-14, and Matter of Jones v. People, 10 App. Div. (N. Y.) 59.
When a minor comes of age, if his property has been sold, that years should have elapsed would be the rule rather than the exception. Hence, a hardship wiil very frequently arise when it is sought to set aside a sale of such property. A question of right in such a ease ought not to be affected by-lapse of time or other like consideration.
The case, I take it,'is not defended on a suggestion of *39benefit to tbe minors by tbe sale. Tbe principie bf 'stare decisis is less applicable in tbis case tbán in Martorell v. Ochoa, 276 Fed. 99. Tbe majority opinion does say thát a practice bas grown np in Porto Rico tbat does not exist bb tbe continent, bfit in 1911, when tbis sale was authorized, tiib law of Í905 bad been in force sometbing over five years and we bave no record of when tbe practicé began.
As soon as cases bave come before ns we bave attenipted to point ont tbe trne use of affidavits. Meléndez v. The Registrar; Hermida & Palos v. Gestera, supra, and tbe instant case. Tbe admitted premises, in my judgment, should báffe led to a reversal.