DISSENTING OPINION OP
MR. JUSTICE HUTCHISON.The facts are set forth in the foregoing opinions filed by Mr. Justice Wolf and by Mr. Justice Aldrey. It will suffice to add that the court below, in ordering the sale of the mortgaged property subject to the claim of homestead, and in overruling the motion to strike the answer and cross-complaint, deliberately disregarded the form and took into consideration only the substance of the pleading last mentioned.
The Mortgage Law and the Regulations for the enforcement thereof neither authorize nor contemplate a sale of any property not included in the mortgage, save in certain exceptional circumstances at the option of the mortgagor or for his advantage and benefit, in which event he is protected by a consequent right to participation in the proceeds. Section 175 of the' Regulations refers to and prohibits only a stay or suspension of the summary proceeding. Instances are not wanting in which, notwithstanding and independently of the various matters and defenses enumerated in the article last mentioned, a mortgagor even within the narrow limits of the summary proceeding, and well within the spirit if *234not within the letter of the law and its regulations may demand that certain property be excluded from the contemplated sale or else separately sold and the proceeds thereof delivered to him. Hernández Mena v. Lecumberri, 36 P.R.R. 357, and authorities cited.
More than twenty years ago this court in Giménez v. Brenes, 10 P.R.R. 124, said:
“. . . we now come to the conclusion that the special procedure for the recovery of debts secured by mortgage is still in force, in so far as the first part of the same is concerned, and up to and including the provisions in regard to the demand upon the debtor for the payment of the debt and that it has been repealed in respect to that part which might be called ‘compulsory proceedings’, that is to say, as to the sale of the property encumbered by the mortgage, which i's governed in all respects by the Act approved March 9, 1905, above cited, relating to the manner of satisfying judgments.”
The order of the court below, therefore, did not interrupt, stay or suspend any part of the summary proceeding prescribed by- the Mortgage Law and its Regulations. But even in the “declarative action” to which a defendant is relegated by article 175 of the Regulations he would be entitled to have ' the proceeds of sale retained in the custody of the court pending a determination of his rights in such separate suit. In the circumstances, we are somewhat at a loss to understand why the claim to a homestead, affecting only the question of sale or the disposition or distribution of the proceeds, may not be asserted either by motion or by cross-complaint and. determined in the foreclosure proceeding as well as in an independent action. Not only would this practice tend to avoid a multiplicity of suits but, if the issue so raised is promptly disposed of, would enable prospective purchasers to ascertain what part, if any, of the mortgaged premises had been excluded instead of chilling the bidding by some vague notice of an outstanding claim pending determination in an independent action. In the instant case, how*235ever, the situation is simplified by the fact that no question of designation, survey or segregation of the homestead is involved, and counsel for claimants concede that in the circumstances the order of the district court should be modified so as to 'direct the retention of five hundred dollars cut of the proceeds of sale pending a decision of the question as to the right of defendants in the foreclosure proceeding to receive this amount under the provisions of section 4 of the Homestead Law. Certainly it can not be contended that the order if so amended would retard or interfere in any way with the progress of the summary proceeding even in the matter of sale and distribution of the proceeds.
The order directing a sale of the mortgaged premises should have been modified accordingly, and, as modified, together with the ruling upon the motion to strike the cross-complaint, affirmed.
The writer is authorized to state that Mr. Chief Justice Del Toro concurs in this opinion.