delivered the opinion of the Court.
Plaintiffs in this case appealed from the judgment rendered in the same by which the complaint was dismissed because the same did not state sufficient facts to constitute a cause of action.
The spouses Lemuel Marqués Abrams and Dolores Cam-pillo sued the corporation Heirs of Pedro Giusti, Inc., requesting that the court declare the nullity of a summary foreclosure proceeding brought by the defendant corporation in the District Court of San Juan against the present plaintiffs to recover a mortgage debt and in which the mortgaged property was sold at auction and was adjudicated to defendant. As grounds for the nullity the complaint alleges that the mortgage deed which served as basis for the foreclosure proceeding of the mortgage claimed to have been originally executed by the plaintiffs and which is found in the record of said suit and was offered as a necessary document for the issuance of the demand for payment, is a document which can not *20have the nature of a public document because it lacks the signature of the witness Alfredo Yera.
The defendant corporation filed a demurrer against said complaint on the ground that it did not state sufficient facts to constitute a cause of action. The District Court of San •Juan sustained said demurrer and allowed the plaintiffs time to amend the complaint but they waived it and requested the court to render judgment, which was done and the complaint was dismissed with costs. Against said decision the plaintiffs took the present appeal.
According to our Notarial Law documents executed before a notary are not delivered to the parties but are kept by him to constitute his protocol. Only copies of said documents certified to by him or by his legal substitute are delivered to the parties. The protocols so signed are the property of the People of Puerto Rico. Sections 9, 23, 28, and 38 of the Notarial Law. Said certified copies are admissible in the courts. Section 24 of the Law of Evidence. A mortgage, which creates real rights on real property must be constituted by a public document. Section 1232 of the Civil Code, Edition of 1930; and the documents in which a notary intervenes must be governed by the Notarial Law. Section 1171 of the Civil Code. Section 13 of the Notarial Law provides that two witnesses are necessary in a deed, except what is provided by law for special cases; and Section 20 declares null the public instruments in which the signatures of the witnesses do not appear. According to Section 1177 of the Civil Code a defective deed by incompetency of the notary or by error of form will be considered as a private document, if signed by the parties.
The initial petition in a summary foreclosure proceedings must be accompanied by the mortgage deed; and in view of the same the court will grant or deny the demand for payment, which is the first step in a summary foreclosure proceeding. Sections 728 of the Mortgage Law and 160 of the Mortgage Regulations.
*21In order to decide a demurrer filed against the complaint the facts alleged therein mnst be accepted as true, for which reason the lower court must have accepted as true, that the deed which was offered in the foreclosure proceeding sought to be annuled, did not have the signature of one of the witnesses, as alleged in the complaint. To decide this appeal, we also, must do so. The lack of said signature makes the mortgage deed null as a public document, by express provision of the law. As said document was presented to the court in the foreclosure proceeding and as it necessarily was based on said instrument when issuing the demand for payment and the public sale of the property object of the proceeding, we must reach the conclusion that said foreclosure proceeding is null and hence the complaint states a cause of action.
The copy certified to by the notary has the presumption of being correct, but even if it was incorrect by the omission of the signature of the witness Alfredo Vera, still the foreclosure proceeding would be null as the instrument that served as basis for the court to authorize the foreclosure was an instrument in which the signature of a witness did not appear.
In the record we find the notarial copy which was offered in the foreclosure proceeding, certified to by the clerk of the lower court and which appellants state in their brief they accompanied as an exhibit. From it, it appears that at the end of the instrument the notary states that he read the document to the parties and the witnesses, that it was accepted by the former and signed by all; to all of which and to whatever else is contained in the public document the notary certifies. Such statement did not destroy the fact that it did not appear from said copy that the deed was signed by the witness Alfredo Vera, more so when said statement is made by the notary before the deed has been signed, which signatures appear after said statement of the Notary.
*22The lower court erred in declaring that the complaint did not state sufficient facts to constitute a cause of action and in rendering judgment on said ground dismissing the complaint, as well as in imposing the costs on plaintiffs.
The case must be remanded to the lower court for further proceedings.