DISSENTING- OPINION OF
MR. CHIEF JUSTICE DEL TOROOn February 24, 1931, Battistini & Martínez, a mercantile partnership established in Yauco, Puerto Rico, filed through its attorney, in the District Court of Ponce, a complaint against Luisa Feliciano, for unlawful detainer at sufferance. Said complaint, in its relevant part, reads as follows:
*201“The plaintiff mercantile firm is the owner of a tract of land described as follows:
“ ‘Rural tract of land of six acres more or less, wherein coffee and pastures are planted, located in tbe Ward Dney of the Municipal District of Yauco, P. R., and is bounded on the North and Bast by lands of V. Caraballo; on the South, by Maria Irizarry; on the West formerly by Miguel Franqui, today by José Vicario.’
“The defendant has built a small wooden house on the described tract of land.
“III. The plaintiff mercantile firm has requested the defendant Luisa Feliciano to vacate and leave at the plaintiff’s unhampered disposal the tract of land which has been described in the second paragraph of this complaint, and at the same time to take away the house standing thereon; and from January 23, 1931, the plaintiff has requested and continued to request the defendant to vacate said tract of land and to take away the house erected thereon, for which she does not pay any rental or other consideration whatever, causing the plaintiff mercantile firm damages with her stubborn refusal.
The first hearing was set for March 6, 1931, and as the defendant did not appear, judgment was rendered against her. Over six months elapsed and on August 24, 1931, the plaintiff asked that the execution of the judgment be ordered. The court granted this and the ejectment is said to have been carried out on August 26, 1931, although the manner thereof is not stated.
At this stage, on September 2, 1931, the plaintiff told the court under oath that after being ousted, the defendant had occupied the property again, and the court set the 11th day of the same month for the defendant to show cause. In fact she appeared personally and declared that she had not been notified of the complaint of unlawful detainer. The court allowed her ten days to engage an attorney and to file a motion to open the case anew.
The motion was filed and the court, after hearing the evidence of both parties in relation thereto, set aside the judgment on October 21, 1931, and directed that the defendant’s answer should remain in the record and that the case should *202continue to be tried in accordance with the law. The answer, insofar as pertinent, reads thus:
"FiRST. — DemuRRER.—That the complaint in this case does not state facts sufficient to constitute a good and just cause of action in favor of the plaintiff.
"Second. — AnsweR.—The defendant denies each and every one of the facts contained in the complaint.
“Special Defenses. — As independent and special defenses, the defendant alleges:
“1. — That she is the absolute owner of a one story, woden house, roofed with zinc, which is located in the ward Duey of Yauco, said house being independent of any land, and said house standing on land belonging to this defendant, but not on land belonging to the plaintiff.
"2. — That under these circumstances a conflict of titles exists between the plaintiff and the defendant, which cannot be adjudicated in these summary unlawful detainer proceedings.”
Both parties appeared on October 30, 1931, and offered their evidence. The hearing of the case, namely, the second bearing, was not held until February 16, 1932, by stipulation of the parties. the attorney who represented the defendant at the bearing was not the one who acted as such at the first bearing and by the incidents which took place it can be inferred that be was not well acquainted with the antecedents of the case.
Two days later, the district court rendered judgment against the defendant. By studying the statement of the case and the opinion on which the judgment is based it is observed that the attention of the court was fixed at whether or not the doctrine of this Supreme Court established in Ermita de Ntra. Señora, etc., v. Collazo, 41 P.R.R. 594, should be applied to decide the case.
If this were the only question involved, the affirmance of the judgment would probably lie, but by carefully analyzing the ease we have found that the documentary evidence offered by the plaintiff at the first bearing to prove its ownership of the property in question was admitted over the defendant’s *203objection and it is indeed insufficient, nor is the testimonial evidence introduced later at the hearing, sufficient, either. And if this is so, the case falls of its own weight and the judgment must be reversed.
We shall examine the question. We know the complaint. Even though it is vague, we think that it states facts sufficient to constitute the exercised cause of action, that of unlawful detainer at sufferance. We likewise know the answer. It is also vague, but it must be conceded that it denies that the plaintiff is the owner of the property involved, and alleges in a positive way that the defendant is the owner not only of the small house where she lives, but also of the land on which it stands.
The issue being thus joined, the plaintiffs were bound to prove that they were the owners of the land. They adduced therefor the following documentary evidence:
A certificate of the record of the auction sale in the action of debt brought in the Municipal Court of Yauco by Isaac Bomán against José María López and Luisa Feliciano, from which it appears that the property herein involved was awarded at public auction in execution of the judgment rendered in said action, to the plaintiff Bomán for the claimed amount of $300, due to the fact that no other bidder appeared.
■ Another certified copy of the deed executed by the marshal of the Municipal Court of Yauco in favor of the plaintiff wherein it is stated that said marshal received a writ to execute the judgment rendered by the Municipal Court of Yauco in the action brought by the plaintiff against Isaac Bomán to collect $84.47; that he attached therefor a certain property which is the one object of the unlawful detainer; that he advertised the auction sale of the attached property and, no other bidders having attended, he awarded the same to Battistini & Martinez in payment of its credit, and by virtue thereof, the deed recites textually as follows:
£ ‘ This Marshal, in his capacity as Marshal of the Municipal Court of the Municipal Judicial District of Yauco, and assuming in law *204the right of representation of the defendant Isaac Román, conveys to the commercial entity Battistini y Martinez, by virtue of a judicial sale, all the said defendant’s right, title and interest in the tract of and which has been described, for the sum of eighty-four dollars and forty-seven cents to satisfy the claim specified in the writ or order of execution, ...”
And lastly, the testimony at the hearing of Antonio J. Battistini, managing partner of the plaintiff, which, in its relevant part, states:
They acquired the property which was awarded to them, according to the deed, by virtue of a judgment of the court of Yauco . . . They are the present owners. They have not been able to enjoy the same up to now. Luisa Feliciano has stopped them. They have not been able to take possession. Luisa Feliciano lives a house of her own on the property. When they acquired that property, the house was already there. Isaac Roman, against whom they brought an action, appeared to be the owner. Isaac Román acquired from José María López and Luisa Feliciano, in an action decided in his favor. The house belongs to her. It was on the property when he bought. She has lived in the house since they obtained the land. She is a hindrance for the sale of the property or for working thereon. The lady has a bad reputation. The witness apologizes for speaking about her in her absence. Nobody will take charge of the property while she is there. Her house is worth five dollars. Just a little hut. It is an old house. He supposes that the lady built it there since the property was hers. After being the lady’s, the property passed to Isaac Román by virtue of a judgment. She has been living the house despite its being awarded to Isaac. She has never moved.
We said that such evidence was insufficient and we think that the mere statement thereof suffices to show the correctness of our conclusion.
It is admitted that the defendant was the owner of the property. It is admitted that she was and continues to be *205the owner of the small house in the property. And it is admitted that she is at present in possession of the property and that she never moved from the honse thereon standing.
To prove that the defendant lost her right to the ownership of the property, the deed and the record of the auction sale which we know, were produced, the admission of which documents was objected to because they did not by themselves determine that the municipal court had acted with jurisdiction.
Battistini and Martinez did no.t acquire the property of Luisa Feliciano. If they acquired something, that is what Isaac Román could acquire.
It was not shown that Román took actual possession of the property. On the contrary, from the testimony of the managing partner of the plaintiff partnership in this unlawful detainer proceeding, it is inferred that he never took possession.
By the references to Battistini and Martinez contained in the marshal’s deed one does not obtain an exact knowledge as to the manner in which the court acquired jurisdiction over Román and the manner in which the attachment was levied. The property is not recorded in the Registry of Property.
But even accepting that said deed were in itself sufficient evidence of the conveyance of Roman’s title, it was necessary to prove the latter’s title inasmuch as he is not the person intended to be ousted, but Luisa Feliciano, the former owner who continues to be in actual possession of the property.
How did Román acquire from Luisa Feliciano? The only evidence adduced is the copy of the record of the auction sale.
We know nothing with respect to how the municipal court acquired jurisdiction over the person of Luisa Feliciano or as to how the judgment was rendered, and above all, it does *206not appear that the marshal executed a deed in favor of .Román in the name of Luisa Feliciano.
By the time the events took place, the Act of March 9, 1905, which repealed Sections 259 to 266 of the Code of Civil Procedure, was in force as it still is, and it provided in its Section 5:
"When, immovable property is sold by the marshal, or other duly authorized officer, at public sale, under an execution or order of sale, issued by a court, it shall be the duty of such marshal or other officer to execute to the purchaser at such sale, a good and sufficient deed for such property, and the costs of making such deed shall be paid by such purchaser.” Code of Civil Procedure, 1933 Ed., p. 120.
And it has been held that:
"The delivery and acceptance of the sheriff’s deed are essential to its validity. Title of the land remains in the debtor until the deed is delivered to the purchaser.
“Though for many purposes the title of the purchaser at an execution sale of land is as well protected before as after the receipts of the sheriff’s deed, the legal title does not pass to the purchaser until the delivery of the deed.” 10 R.C.L. 1358, 1359.
The plaintiff not having properly shown that it is the owner of the property involved, it has not evinced any right to the unlawful detainer and by virtue thereof the judgment appealed from must be reversed and another one rendered dismissing the complaint, with costs, including attorney’s fees in an amount not exceeding fifty dollars.
Mr. Justice Hutchison agrees with this dissenting opinion.