Under the law of Porto Rico, while an heir to an intestate may
assert his rights against one already designated heir
ab
intestato any time within five years after the decree of
designation, the heir so designated may, within the five-year
period, collect debts due to the intestate's estate and, where the
payment is made in good faith and under the order of the court into
which the money was paid by the debtor, and without notice of
existence and claims of other heirs, discharge the debtor from
liability, notwithstanding such other heirs subsequently assert
their claims and are also designated as joint heirs
ab
intestato.
Where, however, the debtor has legal notice from the court where
the matter is pending that one not originally designated has
asserted and is prosecuting a claim to recognition as an heir
ab intestato, any payments he makes to the one first
designated are at his own peril and liability to account to the
other heir after his claim has been established for his
proportionate share, and the debtor is not protected by a decree
and order of the court directing payment to the assignee of the
heir originally designated in a proceeding to which such asserting
heir was not a party.
Where the payment to the heir originally designated is made
before the debt is due and after the other heir has asserted his
claim, and under circumstances indicating collusion, it is for the
jury to determine whether the payment was made in good faith and
without knowledge of the rights of the asserting heir.
This is a writ of error bringing in review the proceedings of
the District Court of the United States for the District of Porto
Rico.
The original action was in assumpsit, brought by Adolfo Sixto,
an alien and a subject of the King of Spain, against Laureano
Sarria, a citizen of Porto Rico. The declaration set forth in
substance:
That on November 27, 1892, the defendant was indebted to one
Manuel Sixto, since deceased, in the sum of $16,000, Spanish money,
with interest from May 15 of the same year, which sum said Sarria
had promised to pay in four annual installments,
Page 196 U. S. 176
falling due respectively on the fifteenth day of May of each and
every year from 1893 until 1896, inclusive. That the said Manuel
Sixto departed this life on November 27, 1892, leaving two
children, plaintiff and one Maria Belen Sixto Melendez, as his
heirs at law. That, as such heir, the plaintiff was entitled to
one-half of the indebtedness of $16,000, Spanish money, with
interest at the rate of eight percent from May 15, 1892. The
declaration contained the usual averments in assumpsit of promise
and default. The defendant filed a plea and amended plea to this
declaration, which set up the general issue, and for further plea
averred:
"And for a further and second plea to the said declaration, the
defendant says that, on the fifteenth day of May, eighteen hundred
and ninety-two, the defendant became indebted in the sum of sixteen
thousand dollars (16,000) Mexican dollars, money then current in
Porto Rico, to one Manuel Sixto, on account of the purchase price
of a farm situated in the Island of Vieques, District of Porto
Rico, and called 'Monte Santo;' that, on the said fifteenth day of
May, eighteen hundred and ninety-two, the defendant made and
constituted a mortgage upon the said farm in favor of the said
Sixto, as security for the payment of the aforesaid amount of
sixteen thousand (16,000) Mexican dollars, together with a certain
interest as stipulated in the said instrument of mortgage; that
thereafter the said mortgage was duly registered in the registry of
property of Humacao, Porto Rico, on the eleventh day of July,
eighteen hundred and ninety-two; that the payment of the aforesaid
sum of sixteen thousand (16,000) Mexican dollars, as provided for
in the said instrument of mortgage, was to be made in the manner
following, to-wit: four thousand (4,000) dollars on the fifteenth
day of May, eighteen hundred and ninety-three, and four thousand
(4,000) dollars on the fifteenth day of May of the years eighteen
hundred and ninety-four, eighteen hundred and ninety-five, and
eighteen hundred and ninety-six. And the defendant further says
that the aforesaid Emanuel Sixto departed this life on the
twenty-seventh day of
Page 196 U. S. 177
November, eighteen hundred and ninety-two, before any of the
installments aforesaid had fallen due; that the said Sixto died
intestate, and soon after his death, to-wit, in the year eighteen
hundred and ninety-three, judicial proceedings touching and
respecting the settlement and inheritance of the estate of the said
Manuel Sixto, deceased, and which said proceedings are known in the
law of Porto Rico as 'proceedings
ab intestato,' were
instituted in the Court of First Instance of Humacao, Porto Rico,
the said court being then and there a court of record and of
general jurisdiction, and the said court in said proceedings by a
decree dated the fifteenth day of June, eighteen hundred and
ninety-three, ordered the said defendant to pay into and deposit
with the said court all sums of money then due by the said
defendant to the said estate of the said Manuel Sixto, deceased, by
virtue of the aforesaid mortgage, and the defendant thereupon and
in obedience to the said order of the said court did, on the
twenty-second day of June, eighteen hundred and ninety-three,
consign and deposit with the said court, and did place at the
disposal of the same, the sum of four thousand (4,000) pesos of the
money then current in Porto Rico, and the further sum of eight
hundred twenty-two and fifty-two hundredths (822.52) dollars of the
same kind of money, the first sum being the amount of the first
installment due May fifteenth, eighteen hundred and ninety-three,
and the second sum being the interest due on the aforesaid mortgage
credit up to the first of June, eighteen hundred and ninety-three.
And the said decree of the said court was duly entered before the
commencement of this action, and still is in full force and
effect."
"And the defendant further says, as to the third installment
above mentioned, that, by judgment of the Supreme Court of Porto
Rico, then known as the '
audiencia territorial,' dated the
eighteenth day of February, eighteen hundred and ninety-six,
rendered and entered in certain foreclosure proceedings had before
the said court on appeal from the court of first instance of
Humacao; in which proceedings the
Page 196 U. S. 178
defendant and one Antonio Roig y Torruellas were plaintiffs, and
which said proceedings the said Roig, as owner of the third and
fourth installments of the mortgage before mentioned, sought to
foreclose the same to the extent of the third installment
aforesaid, together with certain interest, the defendant was found
to be indebted to the said plaintiff Roig in the amount of the
third installment aforesaid, together with the corresponding
interest, and was ordered to pay the amount of said indebtedness so
found due by the said judgment to the said Roig within the period
of thirty days thereof, and the said judgment further provided for
execution to issue upon the noncompliance with the terms thereof by
the defendant. Said judgment was duly entered before the
commencement of this suit, and is still in force and effect. And
the said defendant thereupon, and in compliance with the said
judgment of the said court, thereafter paid unto the said plaintiff
Roig the amounts ordered to be paid by the said judgment, to-wit,
the amount of the third installment of the aforesaid mortgage,
together with the corresponding interest. And all of this the
defendant is ready to verify."
The additional or amended plea sets forth:
"And the defendant, as to the second installment aforesaid, says
that he has paid the same, together with the corresponding
interest, on the fourth day of April, 1894, to one Belen Sixto, who
was then the record owner of said mortgage credit, and who had
previously been declared heir
ab intestato of said Manuel
Sixto, deceased, by the order and decree of the proper court,
to-wit, the Court of the First Instance of Humacao, respectively on
the twenty-first and twenty-third of the month of November,
1893."
"And, as to the third and fourth installments, the defendant
says that, on the eleventh day of September, 1894, the aforesaid
Belen Sixto, for a valuable consideration, ceded and transferred
the said two installments to one Antonio Roig y Torruella; that
thereupon the said transfer was duly recorded, and the said two
installments appeared upon the record to
Page 196 U. S. 179
be the property of the said Roig, and thereupon, to-wit, on or
about the sixteenth day of May, 1896, the defendant paid the said
Roig the amount of said two installments, together with all
interest due."
The bill of exceptions brings into the case the testimony and
the rulings and charge of the court. The facts developed are:
Manuel Sixto sold a farm to the defendant Sarria for $16,000
Mexican money, payable in four equal installments, with interest. A
mortgage was taken upon the property to secure the payment of the
purchase price. Manuel Sixto y Andino died November 27, 1892,
leaving no issue except two natural children, a daughter by the
name of Maria Belen Sixto y Melendez (hereinafter called Maria
Belen), who lived in Vieques, and the plaintiff in error, a son,
who lived in the Island of St. Thomas. After the death of Manuel
Sixto, the daughter, Maria Belen, filed her petition in the Court
of First Instance of Humanacao, Porto Rico, alleging that she was
the only heir of Manuel Sixto, deceased, and praying the court to
declare her heir
ab intestato according to the provisions
of sections 980 and following of the Code of Porto Rico then in
force. Upon June 22, 1893, the defendant in error, Sarria, paid
into court, where the petition of Maria Belen was then pending, the
first installment due, with interest. On November 21, 1893, Maria
Belen, by decree of the court, was adjudged heir
ab
intestato of Manuel Sixto, without prejudice to the rights of
third parties. On the twenty-fifth of the same month, the assets
received by the administrator of Manuel Sixto, who had been
appointed during the proceeding, and the money paid into court by
defendant in error by order of the court, were made over to Maria
Belen as sole heir
ab intestato. On November 24, 1893, the
plaintiff in error, Adolfo Sixto, presented to the same Court of
the First Instance his petition to be declared the heir of Manuel
Sixto, deceased (jointly entitled with Maria Belen), invoking the
exercise by the court of "voluntary jurisdiction" under the section
of the code whereby Maria Belen had been adjudged heir. To
Page 196 U. S. 180
this petition Maria Belen answered, alleging that she had been
duly declared the only heir of Manuel Sixto, and that the plaintiff
in error could only contest her right by a "contentious suit"
(
expediente contendioso).
The court sustained this contention, and Sixto appealed, but
later abandoned the appeal, and on April 4, 1894, began a suit in
the form of a contentious proceeding, making Maria Belen a party
defendant and praying the court to declare him (Adolfo Sixto) an
equal heir with her in the estate of Manuel Sixto, and asking the
court to issue an order to the registrar of property, requiring him
to make a cautionary entry in the register concerning the property
affected by this suit, and also requiring the defendant in error to
retain at the disposition of the court, the sums still owing to the
estate of Manuel Sixto. On June 2, 1894, a notice was accordingly
issued to Sarria, and one to the registrar. The one to Sarria was
issued on June 5, 1894, and the one to the registrar on June 4,
1894. The defendant, Maria Belen, being notified of these orders,
on June 26, 1894, answered the plaintiff's petition, and in her
answer prayed that the interlocutory order of June 2, 1894, be
vacated and the notices cancelled. On August 30, 1894, the prayer
of defendant's answer was granted by the court, and orders issued
accordingly to the registrar and to Sarria, and notice was given to
the solicitor of the plaintiff. On September 1, 1894, the order
reached the registrar, and the order of cancellation was made on
the books on September 3, 1894. On September 3, 1894, the plaintiff
filed a petition for an appeal from the court's order of August 30,
1894, praying that it be allowed "in both effects" -- that is
(Code, § 383), with the effect of a review and stay of
proceedings -- but the judge granted the same with one effect only
-- that is, for a review of the judgment. In the appellate court,
on November 17, 1894, that court held that the allowance of both
effects had been wrongfully denied, and ordered that the appeal be
considered as having been taken for both effects. On December 22,
1894, the appellate court granted a further
Page 196 U. S. 181
order that Sarria, the defendant in error, be notified of his
obligation under the decree of June 2, 1894, which order was
accordingly issued. On November 29, 1895, the appellate court
(
audiencia) rendered its decision on the merits of the
appeal, and reversed the order of August 30, 1894, and reaffirmed
the order of June 2, 1894, in its validity and regularity. The
court used the following language:
"That which was ordered in the decree appealed from, regarding
Mr. Laureano Sarria, is hereby set aside, leaving in force the
requisition ordered and directed to said Sarria on June 2 by the
judge of first instance until the resolution of the pending
appeal."
This decision was certified to the court below in January, 1896,
and in March following, the solicitor of the plaintiff requested
the court to notify Sarria and the registrar that the order of June
2, 1894, was still in force, which was accordingly done, and the
defendant in error made reply thereto as follows:
"Having received notice that the installment of the mortgage had
been transferred to Mr. Antonio Roig, who has recorded said
transfer in the registry of property, and supposing that he will
proceed to collect the same judicially as he did the previous
installment, he is unable to accept the notification, and he will
appear before the
audiencia in the premises."
The registrar refused to comply with the order for these
reasons:
"First, because, subsequent to the illegal cancellation of the
cautionary notice, the property as well as the encumbrance had been
transferred on the registry; and, second, because the mortgage law
contained no provision regarding the form of carrying into effect
such an order."
Thereafter, the plaintiff asked the court for a further order to
the registrar, but this was denied.
The case proceeded to proof and argument, and on December 15,
1896, a final decision was rendered, adverse to the plaintiff, from
which decree he took an appeal, which was allowed "in both
effects." The appeal was also allowed from
Page 196 U. S. 182
the order denying a further order to the registrar. On February
2, 1897, the appellate court consolidated the appeals and ordered
the suspension of further proceedings until final decision.
In the meantime, on April 26, 1896, by an order of the Court of
the First Instance, Sarria was allowed to withdraw his deposit of
the third installment. The order recited that one Roig had become
the purchaser from Maria Belen of the third and fourth
installments, and had recovered judgment in the
audiencia
against Sarria for the third installment, and found that Maria
Belen had the right to transfer these installments, and ordered a
copy of the decree to be placed in the records by the actuary.
Thus the matter remained until after the conclusion of the war
with Spain, resulting in a change of sovereignty of Porto Rico.
By the military government, an order was issued abolishing the
territorial
audiencia, the appellate court aforesaid,
creating in its place the District Court of San Juan. On September
29, 1899, that court rendered its final decision upon both appeals,
reversing the action of the court below and deciding the plaintiff
to be legally proved the heir of Manuel Sixto. The trial in the
United States district court in the present suit resulted in a
verdict and judgment for the defendant.
MR. JUSTICE DAY delivered the opinion of the Court.
It is evident from the foregoing statement of facts that the
controversy, as it appeared in the United States district court,
was resolved into the question whether Adolfo Sixto, who had been
duly adjudged the co-heir with Maria Belen of Manuel
Page 196 U. S. 183
Sixto, deceased, was entitled to recover one-half of the amount
due on the mortgage debt which the defendant Sarria claimed to have
discharged by legal payments. The recovery sought was for one-half
of the four installments of purchase money due respectively on the
fifteenth day of May in the years from 1893 until 1896, inclusive.
The defendant interposed different defenses to different
installments of the debt. We will proceed to consider them,
together with the charge and rulings of the court concerning the
same.
Referring to the first and second installments, we find it to be
the contention of the plaintiff in error that Maria Belen, having
been adjudged heir
ab intestato under a decree which
expressly reserved the rights of third parties, no payment could
have been lawfully made to her as against the rights of the
plaintiff in error, and that, if any such payment was made, it was
subject to the risk that the subsequent-established rights of the
plaintiff in error might entitle him to recover from Sarria
one-half of such payments. Upon this subject, the court charged the
jury:
"On February 15, 1894, she [Maria Belen] having been declared
the heir, the entry was made of that fact in the registry (of
property). I say to you as a matter of law that that declaration of
her heirship was without prejudice to the rights of third parties,
and that meant that if any other person showed himself afterwards
to be an heir, he was entitled to a proper proportion of the
estate, but so far as a collection of debts and so far as a proper
attention to the assets were concerned and the control of them, she
became entitled to attend to that."
Upon the same subject, the plaintiff in error had requested the
court to charge:
"As the
ex parte decree declaring Belen Sixto the heir
of Manuel Sixto expressly saved the rights of third parties, that
was notice to the defendant that any payment made to her was made
at his peril as against the other true heirs, and, as defendant was
not required by any legal authority to pay the
Page 196 U. S. 184
first two payments to Belen Sixto, and as the plaintiff is shown
in truth to have been an equal heir with Belen Sixto, the plaintiff
is entitled to recover one-half of those two payments."
So far as this contention is concerned, we think the court below
was right. The sections of the Code of Porto Rico (War Department
translation) under which Maria Belen was declared the heir
ab
intestato of Manuel Sixto are as follows:
"976. After the measures indispensable for the security of the
property prescribed in the foregoing section have been taken, and
without prejudice to including in the same proceedings the making
of the inventory, the designation of heirs
ab intestato
shall be proceeded with in a separate record."
"977. This designation may also be made at the instance of the
interested parties, without the necessity of previously taking the
steps mentioned, in cases in which they are not necessary and in
which the institution of intestate proceedings is not
requested."
"978. Heirs
ab intestato, who are descendants of the
deceased, may obtain a declaration of their rights by proving,
which the proper documents or with the evidence obtainable, the
death of the person whose estate is in question, their relationship
to the same, and with the evidence of witnesses that said person
died intestate, and that they, or the persons whom they designate,
are his only heirs."
"The services of a solicitor or attorney are not necessary in
order to present this claim."
"979. The deputy public prosecutor shall be cited to appear at
said proceeding, to whom the record shall afterward be referred for
the period of six days for his report thereon."
"Should he find the proof insufficient, a hearing shall be
granted to the interested parties in order that they may cure the
defect."
"When the deputy public prosecutor requests it or the judge
considers it necessary, the documents presented shall be compared
with the originals. "
Page 196 U. S. 185
"980. When the foregoing steps have been taken, the judge shall,
without further proceedings, make a ruling designating the heirs
ab intestato should he deem it proper, or he may refuse to
make such declaration, reserving the rights of the claimants to
institute an ordinary action. This ruling may be appealed from both
for review and a stay of proceedings. . . ."
"1000. After the declaration of heirs
ab intestato has
been made by a final judgment or ruling, the proceedings shall be
continued according to the procedure prescribed for testamentary
proceedings."
"1001. The judge shall order that there be delivered to the
heirs instituted all the property, books, and papers of the
intestate, and that the administrator render an account of his
administration to them, the judicial intervention ceasing."
It is argued that this appointment of the heir
ab
intestato is subject to the limitation that the rights of the
heir are not fixed until five years have elapsed from the date of
the designation by the court proceedings, and in support of this
contention, certain articles of the Mortgage Law of Porto Rico are
cited:
"2. In the registries mentioned in the preceding article shall
be recorded:"
"1. Instruments transferring or declaring ownership of realty,
or of property rights thereto."
"2. Instruments by which rights of use, use and occupancy,
employteusis, mortgage, annuity, servitudes, and any others by
which estates are created, acknowledged, modified, or
extinguished."
"
* * * *"
"23. The instruments mentioned in articles 2 and 5, which are
not duly recorded or entered in the registry, cannot prejudice
third persons."
"The record of real property and property rights acquired
through an inheritance or legacy shall not prejudice third persons
until five years have elapsed since the date thereof, excepting in
cases of testate or intestate inheritances, legacies, and additions
thereto, when left to legal heirs."
"381. Property acquired through inheritance or legacy cannot
Page 196 U. S. 186
be cleared until five years have elapsed from the date of their
record in the registry."
But we think this limitation of five years was intended to
permit such heirs at law or parties beneficially interested in the
estate to assert their rights as against the heir and the property
in his hands, and to prevent its transfer except subject to the
right of such persons to assert their claims within the permitted
limitation. We are here dealing with the right to collect the
assets, and the Code provides -- sections 1000, 1001 -- that, after
the designation of the heir or heirs
ab intestato by a
final judgment or ruling of the court, the proceedings shall be
continued according to the procedure prescribed for testamentary
proceedings, and the judge may order that all the property, books,
and papers of the intestate be turned over to the heirs, and that
the administrator render his account of his administration of the
estate, and thereupon judicial intervention shall cease. It seems
to us manifest that the effect of these proceedings is to permit
the heir
ab intestato, after such final decision, to
receive and collect the estate. It may be that others will
establish an interest in the property for which the heir will have
to respond, and it is specially provided that, for the purpose of
transfer, property shall not be deemed clear until after five years
have elapsed. But this does not require that the collection of
debts shall be delayed for a like period, or that they shall be
paid to the legally declared heir or heirs upon pain of being
required to respond to others who may, within the limitation
permitted, establish a right to the property. Such construction
would seem to be unreasonable, and we are cited to no authority
that goes to that extent. It is opposed to the practice of the
civil law, upon which the Code of Porto Rico is based, in which
system the heir by intestacy corresponded with the common law
administrator, except that the Roman heir was entitled to
administer both the real and personal estate. Story on Conflict of
Laws § 508.
In the present case, the first installment was due on May
15,
Page 196 U. S. 187
1893, and was paid into the Court of the First Instance
according to its order, and a receipt given therefor, under the
seal of the court, on June 22, 1893. This was done before any
proceedings were instituted by the plaintiff in error. The payment
was made under the order of the court, and we see no reason why the
defendant in error should not be discharged thereby.
As to the second installment, other considerations apply. Sarria
testified that, while this installment fell due on May 15, 1894, he
paid the same on April 1, 1894, to Maria Belen, which payment, he
says, was solemnized by a notarial act duly acknowledged. As to
this payment, the court in its charge took the view that the
contentious suit of Adolfo Sixto was not commenced until April 4,
1894, of which fact Sarria was not notified until June 5, 1894, and
therefore Maria Belen had the right to collect this payment. The
suit of April 4, 1894, was the one begun by Adolfo Sixto after the
decision against him in the Court of the First Instance, holding
that he could only contest the right of Maria Belen by a
contentious proceeding, from which the plaintiff in error took an
appeal, but abandoned the same, and on April 4, 1894, amended the
suit to a contentious proceeding, making Maria Belen a party
defendant, and seeking for an order to the registrar to make a
cautionary order touching the property in controversy, and also an
order to the defendant in error requiring him to retain at the
disposition of the court whatever sums he owed to the estate of
Manuel Sixto, deceased. On the day of the beginning of this
contentious suit, Sarria paid to Maria Belen, anticipating the
maturity of the installment by more than a month, the amount which
would have fallen due on the fifteenth day of May following.
We think that, in view of the testimony produced, the validity
of this payment should have been submitted to the jury under proper
instructions. The plaintiff testified that he was known to the
defendant, and that the latter was well aware that he was a son of
Manuel Sixto, deceased. The proceeding to declare his rights had
been begun. It is evident
Page 196 U. S. 188
from a letter written to him on November 11, 1892, by Maria
Belen that she recognized the plaintiff in error as her brother,
for in this letter she announces the death of "our beloved father,"
subscribed herself as "sister," and requests Sixto to come over to
Vieques at once, as his presence was necessary in order to collect
money coming from the estate. Under these circumstances, the
question of whether Sarria had notice of the plaintiff in error's
rights and demands, and whether this was a valid payment, or was
made in anticipation of the possible claims of Adolfo Sixto, with
intent to deprive him of his rights, should have been left to the
jury, instead of the instruction given, which practically required
a finding for the defendant in error.
As to the third and fourth installments, the defendant claims to
have paid these to one Roig. It appears that these alleged payments
to Roig were evidenced by certain notarial instruments, which
became of record in the office of the registrar of deeds, and, as
is recited in that record, Roig appears to have been the declared
purchaser of the third and fourth installments by assignment from
Maria Belen, and the Court of the First Instance, on April 25,
1896, at the instance of Sarria, permitted him to withdraw the
third installment, and declared Roig entitled to collect the third
and fourth installments. Upon this subject, the court charged the
jury:
"In this contentious suit by Adolfo Sixto against Belen, this
defendant, Sarria, was ordered on June 2, 1894, to pay into court
whatever money he might be owing. That order was served on Sarria
on June 5, 1894, and afterwards that court decided that Sixto, the
plaintiff in this suit, was not entitled to attach this money. He
obtained an appeal from that judgment, but not from that portion of
it that cancelled the annotation made in the registry of deeds of
the attachment of that fund. Subsequently, on November 17, 1894, an
appeal was allowed in the upper court from that portion of it, but
no notice was given as to Sarria, who was merely a garnishee in the
suit, and who had received no notice not to pay over
Page 196 U. S. 189
the money until the lower court decided whether he had the right
to pay it over. Between the time the court decided the attachment
and the time the appeal was allowed in the upper court, Belen Sixto
assigned to Roig the third and fourth installments. I say to you,
as a matter of law, that there was nothing to hinder her from doing
that at that time; she had, in law, the right to do it."
The counsel for the plaintiff requested the court, upon the same
subject, to charge:
"As it is shown by the uncontradicted evidence that the judge of
the Court of the First Instance of Humacao was entirely without
authority or jurisdiction to issue his order on August 30, 1894,
directing the registrar to make annotation on his books of said
order, said order to the registrar was void, and the annotation
made by the registrar was void, and the former annotation remained
in force, which was notice to all the world, including this
defendant, that the plaintiff had an interest in those payments
such as might be declared by the court; and, the court having
afterwards decided that the plaintiff here is entitled to a
one-half interest in said estate, the plaintiff is now entitled to
recover one-half of the last two payments, with interest."
It appears that Adolfo Sixto was not a party to the suit between
Roig and Sarria in which it is declared that Roig was held entitled
to recover the third installment, and if Sarria had notice of the
pendency of the suit to establish the rights of Adolfo Sixto in
such wise as to be bound by the result thereof, he could not
prevent Sixto's recovering an interest in the property by
wrongfully paying it over in the proceedings to which the plaintiff
in error was not a party. The court below seems to have given its
charge upon this subject upon the theory that the order of August
30, 1894, was not appealed from in such wise as to prevent Sarria
from paying the third and fourth installments to the assignee,
Roig, and it is said that he was merely a garnishee in the suit,
and had then received no notice not to pay over the money
Page 196 U. S. 190
until the lower court had decided whether he had the right to
pay it over. The payment of the third and fourth installments was
made to Roig by permitting Sarria, in the Court of the First
Instance, to withdraw the installment which he had paid into court
under the order of June 2, 1894. These installments were paid to
Roig on May 16, 1896, but in the attitude of the suit then pending
to establish the rights of Adolfo Sixto, and Sarria's knowledge
thereof, could the latter legally make these payments so as to
conclude the rights of the plaintiff in error? It is true that the
lower court, on August 30, 1894, had held in favor of Maria Belen,
vacating the notice sent to Sarria and the cautionary notices to
the registrar and the plaintiff in error had prayed an appeal "in
both effects" --
i.e., for a review of the order and a
stay of proceedings -- but was refused an appeal in the latter
aspect, from which refusal he also appealed, and this was the
attitude of the case at the time of the alleged purchase by Roig on
September 11, 1894. On November 17, 1894, the
audiencia
considered the application of Sixto for the enlargement of the
appeal, and held that such allowance was wrongfully denied in the
lower court, and ordered that the appeal be "considered as having
been taken for both effects." On the eighth of January, 1895,
Sarria was notified of this order, and appeared and asked that a
clear and detailed statement be given him "as to what he has to
comply with." Thereupon a new explanatory order was directed to
Sarria, informing him that the previous requisition meant the
ratification of the one previously directed to him by the court
"in order that the sums which he owed from that time to Mr.
Manuel Sixto should not be delivered by him except to the court in
order to deposit the same in the royal treasury."
This order was duly served on Sarria on February 5, 1895.
On November 29, 1895, the
audiencia heard the appeal,
and, reversing the order of August 30, declared the order of June
2, 1894, in full force, whereby the cautionary entry was ordered to
be made by the registrar of property, and the notification
Page 196 U. S. 191
ordered to Sarria to hold the payments on the mortgage, or pay
the same into the treasury, to abide the order of the court.
The registrar refused to comply, assigning as a reason that the
encumbrance had been assigned to third parties, and that the
mortgage law did not justify such an order. Subsequent proceedings
resulted in the final decree of the military court deciding the
merits of the controversy in favor of Sixto. The decision of
November 29, 1895, was also notified to Sarria, and on May 4, 1896,
the entry of the court discloses:
"On May 4, 1896, appeared Mr. Laureano Sarria y Gonzalez and
stated that, having received notice that the installment of the
mortgage had been transferred to Mr. Antonio Roig, who has recorded
said transfer in the registry of property, and supposing that he
will proceed to collect the same judicially, as he did the previous
installment, he is unable to accept the notification, and he will
appear before the
audiencia in the premises."
Over the objection of the plaintiff in error, Sarria was
permitted to testify that he paid the installment to Roig by order
of the
audiencia. But the plaintiff in error was not a
party to such proceeding, if it had been legally proved, and, of
course, could not be concluded by it. On being notified that the
order of June 2, 1894, was in full force, requiring him to hold the
funds, while Sarria says he is unable to accept the notification,
he declares "he will appear before the
audiencia in the
premises." Instead of so doing, unless the appearance in the Roig
case can be so considered, he made application in the Court of the
First Instance for a release of the deposited installment in order
to pay it to Roig, and that court made the order, although it had
been notified of the decision of the
audiencia of November
29, 1895. This order could have no effect on the rights of the
plaintiff in error, nor can it protect Sarria, who acted in the
face of knowledge of the decision of the higher court, instead of
appearing in that court at the suit of Sixto, and having the rights
of Roig and the contesting heirs determined. We conclude that the
plaintiff in error had the right to recover his share of the third
and fourth installments,
Page 196 U. S. 192
notwithstanding the alleged transfers and payments to Roig, and
the alleged decree of the
audiencia in a proceeding to
which Sixto was not a party.
For error in the court's charge as to the second, third, and
fourth installments, the judgment will be reversed and the cause
remanded for further proceedings consistent with this
opinion.
