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 in- [196 U.S. 175, 176] stalments, falling due respectively on the 15th 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 8 per cent 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:
The additional or amended plea sets forth:
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 instalments, 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 Hunmacao, 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 980 and following of the Code of Proto 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 instalment 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 25th 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 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 [196 U.S. 175, 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 contencioso).
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 canceled. 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 cancelation 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 [196 U.S. 175, 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:
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:
The registrar refused to comply with the order for these reasons: " First, because, subsequent to the illegal cancelation 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 [196 U.S. 175, 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 instalment. The order recited that one Roig had become the purchaser from Maria Belen of the third and fourth instalments, and had recovered judgment in the audiencia against Sarria for the third instalment, and found that Maria Belen had the right to transfer these instalments, 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. N. B. K. Pettingill for plaintiff in error.
No counsel opposed.
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 coheir with Maria Belen of Manuel [196 U.S. 175, 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 instalments of purchase money due respectively on the 15th day of May in the years from 1893 until 1896, inclusive. The defendant interposed different defenses to different instalments 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 instalments, 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:
Upon the same subject the plaintiff in error had requested the court to charge:
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:
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:
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- 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. If 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 commonlaw administrator, except that the Roman heir was entitled to administer both the real and personal estate. Story, Confl. L. 508.
In the present case the first instalment was due on May 15, [196 U.S. 175, 187] 1893, and was paid into the court of 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 instalment, other considerations apply. Sarria testified that while this instalment 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 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 instalment by more than a month, the amount which would have fallen due on the 15th 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 [196 U.S. 175, 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 instalments, 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 instalments by assignment from Maria Belen, and the court of first instance, on April 25, 1896, at the instance of Sarria, permitted him to withdraw the third instalment, and declared Roig entitled to collect the third and fourth instalments. Upon this subject the court charged the jury:
The counsel for the plaintiff requested the court, upon the same subject, to charge:
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 instalment, 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 instalments 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 [196 U.S. 175, 190] until the lower court had decided whether he had the right to pay it over. The payment of the third and fourth instalments was made to Roig by permitting Sarria, in the court of first instance, to withdraw the instalment which he had paid into court under the order of June 2, 1894. These instalments 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 8th 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 [196 U.S. 175, 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:
Over the objection of the plaintiff in error, Sarria was permitted to testify that he paid the instalment 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 first instance for a release of the deposited instalment 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 instalments, [196 U.S. 175, 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 instalments, the judgment will be reversed, and the cause remanded for further proceedings consistent with this opinion.