APPEAL FROM THE SUPREME COURT OF PORTO RICO.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
Both courts below rejected the claim of title made by the appellant to a tract of land of 40 cuerdas. As the
appeal was prayed within the statutory time, the mere date of its allowance by the court is not controlling and the motion to dismiss which proceeds upon a contrary assumption is therefore without foundation and is overruled. United States v. Vigil, 10 Wall. 423, 427.
Obviously upon the theory that our power to review was controlled by the rule obtaining as to territorial courts of the United States this record, as was the case in Elzaburu v. Chavez, 239 U.S. 283, contains a statement of facts prepared by the lower court for the purposes of this appeal. As there is an entire absence from the record of the oral and documentary evidence upon which the court below acted except so far as the same may be shown by the opinion of the court or may be contained in the statement of facts, it follows that the record does not enable us to review the facts and we proceed to dispose of the legal propositions urged for reversal in the light of the facts as stated and as elucidated in the opinion of the court. Abbreviating and somewhat changing the order in which they are stated below, we recapitulate the essential facts as follows:
Two brothers, Jose Salvador Suris and Ramon Maria Suris, having acquired by various acts of purchase seventy cuerdas of land in the ward of Sabana Eneas of San German, in November, 1870, executed a mortgage on 40 cuerdas of the land thus acquired, being the 40 cuerdas here in controversy, in favor of the Charity Hospital at San German. In 1879 the Charity Hospital commenced proceedings to foreclose this mortgage, but such proceedings were stayed until 1882 in consequence of an appeal taken to the Territorial Audiencia. After the cessation of the stat, in that year an attachment against 100 cuerdas of land belonging to the two brothers was levied and the property thus attached was placed (sequestered) in the hands of one Pablo Maria Stefani. On the same day,
February 9, 1882, by a contract under private signature the two Suris brothers sold to Stefani the 40 cuerdas here in controversy which had been mortgaged to the hospital, the purchaser obligating himself to pay the hospital debt and, if a surplus remained, to pay certain attorney's fees which had been incurred. The agreement also contained a conveyance to Stefani of another and distinct tract of land for another and distinct price. This agreement under private signature was never inscribed upon the public records. A few days after it was made and presumably before the contract of sale had been carried out, the Suris brothers executed before a notary an act of consolidation of the various properties which they had acquired which they described as "Perseguida" and this act was put upon the public records.Under the private agreement Stefani the purchaser went into possession and discharged the obligations of the private contract of sale.
In 1888 a commercial firm, Schulze & Company, as creditors of the Succession of Stefani, who had in the meanwhile died, brought suit against his Succession to enforce its debt, and for the purpose of getting upon the records the possessory title of Stefani to enable an attachment to be levied, instituted and carried out the necessary proceedings. When the order for record was obtained the property was levied upon and sold at a judicial sale and was bought in by Schulze & Company. After thus becoming the purchasers of the land in controversy, the firm in 1899 executed before a notary and put of record a deed consolidating into a plantation called Imisa various tracts of land containing 192.30 cuerdas, the deed reciting that one of the parcels of land included in the plantation was a tract of 40 cuerdas called "Hospital" or "Perseguida." Ramon Maria Suris, one of the original vendors, died in the meanwhile, and in 1900 his heirs put upon record a declaratory deed asserting their undivided ownership
as the successors of their father to a tract of 40 cuerdas known as Perseguida.
The Bank of Porto Rico as the holder of a mortgage put upon the Imisa plantation by Schulze & Company, foreclosed the same and bought in the property in August, 1905, and in November of the following year (1906) the bank sold the plantation thus acquired to Francisco P. Quinones, the ...