Giménez v. Brenes

Mr. Justice Figueras delivered the following opinion of the court. — 125 — On August 15th. of the year last past Doña Emilia Giménez and Doña Felicia Garcia Brenes presented a petition to the Guayama court praying that, in accordance with article 170 of the Regulations for the execution of the Mortgage Law, an order be made directing the marshal to require the debtor, Julio Brenes y Aponte, who is in the civil possession of the properties mortgaged, to pay within 30 days the sum of $670 due them on a mortgage, together with the interest due on that sum at 6 per cent for the last two years, the part due on the present annual installment, and the costs incurred or which may be incurred; and that he.be admonished that the public sale of the properties encumbered will be proceeded to in case of failure to comply with the demand. The Guayama court made the following order: “This action was brought for the purpose of recovering a mortgage debt under the special proceedings provided for by articles 128 of the Mortgage Law and 169 of its Regulations, by virtue of the provisions of section 85 of the act relating to special proceedings, approved March 9, 1905. “The plaintiff made an application before the judge of this court at chambers, requesting that an order be made directing the debtor to pay, and that he comply with the other requirements of said special proceeding. ‘ ‘ There can be no doubt whatever that the special proceeding pro-yided for by, the Mortgage Law was repealed'by the Law of Civil Procedure, approved March 1, 1904, not only by the repealing clause of that law, but also by implication. “The Law of Civil Procedure provides for the form and the rules of procedure for a civil action, and the doctrine is well settled that, 1 in the absence of express words of repeal, a prior statute will be considered to have been modified by a subsequent law, if it was the intention of the latter to cover the point to which both refer and which prescribes the only rules governing that point.’ (Sutherland on “Statutory Construction.’’) “'Section 85 of the act relating to special legal proceedings reads, as follows: “ ‘This act shall take effect from and after its passage, and all previous laws in conflict herewith are hereby repealed; but the special proceedings established in the Civil Code in the Mortgage Law and — 126 — its Regulations, and in any other law, in so far as not provided for by this aet, remain in force. ’ “lias this section the effect of reviving the Mortgage Law procedure for the recovery of debts secured by mortgage? This court clearly thinks it has not. It is true that it provides that the special proceedings established by the Mortgage Law shall continue in force, but the only construction which can be placed on those words is that the special proceedings established by the Mortgage Law, in force at the date of the approval of the said law, shall continue in force. It cannot be maintained that the Legislature can revive a law which has been repealed, unless it does so in express terms. “In this connection the ease of State v. Conkling, 19 Cal., 501, may be cited. In that case an action was prosecuted to recover moneys alleged to be due to the State for the percentage on sales of personal property made under the Revenue Act of 1857. Sections 49 and 52 of this law imposed a tax in favor of the State of one-half of 1 per cent on all sales made at public auction within the State. These sections were repealed by the act of 1859, and by the Revenue Act of 1861 it was provided that this law would not repeal the sections of the act of 1857, to which reference has been made. The Supreme Court of California, in its decision in that case, says: “ 'It is not necessary to consider the effect of the revenue acts of 1860 and 1861; for, if we are right in supposing the act of 1859 a repeal of or as superseding the quoted section of the act of 1857, it is very obvious that a mere legislative declaration that that act shall not repeal these sections, is not a law reviving them or enacting them, even if the Legislature could give such retrospective effect to their acts; but there can be no law without a legislative intent that it become such ; and such intent must be manifested by language declaring- the legislative will. ’ “The petition of the plaintiff is therefore denied. — Guayama, August 24, 1905.” We know of no objection whatever to the contention that the summary proceedings established by the Mortgage Law and its Regulations for the recovery of money secured by mortgage was in force up to the time when the Code of Civil Procedure went into effect, or up to July 1, 1904. It was from this date that doubts arose, and from that moment some opinions to the contrary have been expressed until there — 127 — seems to be an equal division of opinion as to whether or not the provisions of that law are still in force. The code of Civil Procedure above cited contains a repealing clause in its section 361, which reads as follows: “All laws, royal decrees, orders, military orders, acts, or parts of acts, inconsistent or in conflict with this act, are hereby repealed. ’ ’ It is maintained by some that the clause above quoted repealed the summary proceedings for the recovery of mortgage debts, but they must be sincere in their arguments, and above all must show, as maintained by their arguments, the incompatibility or conflict between the two Codes under consideration, and it is impossible to prove the incompatibility of or conflict between two Codes whose very nature is distinct, and each of which accomplishes its own purpose by a different method. The Code of Civil Procedure in force governs, in ordinary civil actions, the proceedings or remedies pursued. The summary procedure for the recovery of mortgage debts is the result of a contract between parties wherein they have agreed upon the prestations and have also stipulated the method of collecting the debt in case of noncompliance, that is to say, in case of failure of the debtor to pay. The acknowledged origin of our Code of Civil Procedure is the California Code, which in its section 22 says: “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection ■of a right, the redress or prevention of a wrong, or the punishment of a public offense.” So that the Code of Civil Procedure in force requires that for the prosecution of an action there shall be a cause of ac~„ tion, parties plaintiff and defendant, and a trial and final judgment putting an end to the litigation. The summary proceeding for the recovery of mortgage debts does not require anything of the sort, because it is the — 128 — wish of the parties that it be so, inasmuch as they have agreed upon a special method of adjusting their differences, and their wish must be respected. Such a contract must be upheld because it is not contrary to public policy, as has been maintained and is .maintained in the United States in regard to a contract known as a pledge wherein the remedies open to the creditor are provided for in case of noncompliance, and the pledgor may waive notice and authorize the pledge to sell at public or private sale without advertisement or notice, at his discretion, provided the sale is made in good faith. (Bouvier’s Law Dictionary, vol. 2, p. 687.) All goods, chattels, moneys, and other property, both real and personal, or any interest therein, of the judgment debtor, not exempt by" law, and all property and right to property seized and 'held under attachment in the action are liable to. execution * * * . Section 246 of the Code of Civil Procedure, which went into effect on July 1, 1904, and article 168 of the Regulations for the execution of the Mortgage Law in summary proceedings for the recovery of money secured by mortgage, limit execution and sale at public auction exclusively to the property encumbered thereby. So that they are not incompatible either in respect to their nature or their purpose, nor is there any conflict between the two proceedings, and for that reason the latter has not repealed the former, established in the Mortgage Law and its Regulations. And this same reasoning may be used as an answer to the argument usually advanced, that according to the new Code of Civil Procedure an appeal can not be authorized unless there is a judgment, and in order that a judgment may exist there must be a trial, and in order that a trial may be had there must be an action, and in order that an action may exist there must be a dispute in which all persons having adverse interests and rights may be parties and that they be permitted to allege and defend such rights and interests. All this reasoning is acceptable. And why not, if it is the — 129 — spirit of the Code referred to which governs? But what we can not see is, that because nothing' of the sort is found in the proceedings provided for in articles 127 to 133 • of the Mortgage Law and 168 to 176 of its Regulations, all those proceedings should be considered to have been repealed, when we have already seen that such proceedings so regulated arise out of a contract of loan, like a mortgage, and has been agreed upon by the contracting parties. Several decisions of the Supreme Court of California have been cited as well as the commentaries of authorities on the subject, but as all of them are similar we will cite the decision rendered in the case of State v. Conkling, 19 Cal., 501-513. There it was said: “When the Legislature makes a revision of particular statutes, and frames a general statute upon the subject-matter, an.d from the framework of the act it is apparent that the Legislature designed a complete scheme for this matter, this is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is ignored.” Of course we think that decision is good in an applicable case, but it is venturesome to suppose that the Legislature of Porto Rico, in debating upon and passing the Code of Civil Procedure intended to enact a general statute inclusive of the whole subject; and it is venturesome to affirm that it intended to provide a complete system embracing the whole scheme of procedure then in force in the Island; and we are so strongly convinced to the contrary that our contention is supported by the subsequent acts pf that very same Legislative Assembly. We have agreed to designate as a special proceeding the summary proceeding for the recovery of mortgage debts, and the most direct reference which we have found in the Code of Civil Procedure is in its section 75, which says: “Third. For the foreclosure of a mortgage on real property,” and then continues speaking of the jurisdiction of the court when the — 130 — property is situated partly in one district and partly in another, but this is only a true copy of section 939 of the California Code and refers to the common procedure and not to the special proceedings provided for in Part II of said Code and contained in subsequent titles which are the following: “Title I. — ‘Writs of Review, Mandate and Prohibition.’ “Title II. — Of ‘Contesting Certain Elections.’ ‘1 Title III. — Of ‘ Summary Proceedings. ’ ‘ ‘ Title IY. — Of the ‘ Enforcement of Liens. ’ “Title Y. — Of ‘Contempts.’ “Title Yl. — Of the ‘Voluntary Dissolution of Corporations.’ “Title VII. — Of ‘Eminent Domain.’ “Title VIII. — Of ‘Escheated Estates.’ “Title IX. — Of ‘Change of Names.’ “Title X. — -Of ‘Arbitrations.’ “Title XI. — Of ‘Proceedings in Probate Courts.’ ” So it is seen that the California Code shows an intention on the part of the Legislature of the State to establish a complete system of ordinary procedure' and special proceedings, and it is evident that if a particular statute upon either of the methods of procedure has been left out it must he understood to have been repealed, ipso facto. But this is not the case with our Code of Civil Procedure, the intention of which was more limited, as is proved by the fact that Title IX, which treats of “Actions in Particular Cases,” and the last title, which treats of “Summary Proceeding” and “Confession of Judgment Without Action,” are not understood as special proceedings, and we see absolutely nothing referring to special proceedings; and therefore it can not be successfully maintained that it was the desire or intention of our Legislature to establish a complete system of procedure, so that the particular or special statute, providing for the recovery of mortgage credits, might be deemed to have been repealed. On the contrary, we have said that our intention was the — 131 — more limited and we also said that the Legislature, by its subsequent acts, has shown that it was not its intention to legislate in regard to special proceedings. Later it realized that the Code of Civil Procedure was defective and attempted to remedy these defects by enacting special laws of procedure governing testamentary and intestate proceedings, the division and partition of an inheritance, the appointment of guardians, and appointment of counsel. It also enacted provisions in regard to adoption, authority over rights and property of minors, administration of property of absent persons, and temporary maintenance; and all this was contained in the Act approved March 9,1905, much later than the Code of Civil procedure under consideration, which went into, effect on July 1, 1904. Therefore it did not have the general intention supposed which would authorize us to assume that the particular statute to which we refer was repealed. But was the special procedure for the recovery of mortgage debts repealed by implication? We shall see. Section 50 of the Code of Civil Procedure says: "'The word ‘action’ as used in this title is to be construed, whenever it is necessary so to do, as including a special proceeding of a civil nature.” Subdivision 1 of section 295 of the said Code says: “That an appeal may be taken from a final judgment rendered in an action or special proceeding. ’ ’ And under these premises it is inferred by some as a consequence that the proceeding provided for the recovery of mortgage debts being a special proceeding, the same was repealed by implication by the above enactment. But the fact is that section 50 is a true copy of section 363 of the Code of Civil Procedure of California. Section 295 is a true copy of section 939 of the said California Code. — 132 — In this Code special proceedings are perfectly regulated. . Onr Code provides no regulations in regard to that class of proceeding, unless we repeat, those established by Title XI and the last title thereof be so regarded. Therefore the expression “special proceeding” contained in sections 50 and 295, and possibly some other sections of our Code of Civil Procedure, are either references to the special proceedings under the California Code (and this is an absurdity), or they refer to proceedings established by the two titles above cited of our Code of Civil Procedure, or to writs of mandamus, or to prohibitory or inhibitory writs, if they also may be considered as special proceedings; but nothing is said therein or insinuated which can even remotely refer to the recovery of mortgage debts. . .We speak of the Code of Civil Procedure as it was promulgated on July 1, 1904, because since then certain special legal proceedings have been established by legislative enactment, and those may be to-day included by sections 50 and 295 above-cited in the reference to special proceedings. It has also been affirmed that the suminary proceedings for the recovery of mortgage debts is in opposition to the constitutional prolusion that no person shall be deprived of life, liberty or property without due process of law. This argument is without strength and we think its supporters will be few. That summarjr or special proceeding is nothing more nor less than the law administered in its regular course by the courts of justice, and we here reproduce the decision and opinion cited in appellant’s brief to show the constitutionality of the special mortgage proceeding, the purpose of which was the development of the territorial credit without leaving a debtor in good faith unprotected, who is heard and given the means whereby to redress wrongs practised against him by an unscrupulous creditor. We are not satisfied, therefore, with the reasons advanced by those who maintain that the summary proceeding for the — 133 — recovery of mortgage credits is not in force, but tliis does not mean that we have pronounced the noli me tagere upon the subject. We cannot deny the power which the Legislative Assembly has to repeal or modify any law whenever it may deem such action conducive to the public welfare; but in addition to the reasons stated, the fact that the Legislative Assembly was cognizant of the provisions of article 413 of the Mortgage Law has great weight with us. That article reads as follows: “None of the articles composing this law can be repealed, except by virtue of another special law, and the -appropriation law can never be considered a special law for this purpose.” The Mortgage Law and its Regulations were in force in their entirety on May 1, 1900, when the Organic Law, passed by the 'Congress of the United States on April 12 of the said year went in to effect. Section 8 of the said Organic Law provided that the Mortgage Law and its .Regulations should continue in force, and' therefore by implication Congress acknowledged that none of its articles could be repealed except by a special law, as provided by article 413 above cited. So that the whole of the Mortgage Law, and with it the express form of repeal, has the indisputable sanction of our Constitution passed by the Congress of the United States. Then we will once more acknowledge the power which'the Legislative Assembly of Porto Rico had and still has to repeal the Mortgage Law; but not having done so by a special law, the arguments in support of the contention that it was repealed by implication, as we have already seen, are not logical and such a repeal by implication in any case would be in violation of the law providing that a repeal thereof must be by a special law, and that such a repeal by implication was not the intention of the Legislative Assembly is again revealed in a subsequent enactment, that is to say, the law — 134 — above cited, approved March 9, 1905, establishing certain legal proceedings, when it says in its section 85: “* * * but the special proceedings established in the Civil Code, in the Mortgage Law and its Regulations, and in any other law, in so far as not provided for by this act, remain in force. ’1 It is maintained by some that this clause has no force whatever, because it is a provision as to how laws shall be construed, which is exclusively the province of the courts. We, on the other hand, are of the opinion that it is a legislative provision which shows that at the time this law was passed it was still the intention of the Legislature to continue in force the summary proceedings for the recovery of mortgage debts, and for that reason it employs the verb remain which in this case signifies a continuation of the thing commenced, that is to say, that said procedure had not been interrupted, that it was still in force and, in short, that up to elate there had not been a break in its continuity. It is clear that those who think the summary procedure for the recovery of mortgage debts was repealed by the Code of Civil Procedure say that a thing whch has ceased to exist cannot be revivified; but we maintain that that procedure coexisted together with the Code of Civil Procedure and that the law approved March 9, 1905, again comes to our support. But then another law was passed and approved March 9, 1905, which went into effect thirty 'days after its approval, which is entitled “An Act Relating to Judgments and the Manner of Satisfying Them,” and that special law partly changes the proceedings for the recovery of mortgage debts. The English version of that law, which governs because the Spanish version contains an error, says: “Section 1. That decision and judgments rendered in all actions or special proceeding's for the foreclosure of mortgages and other liens shall be that the plaintiff recover his debt, damage and costs with a foreclosure of his lien on the property subject thereto, and that an order of sale shall be issued to the marshal of any district — 135 — where such property may be, directing him to seize and sell the same in satisfaction of the judgment in the manner' provided by law for the sale of property under execution; and if the property cannot be found, or if the proceeds of such sale be insufficient to satisfy the judgment, then to secure the money, or any balance thereof remaining unpaid, out of .any other property of the defendant, as in the case of ordinary executions.” Here we have the Legislative Assembly legislating for the first time in a special and definite manner upon the mortgage procedure, and the provisions of this law duly define the state of the law upon this subject. "We have already held that the said procedure was not repealed by the Code of Civil Procedure, and we so decided on February 28, 1905, in the appeal of José Posado Canas from a decision of the Registrar of Property of Cagnas (8 P. R. Rep., p — ), and we had found no reason to change our opinion in regard to the matter. And according to onr way of thinking and in compliance with the act relating to judgments and the manner of satisfying them, approved March 9, 1905, to go into effect thirty days after its approval, we now come to the conclusion that the special procedure for the recovery of debts secured by mortgage is still in force, in so far as the first part of the same is concerned, and up to and including the provisions in regard to the demand upon the debtor for the payment of the debt and that it 'has been repealed in respect to that part which might be called “compulsory proceedings,” that is to say, as tó the sale of the property encumbered by the mortgage, which is governed in all respects by the Act approved March 9, 1905, above cited, relating to the manner of satisfying judgments. This conclusion reached by the foregoing reasoning compels us to recommend the reversal of the judgment of August 24, 1905, rendered by the judge of the Gruayama court, and consequently that a demand should be made upon the debtor for payment as prayed in the initial complaint, and that in — 136 — due time tlie provisions of the law relating to judgments and the manner of satisfying them be complied with. Reversed. Chief Justice Quiñones and Mr. Justice Hernández concurred. Mr. Justice MacLeary dissented. Mr. Justice Wolf did not sit at the hearing of this case.