Oller Oller v. Cadierno

Mr. Justice Wole delivered the opinion of the court. José Oller Oiler brought this suit. A piece of property that he had bought, subject to a mortgage, was sold under the summary process of the Mortgage Law. In a suit for annulment and payment of rents the District Court of San Juan decided in favor of the plaintiff. The creditor to whom the property had been adjudicated in the auction sale appealed. We have to do with the sufficiency of the demand {requerimiento) made in the mortgage proceeding. Oiler Oller, the debtor, was not residing in Puerto Rico at the time of the demand. The notice was served on a person who, according to appellee, was the legal representative of Oller. [853] As found by the district court, this person was “adminis-trador y encargado de la finca hipotecada.” The court held that, as the notice was not served on an attorney in fact or a lessee, edicts should have been published, and that the quoted words did not include the necessary idea of an attorney in fact or a lessee, citing Ruiz v. District Court, 42 P.R.R. 278. The court held that it had never acquired jurisdiction over the debtor, Oiler. The return of the marshal was prima facie proof and hence conclusive, as no oral evidence was presented. People v. Dodge, 104 Cal. 487; 21 Cal. Jur. 554; Wilson v. Spring Hill, 10 Cal. 446; 21 Cal. Jur. 554; People v. Lee, 128 Cal. 330; Keener v. Eagle, L. & I. Co., 110 Cal. 627, and other cases cited in the brief of the appellant. The return recited that the marshal personally notified “José Dolores Cruz as administrator and person in charge of the property.” Section 171 of the Mortgage Eegulations provides: “When all of the property mortgaged is in thé possession of one person only, according to the certificate of the registrar, the demand for payment shall he served on such person at his domicile, if he resides within the municipal district where any of such property is situated. The same procedure shall he observed with regard to each of the other holders of different properties, if there be several. When any of the persons on whom demand for payment is to be made should not reside in the municipal district where any of the prop-ertjr is situated, the demand shall be made on the person in charge of the estate in any legal capacity whatsoever, in order that he may advise the owner thereof without delay. If the estate should be abandoned and no one in charge thereof, the demand shall be made on the administrative municipal authority of the town, with a similar direction to advise the debtor. “When the ownership of any mortgaged property should be divided, by reason of the property or direct ownership being vested in one person, and the usufruct or beneficial ownership in another, for the purpose of service of the demand, the holder in the name of all of them shall be considered the person in charge of the estate, or the person acting in the latter’s stead. [854] “If any person on wbom demand for payment is to be made, appears in the certificate of the registrar as the holder of a number of mortgaged estates, and the demand is to be served on the person in charge, or on the municipal authority, the estate which, among those held by the same person, appears to have the highest value according to the deed, shall be taken into consideration, or any of those which, being of equal value, exceed the value of the rest. In the absence of any valuation, the amount of the mortgage liability shall be considered. “When the demand for payment is not served at the domicile of the person from whom payment is due, nor on an attorney in fact or lessee having charge of the estate., it shall be published in addition by means of edicts which shall be inserted .in the gazette of the corresponding island, and in such ease the term of 30 days shall begin to be counted from the date of the publication in said official periodical. “When the certificates of the registrar of property show the addresses of the persons interested in the liabilities which may have been recorded subsequently to the right of the petitioner, the judge shall order, at the time demand for payment is issued, that notice thereof be served on said interested persons at the addresses mentioned if found there.” Of course the service on the person in charge of the property was good if edicts had subsequently been published. This idea is borne out by section 128 of the Mortgage Law, as follows: “ * * * * # * # “Demand for-payment shall be made on the debtor if he resides in the place where the estate is located and if his domicile be known; otherwise it shall be sufficient to make demand upon the person who may be in charge of the estate in any legal capacity whatsoever, in order that he may advise the owner of the demand.” It is contended that the service on a person in charge, etc., of the property, is a sufficient compliance. We have been referred to Mestre et al. v. Michelena et al., 30 P.R.R. 142. On the face of that opinion it would appear that under circumstances similar to the present case, perhaps only a person in charge was notified, but the question before us was not put in issue. [855] As a first step, when-.the owner is absent, the notice to the person in charge is sufficient, bnt the regulations impose an aditional and subsequent duty. Edicts must be published when the person in charge is neither an attorney in fact nor a lessee. It is a case of lex scripta. A person in charge or administrator are words of a too general import necessarily to include an attorney in fact or a lessee. The person in. charge may be either ah attorney in fact or a lessee, but he may be anything else from a farm hand upwards or a neighbor. The framers of the Mortgage Law and its Regulations wanted to make sure that either a very responsible person should be notified or that edicts should be subsequently published. As we have entered into a discussion of the case on its merits we find it unnecessary to consider the motion to dismiss. The judgment should be affirmed. Mr. Justice Córdova Dávila dissented. Mr. Justice Travieso took no part in the decision of this case.