Rivera Nieves v. Registrar of Property of Ponce

Mr. Justice Hernández Matos delivered the opinion of the Court. On September 17,-1964, Cecilio Ruiz Vega, in his behalf and on that of nine of his brothers and sisters, among them Victor Luis Ruiz Miranda, an emancipated minor, sold to Cristina Rivera Nieves, by public deed, half of an urban lot located in Ponce: The deed of sale, together with the required complementary documents, was presented to the registry for its registration. The title was recorded, “. . . with the defect that it was not proved that in the execution of the deed of Emancipation the necessary formalities as to form and solemnities prescribed by the State of New York have been complied with according to that decided in the case of Rojas, Randall & Co. v. Registrar, 27 P.R.R. 20.” The purchaser-appellant correctly sustains that her title does not have such defect and that it was contrary to law to allege such defect. In the documents presented to the registry the following circumstances are clearly stated: (1) Victor Luis Ruiz Miranda, the emancipated minor, was bom in Ponce on September 28, 1943, and hence at the time the deed of his emancipation was executed — February 17, 1962 — he was 18 years and four months old; (2) his father, Ramón Ruiz Hernández, was deceased, and Victor’s mother, Petra Miranda, had the patria potestas over him; (3) the emancipation was verified by a document executed in the city of New York, on the date indicated and signed by Mrs. Miranda, Victor Luis, the minor — who consented to it — and Luz Mercedes O’Faurie and José 0. Lugo, as witnesses. It appears, authenticated by Notary Ra-món Ortiz Diaz. The office of Notary he occupies is certified by James McGurrin, Secretary to the County and to the Supreme Court of the County of New York; (4) the docu [896] ment of emancipation was protocolized in Ponce on February 23, 1962, by public deed, pursuant to the provisions of § 17 of the Notarial Law in effect. In the main part of its text the document of emancipation reads thus: “Emancipation. — State of New York, City of New York, United States of North America, on this 17th day of February, 1962, Before me there appear: — as Party of the First Part: Petra Miranda, of legal age, single, housewife, and resident of the City of New York, State of New York, United States of North America; and as Party of the Second Part: Víctor Luis Miranda, eighteen years of age, single, student of the same city. — The appearing parties state that their names and personal circumstances are as aforesaid, and by virtue thereof they freely and voluntarily state: — First:—Emancipation: That Víctor Luis Ruiz Miranda was born on September 28, 1948, in Ponce, Puerto Rico, legitimate son of the late Ramón Ruiz Hernández and Petra Miranda, appearing party herein, the said minor being under the patria potestas of his mother, whose birth was recorded on December 13, 1943, according to certificate No. 3413 of book No. 140 of the Registry of Vital Statistics No. 56 of Ponce, Puerto Rico, and the appearing party Petra Miranda considering that her aforesaid son has the necessary legal capacity to govern his person and administer his property as if he were of full age, proceeds to emancipate him and through this document emancipates him so that he may govern his person and administer his property as if he were of full age, pursuant to sections two hundred thirty-three et seq. of the Civil Code of Puerto Rico, nineteen thirty edition, wishing and consenting to the making of the corresponding entry of this emancipation in the Birth Certificate of the aforesaid minor. Second — The minor, Víctor Luis Ruiz Miranda accepts this emancipation and grants his formal consent thereto. The appearing parties accept this document as it is drafted, and in witness whereof they sign it in the place and date set forth hereinbefore, in the presence of the undersigned witnesses.— (Sgd.) Luz Mercedes O’Faurie. — Witness.—Petra Miranda. — Petra Miranda. — José O. Lugo — Witness.—Victor Luis Ruiz Miranda.— Víctor Luis Ruiz Miranda.” [897] The respondent registrar admits in his brief: “the capacity of the grantors of the emancipation document according to our law, causing the registration of the sale transaction; that the document of emancipation was executed in New York before a notary of that city; that the concept of public instrument is equivalent to a document executed before a notary and that . . . the forms and solemnities of public instruments are governed by the laws of the country in which they are executed, pursuant to § 11 of the Civil Code. . . He makes clear that the defect pointed out is not meant to challenge the legal capacity of the executing parties in the emancipatory act. He based the defect on the failure to prove that in the execution of the document of emancipation the necessary formalities as to form and solemnities prescribed by the laws of the State of New York have been complied with. As counsel for petitioner correctly affirms, the juridical institute of emancipation has never been statutorily regulated in the State of New York. It does not have positive legislation regulating its substantive or formalist aspects, internal or external. There, as in other states, it is governed by the principles of Anglo-American common law which, in many senses, in this matter, are in disagreement with those which regulate it in jurisdictions of civil law.1 [898] In the State of New York the parent may emancipate his child by any kind of writing, public or private, or orally, in express or implied terms, and even without any express, written or oral formality, if the conduct of the parent towards his child reveals his firm intention of terminating every kind of family relationship, leaving it for the courts to decide whether with such conduct an emancipation has been produced.2 For the foregoing reasons we conclude that the emancipation of minor Victor Luis Ruiz Miranda was executed pursuant to the juridical formalities and solemnities regarding that kind of acts then prevalent in the State of New York.3 On the other hand, the emancipation complies with the essential and formal requisites prescribed by our Civil Code for its validity.4 The notarial practice in Puerto Rico, adjusting itself to the old civil legislation — § 316 of the Spanish Civil Code — Las always perfected the emancipatory act by public deed, even though since 1902 our positive legislation prescinded of the solemnity of the notarial public deed as the only and sacramental manner to perform the emancipation, providing in its second paragraph of § 303 of that year’s Civil Code — now § 233 of its present edition — that: [899] “This emancipation takes, place by a declaration of the father or mother, before a notary public and in the presence of two witnesses, and with the consent of the minor.” In view of the clearness of this provision and notwithstanding Professor Muñoz Morales’ preference for the classic formality of the public notarial deed — see his work Reseña Histórica y Anotaciones al Código Civil 667-68, part I —since 1902 it has been possible to perform the emancipation by means of a private statement authenticated before a notary, granted by the parent and child in the presence of two witnesses. Of course, its execution may be performed by public deed as it has been and continues to be done here, generally without the presence of witnesses, as we decided in Toro v. Registrar, 87 P.R.R. 846 (1963), where, among other things, we said: “Section 233 supra of the Civil Code was patterned, in the part requiring the presence of witnesses, not on the Spanish Civil Code, but on § 366 of the Louisiana Code. In Spain, § 316 requires that the emancipation by concession of the father or mother be effected by the execution of a public instrument or by the appearance before a municipal judge. The local precept does not refer specifically to a public instrument; it requires that the act be executed by a ‘declaration of the father or mother, before a notary public.’ It is not necessary, therefore, that it be made in a public instrument, and conceivably it could be made by a sworn statement or affidavit, pursuant to the Act of March 12, 1903, 4 L.P.R.A. § 881 et seq. It is possible that the lawmaker required thereby the presence of witnesses. As indicated, in Louisiana it is provided that ‘This emancipation takes place by the declaration to that effect of the father or mother, before a notary public in the presence of two witnesses.’ West, Louisiana Statutes Annotated (1952), 2 Civil Code 537.” The document of emancipation executed in the State of New York having complied with the formalities and solemnities required for the validity of such act in Puerto Rico, it was unnecessary in any manner “to show that'in the granting of the emancipation deed the necessary formalities p're900 scribed by the laws of the State of New York have been complied with/’ as alleged by the respondent registrar, who sustains the imperative character of § 11 of our Civil Code. It is true that back in the year 1919, in relation to a sales contract for a real property located in Puerto Rico, which was executed in the City of New York between two corporations of that state, pursuant to § 11 of our Civil Code, we said in Rojas, Randall & Co. v. Registrar, 27 P.R.R. 20 (1919), that for its registration it was necessary to show that the necessary formalities as to form and solemnities prescribed by the laws of the State of New York had been complied with and that failure to prove it constituted a curable defect and not an incurable one as respondent registrar therein adduced. Pursuant to the traditional standards of the occidental juridical regulations referring to the applicable law regarding the forms necessary to perfect the execution of a contract, will, or any other public document in a foreign country, our Civil Code has comprised in its § 11 the doctrine of the Private International Law known as locus regit actum and also as lex loci actus, which establishes the principle that in the execution of an act or contract in a foreign jurisdiction the parties must comply with all the formalities and solemnities prescribed by the laws of that country. Already, in Armstrong v. Armstrong, 85 P.R.R. 387 (1962), we referred to those grounds and considerations which sustain the doctrine. We pointed out that the foundation of the rule is more in reasons of a practical than of a doctrinal nature. In principle, this doctrine recognizes the existence of a great variety or diversity of standards designed to regulate the question of the forms and solemnities necessary to perform a valid execution. It recognizes also that many legal systems have created special juridical institutions to deal [901] with that problem and that they are, or could be, completely unknown by other systems. It would be very difficult for a person away from his country on certain occasions to comply with all the legal requirements of the law of his country, because the person before whom he is to execute an act or contract is completely unfamiliar with those requirements and, in others, because the juridical system where the execution is to take place lacks the adequate formal juridical mechanisms or is unable to provide the necessary means for the execution to conform to the requirements of the law of his country.5 The doctrine has not sought to substitute the local legal external requirements for those of the nation of the executing party, by prohibiting compliance with the first; all that has been sought is to avoid that obstacles similar to those hereinbefore pointed out should prevent a person from expressing his will in a legally valid form. If ultimately it is in the country of the executing parties where the act or contract shall have its effects, it would logically follow that preference should be given to the legal requirements of that country and that faced with the impossibility of complying with them, the requirements established by the jurisdiction where the execution is to be held should be applied. I Manresa, Comentarios al Código Civil Español 179-80. It is for that reason that most of the commentators favor the idea of construing that doctrine in a facultative, potestative or optional manner and not in a coactive or imperative form. See II Goldschmidt, Sistema y Filosofía del Derecho Internacional Privado 208 (2d ed. 1954); II Miaja, Derecho Internacional Privado 194 (1955); [902] Verplaetse, Derecho Internacional Privado 473 (1954); Nussbaum, Principios de Derecho Internacional Privado 169 (1947); II Romero del Prado, Manual de Derecho Inter-nacional Privado 302 (1944). To that respect Rabel states the following in Tome II of his work The Conflict of Laws at 518: “We have, however, realized the necessity of developing the rule so as to take care of the really typical modern cases. Whenever the laws of two or more territories are involved in the formation of a contract, to give exclusive preference to one of them is quite as wrong as to cumulate their requirements. Rather, compliance with one of the two local laws should suffice. The problem is different from the inquiries for determining the place of contracting for the purpose of finding the governing law or the law deciding whether or not the contract has been formed. The customary privilege for upholding formal validity is sou/nd; hence it ought to be extended rather than curtailed.” (Italics ours.) If, as we have already pointed out, they are practical, rather than philosophical considerations those which sustain the locus regit actum doctrine, it is not difficult to conceive that the optional or facultative nature thereof is more congruent with those considerations or foundations. Once it is clearly established that the execution of an act or contract may be subjected to the requirements of any one country, the executing parties would be free to choose compliance with such forms and solemnities as best conforms to their wishes, wills, and purposes. That classification is in harmony, besides, with one of the fundamental bases of the Private International Law: to facilitate all international relations and transactions. Lorenzen, op. cit. at 456. Lorenzen, Uniformity Between Latin America and the United States' in the Rules of Private International Law Relating to Commercial Contracts, 15 Tul. L. Rev. 165. It is not difficult either to conceive that part of the practical utility of the rule would be lost or curtailed in classi [903] fying it as imperative, for we would be forcing an executing party to comply, without any reason or ground, with the laws of the place of execution, when he could comply with those of his country. That is why several states, some by legislative fiat and others by its case law, have recognized and accepted the optional nature of the rule.6 Nothing was provided in § 11 of our Civil Code regarding the facultative or imperative nature of its provisions. Its predecessor, § 11 of the Spanish Civil Code, does not add anything either in that respect. The opinion of the commentators on that matter is divided. The majority believes that, although a reform is necessary to conform § 11 to the more modem requirements of that branch of the law, in view of the clear precepts of that legal provision there should not arise any doubt as to the imperative nature of the provision. See in that respect Yanguas Messía, Derecho Internacional Privado 289-90 (2d ed. 1958); Lasala Llanas, Sistema Es-pañol de Derecho Civil Internacional e Interregional 30 (1933); 1-1 Castán Tobeñas, Derecho Civil Español, Común y Foral 501. On the other hand, both Goldschmidt, op. cit. at 208, as well as Manresa, op. cit. at 179-80, believe that said provision is of an optional nature. To that effect the latter points out the following: “As we have already indicated above, whenever possible, the citizen should abide by the law of his country, and this is permitted from the moment it is provided that in case juridical [904] acts are executed in foreign countries, they should be authorized by the diplomatic and consular officials who shall comply with the formalities of our laws: the 'provision is then optional in general.” (Italics ours.) The optional nature of § 11 of our Civil Code is the most satisfactory to us. As we have already stated, its practical utility would be restricted by a contrary interpretation. The imperative nature of § 11 of our Civil Code conforms best to the legal requirements of the times when it was drafted. Today, nevertheless, the necessities and requirements of the modern world call for another interpretation. The close relation between nations, the outcome of the developments accomplished in the field of transportation and in the means of communications has eliminated many obstacles. The registration of the sale title free of the curable defect set forth will he ordered. Mr. Justice Rigau and Mr. Justice Ramirez Bages dissented. —0— Footnotes [1] The emancipation in the former may be express or implied consent of the parents or by operation of law; while in the latter the express consent of both the parent and the child is generally required; in the former, there are no limits for emancipation with respect to age, there having been cases in which the courts have considered emancipated a four-year-old minor— Murphy v. Murphy, 133 N.Y.S.2d 796, 798 (1954)—while in the latter, minimum ages are fixed for the minor to be emancipated, depending on the moment in which he has been considered to possess the necessary physical and intellectual capacity to be able to manage himself as if he were of legal age; in the former, the emancipation is a mere license granted by the parent, revocable at the father’s will; in the latter, once the emancipation is granted it cannot be revoked, the patria potestas is extinguished forever and can never be reestablished. In certain cases it can be imposed against [898] the parents’ will. Section 235 of the Civil Code. Unlike the Anglo-American common law, the Civil Law does not admit condition, term, or method in the emancipation, nor may its effects be patterned to the emancipator’s or emancipated person’s will, partial emancipation not being possible. [2] Crosby v. Crosby, 246 N.Y.Supp. 384; Boehm v. C. M. Gridley & Sons, 63 N.Y.S.2d 587; Cohen v. Delaware L. & W. R. Co., 269 N.Y.Supp. 667; Hardy v. Eagle, 54 N.Y.Supp. 1045; Canovar v. Cooper, 3 Barb. 115; Giovagnioli v. Ft. Orange Const. Co., 133 N.Y.Supp. 92; Murphy v. Murphy, 133 N.Y.S.2d 796, 798 (1954); Henderson v. Henderson, 169 N.Y.S.2d 106. [3] Pursuant to § 6 of the Executive Law of New York — Executive Law § 135, The Consolidated Laws of New York, Annotated, Book 18 at p. 63— every notary public duly qualified is hereby authorized and empowered within and throughout the state, among other things, to authenticate every kind of instruments in writing. [4] See §§ 232 and 233 of our Civil Code. [5] It has been pointed out also that a rule to the contrary would have the effect of requiring compliance with the formal requisites of all nations or places where the contract is to be executed, and besides, that the doctrine prevents contracts executed and perfected in good faith from being annulled. Lorenzen, The Validity of Wills, Deeds and Contracts as Regards Forms in the Conflict of Laws, 20 Yale L.J. 427. [6] See § 26 of the Italian Civil Code of 1942, § 11 of the Greek Civil Code of 1940, § 5 of the Polish Act of 1926; § 11(2) of the Introductory German Act of 1896, still in effect; § 20 of the Egyptian Civil Code, § 7 of the Czechoslovakian Act. The French jurisprudence has recognized since 1909 the facultative nature of the doctrine. The Dutch jurisprudence has also pronounced itself in the same sense. See Verplaetse, op. cit. at 474. The Uniform Act on the execution of wills has accepted the optional form in its § 7; see 9A Uniform Laws Annotated 347 (1957). The State of New York has already incorporated to its legal system a similar legislation, 13 McKinney’s Laws of New York Annotated, § 22(a), Armstrong v. Armstrong, supra.