Franceschi v. Sambolín

delivered the opinion of the court.

The findings of fact of the judgment appealed from are accepted.

With regard to the nullity of the notes made by Gavino Garces and Monserrate Lugo, his wife, in favor of Santiago *115Sambolin, alleged by tbe plaintiffs as tbe only ground for tbe intervention, it is a juridical principle founded on article 1302 of tbe former Civil Code (section 1269 of tbe modern Code), and affirmed by an opinion of tbe Supreme Court of Spain of April 18, 1901, and other later opinions, tbat tbe nullity of contracts may be alleged only by those principally or subsidiarily obligated by virtue thereof, which does not include tbe intervenors, Damián Franceschi and Tornabells & Co., who were absolutely foreign to tbe execution of the notes in question, and who are neither principally nor sub-sidiarily obligated to tbe payment of said documents.

Although tbe provisions of article 1302 of tbe former Civil Code, from which the. foregoing doctrine is derived, in providing that “the action for nullity of contracts may be brought by those who are principally or subsidiarity obligated by virtue thereof,” does not exclude third persons prejudiced by such obligations from exercising it, as heretofore held by the said Supreme Court of Spain in its opinion of September 23, 1895, and as affirmed by article 1111 of said former Civil Code in providing, among other things, that the creditors may impugn the acts which the debtor may have performed in fraud of their rights, which precept the new Civil Code has also reproduced in its section 1078; but it is indispensable therefor that the debtor prove that there was fraud, or that he was prejudiced by the contract entered into, which has not occurred in this case inasmuch as it has not been alleged that the notes were made to the prejudice of the intervenors, nor could such an allegation have been made, .as the notes were drawn five years before the rendition of the .judgment by which G-avino Garces was adjudged to pay the costs sought to be recovered from him in this intervention of preferred right.

Therefore, the intervenors not having alleged, apart from the nullity of the notes, which cannot be entertained, any other material ground prescribed by law to permit of their *116credit being- granted a right of preference over that of Santiago Sambolin, the complaint in intervention of preferred right filed should be dismissed, with the costs of both instances against the intervenors.

In view of the legal provisions cited, we adjudge that we should reverse, and we do reverse, the judgment of September 27, 1902, appealed from, dismissing the complaint in intervention of preferred right filed by Damián Franceschi and Tornabells & Co. against Santiago Sambolin and Gavino Gar-óes, the latter in his own name and representing his minor daughter, Carmen Julia Garces y Lugo, in whose favor the judgment is rendered, with the costs of both instances against the plaintiffs.

Reversed.