Ortiz Romeu v. Registrar of Property of San Germán
Ortiz Romeu v. Registrar of Property of San Germán
Opinion of the Court
delivered the opinion of the Court.
By deed No. 2 of May 7, 1938, executed before Notary Vicente Hita, Jr., América Ortiz Romeu acquired, as a gift, an undivided share in several properties. The other shares were donated to her other brothers. By said deed the donors, Juan Cancio Ortiz and Matilde Romeu, appellant’s parents, established the condition of “mutual preference between co-owners in case of sale or encumbrance of their respective shares unless none of them be interested in the purchase or lien.” Subsequently the existing community of said properties was divided and appellant was awarded, in payment of her share, a farm of forty-five and two-third cuerdas, situated on the ward of Palmarejo, Lajas. At the time of the recording of the deed of partition, the Registrar made it clear that said farm was subject to the condition hereinbefore copied.
The appellant filed a petition to the Registrar of Property of San Germán, requesting him to cancel the condition affecting the farm awarded to her when the community was divided, for the following reasons:
“A. Because said condition, even though erroneously inserted at the time of recording the interests acquired by appellant by inheritance according to deed No. 2 previously mentioned, was cancelled and rendered ineffective when the community relating to said donated properties was divided and the parcel previously described was awarded to the appellant. Such condition referred to the alienation or encumbrance of the shares donated and it was in favor of the co-owners, and since the community was dissolved such shares and co-owners ceased to exist.
*489 “B. Because such condition being a personal one, should not have been entered in the Registry and it should have been totally cancelled in accordance to the ruling of the Honorable Supreme Court, laid down in the cases of Rullán v. Registrar, 67 P.R.R. 659 and López v. Registrar, 67 P.R.R. 904.”
The Registrar denied the cancellation requested and to that effect extended a note of refusal that reads as follows:
“Cancellation is hereby denied of the condition mentioned in the preceding document, because it is noted that it does not appear from the Registry nor is it established by any document that the parties interested in said condition have waived the mutual preference right in case of sale or encumbrance of their respective interest, therefore a cautionary notice is entered for the statutory period in favor of the interested parties at folio 1, back of volume 69 of Lajas, property No. 2341, in a marginal note of its first inscription.”
An appeal was taken to this Court against the note of refusal.
Repeatedly we have held that only property rights affecting real property may have access to the Registry of Property except such cases where it is otherwise provided by law. It seems clear that the personal rights are not recordable. II Roca Sastre, Derecho Hipotecario 207 (1954 Ed.) ; De Casso, Derecho Hipotecario o del Registro de la Propiedad 289 (4th Ed., 1951); Téllez Miquélez, Legislación Hipotecaria 45 (1949). Therefore, § 28 of the Mortgage Law (30 L.P.R.A. § 858) specifically provides that “the obligation of transferring to another person the ownership of real property or of a property right, or of creating on either a right of the same character, shall not require record. Nor shall the obligation to execute in the future any of the contracts included in the preceding articles require record, unless in either case the performance of the personal obligation shall be secured by an encumbrance on real property.”
Now, as pointed out by Jerónimo González, an-authority on mortgages, “there exists a group of juridical figures of the undifferentiated type which must be dragged
Having briefly exposed the principles that should be considered in order to decide the problem before us, there only remains for decision whether the clause or condition whose cancellation is sought involves a conventional real right of pre-emption or a modification of the power to dispose of the dominion title which, partaking of a real nature, was-recordable.
In order to consider the conventional right of pre-emption as a property right, it is necessary that it be stated in its; title of constitution and hence, it is necessary that the title owner should not only enjoy the preference to acquire the real property but also that he may claim it from whomever might acquire it from the obligated person. That is, the title must show that no alienation may be considered as conclusive with respect to the record owner of the right of acquisition.
On the other hand, such clause being considered as a restrictive condition of the ius disponendi of an immovable, its registral survival is equally not justified, once the state of indivisión or community of property that gave it life, disappears. As it may be seen, the donors simply established a reciprocal preference among the co-owners in case of sale or encumbrances
In view of the foregoing, the registrar’s note will be reversed.
The Mortgage Law Regulations of Spain (1944) provides in its 5 9 that ‘“the obligation of creating, transferring, modifying or extinguishing .the ownership or real right over any property are not recordable, nor
Sobre La Inscripción de montes públicos, Revista Crítica de Derecha' Inmobiliario 275 (1925).
Decision of the General Directorate of Registries of March 1, 1939.
II-Ramón de la Rica y Arenal, Comentarios al Nuevo Reglamento-Hipotecario 25 (1949 ed.).
Castán defines right of pre-emption as “the right of a person to have preference for the acquisition of a thing in the event the owner wishes to sell it.” (See, II-Casso y Cervera, Diccionario de Derecho Pri-vado 3758.)
On the right of pre-emption, whether real or personal, see, III Ramón-Roca Sastre, Derecho Hipotecario 5-23 (5th Ed., 1954).
XIV Revista de Derecho Privado 106 (1927).
Obviously by encumbrance it was meant alienation.
As one delves into the purposes of the donors — preservation of estate among the members of the family — the impropriety of the preference in view of the provisions of the Civil Code as to the legal redemption among co-owners, which attains the same end and even when the property or any interest therein has passed to the hands of a third party is clear. Section 1412 of the Civil Code (31 L.P.R.A. § 2922); Rosaly v. Rios, 63 P.R.R. 826 (1944) ; Central Pasto Viejo v. Roig et al., 33 P.R.R. 436 (1924), affirmed in 6 F.2d 106 (C.C.A. 1, 1925).
See the following decisions of the General Division of Registries published in Revista de Derecho Privado, volume and page indicated: December 31, 1,930 (Vol. XVIII, p. 249) ; May 7, 1929 (Vol. XVI, pp. 342, 344) and November 7, 1927 (Vol. XV, p. 62). One of the effects
Case-law data current through December 31, 2025. Source: CourtListener bulk data.