Opinion — Nadal v. May

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NADAL v. MAY.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR

PORTO RICO.

No. 130. Submitted December 12, 1913; Restored to docket for reargu-

ment January 26, 1914; Reargued April 6, 7, 1914.—Decided April 20,

1914.

The Civil Code of Porto Rico of March 1, 1902, did not go into effect

until July 1, 1902, Ortega v. Lara, 202 U. 8. 339, and prior thereto

the wife’s assent to a conveyance by her husband was not necessary.

Decisions of this court and of the local courts as to the date when a

code of law making material changes in the prior existing law went

into effect may well become a rule of property which should not be

disturbed by subsequent conflicting decisions.

This court, as a general rule, is unwilling to overrule local tribunals

upon matters of purely local concern. Santa Fe Central Ry. v. Friday,

232 U.S. 694.

5 P. R. Fed. Rep. 582, affirmed.

Tue facts, which involve the validity of title to land in

Porto Rico, and determination of the date when the Civil

Code of 1902 went into effect, are stated in the opinion.

Mr. N. B. K. Pettingill, with whom Mr. F. L. Cornwell

was on the brief, for plaintiff in error:

There was error in determining the meaning of the will.

The translation of the °°... .uwterpreter was not conclu-

sive and the construc uon based thereon is erroneous.

There was error in the admission and exclusion of evi-

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OCTOBER TERM, 1913.

Argument for Plaintiff in Error. 233 U. S.

dence; as to excluding admission of Sanjurjo; excluding

the statement as to property inherited by Altagracia

Nadal; in the admission of the statement as to the liquida-

tion of community property; the last inquiry is not within

the issues nor is it material.

There was error in giving the peremptory charge. The

plaintiff had established a prima facie case and defendant

did not overcome it. There was error in overruling the

demurrer to the special defense and holding the same suf-

ficient to warrant directing a verdict for defendant.

The allegations were not sufficient to constitute estoppel.

In support of these contentions, see Adams v. Akerlund,

168 Illinois, 632; Ambrose v. Moore, 46 Washington, 463;

Arnett v. Reade, 220 U.S. 311; Boscio v. Registrar, 14 P. R.

Fed. Rep. 605; Caballero v. Pomales, 17 P. R. Fed. Rep. 691;

Caballero v. Registrar, 12 P. R. Fed. Rep. 214; Crary v. Dye,

208 U.S. 515; Dooley v. Registrar, 12 P. R. Fed. Rep. 202;

Feliu v. Registrar, 16 P. R. Fed. Rep. 728; Fernandez v.

Gutierrez, 10 P. R. Fed. Rep. 59; Gonzalez v. Ortiz, 17 P. R.

Fed. Rep. 563; Garrozi v. Dastas, 204 U.S. 64; Guies v.

Lawrence, 2 La. Ann. 226; Hanrick v. Patrick, 119 U.S.

156; Mutual Life Ins. Co. v. Phinney, 178 U.S. 327; Rod-

riguez Vv. Registrar, 14 P. R. Fed. Rep. 754; Royal Ins. Co.

v. Martin, 192 U.S. 149; Sturm v. Boker, 150 U. S. 312;

United States vy. Turner, 11 How. 663; Vidal v. Registrar,

12 P. R. Fed. Rep. 198; Warburton v. White, 176 U.S. 484;

Wiser v. Lawler, 189 U.S. 260.

While the Supreme Court of Porto Rico in Busd y.

Busé held that the Revised Civil Code went into effect

July 1, 1902, and that § 1328 of that Code was a new

section inserted therein, which changed the law as it had

previously obtained and first gave to the wife the power,

by withholding her consent, to prevent the alienation of

the real property belonging to the conjugal partnership,

an examination of Busé v. Buso will show that the Su-

preme Court of Porto Rico did not investigate the ques-

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NADAL v, MAY. 449

233 U. S. Argument for Defendant in Error.

tion for itself as an independent legal proposition, but

was merely misled by the recital contained in the certificate

of the Secretary of Porto Rico prefixed to the official

printed volume of the Codes. See Morales v. Registrar,

16 P. R. Fed. Rep. 109, 114. See also § 41, Political Code,

that every statute, unless a different time is prescribed

therein, takes effect from its passage.

This section is but declaratory of the law as uniformly

settled in the absence of any express provision to the con-

trary. Matthews v. Zane, 7 Wheat. 164, 211; Memphis v.

United States, 97 U.S. 293, 296; Seven Hickory v. Ellery, 103

U.S. 423; Louisville v. Savings Bank, 104 U. 8. 476; Robert-

son v. Bradbury, 132 U.S. 491; Ortega v. Lara, 202 U.S. 339.

The Revised Civil Code was approved by the governor

of Porto Rico on March 1, 1902, and went into effect on

that day as a matter of law.

The validating act of February 24, 1903, was not ef-

fectual. It is clearly an attempt at retroactive legislation

which is invalid, if applied to the conveyance in question,

because it divests the settled rights of property. Wilhkin-

son v. Leland, 2 Pet. 661; Mitchell v. Campbell, 19 Oregon,

198, 207; Showk v. Brown, 61 Pa. St. 320; Brinton v.

Seevers, 12 Iowa, 389; Boston F. Co. v. Condit, 19 N. J.

Eq. 394, 399; Houston & T. C. R. Co. v. Texas, 170 U. 8.

243, 261. See also Gunn v. Barry, 15 Wall. 610, 622; Ar-

nett v. Reade, 220 U.S. 311, 320.

The meaning of paragraph seven of the will is not doubt-

ful, nor is the doctrine of innocent purchaser applicable.

Division of community property is not necessarily a

matter of probate jurisdiction.

As to Garzot v. Rubio, 209 U.S. 283, see Arnett v. Reade,

220 U.S. 311, and other cases cited supra.

Mr. Felix Frankfurter, with whom Mr. Wolcott H. Pit-

kin, Jr., Attorney General of Porto Rico, was on the brief,

for defendant in error:

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450 OCTOBER TERM, 1913.

Opinion of the Court. 233 U.S.

The new Civil Code did not go into effect until July 1,

1902, and the controlling conveyance of June 2, 1902,

under the then existing Spanish Civil Code was properly

made by the husband without the consent of the wife.

The will under which plaintiff claims conveys to him no

interest in “Carmen.”

As a bona fide purchaser for value (‘‘third person’’) the

People of Porto Rico could rely on the record title and

took a clear title, for no defect or cautionary notice ap-

peared in the registry against ‘“‘Carmen.”’

Plaintiff’s claim involves a preceding liquidation of a

community between husband and wife. This is solely a

subject-matter for the local probate court and beyond

the jurisdiction of the District Court of the United States

for Porto Rico.

The exceptions to rulings on evidence are without merit.

In support of these contentions, see Amadeo v. Registrar, 3

P. R. Fed. Rep. 263; Busé v. Busé, 16 P. R. Fed. Rep. 864;

Castro v. Registrar, 7 P. R. Fed. Rep. 458, 461; Escalona

v. Registrar, 9 P. R. Fed. Rep. 523; Garrozi v. Dastas, 204

U. S. 64, 78; Garzot v. de Rubio, 209 U. S. 283; Morales v.

Registrar, 16 P. R. Fed. Rep. 109, 111; Ortega v. Lara, 202

U. S. 339, 343; Para v. Registrar, 2 P. R. Fed. Rep. 592;

Riera v. Registrar, 11 P. R. Fed. Rep. 223; Roca v. Banco

Territorial, 6 P. R. Fed. Rep. 339, 351, 353, 355; Santa

Fe Central Ry. Co. v. Friday, 232 U. S. 694.

Mr. Justice Hotmes delivered the opinion of the

court.

This is a suit by the plaintiff in error to establish his title

to one-half interest in a plantation called ‘Carmen,’ as

devisee of his aunt, Altagracia Nadal. It is alleged that

the plantation was bought with the separate money of

Altagracia Nadal by her husband, after marriage; that |

she became the owner of one undivided half, subject to

SOOO LBEGA AALS SAGDIG EL PCTS HO Mb 7 Es

NADAL »v. MAY. 451

233 U.S. Opinion of the Court.

the administration of her husband until the termination

of the conjugal partnership, and that this half passed to

her devisee at her death. The complaint admits that after

the purchase the husband purported to convey the whole

plantation to a third person but alleges that the wife did

not consent to the conveyance and that therefore her rights

remained.

It appears that on May 1, 1901, Altagracia Nadal

brought a suit against her husband for an account of her

paraphernal property, alleging among other things, that

he had recorded in his favor the estate Carmen, acquired

by a deed of October 25, 1900, and praying judgment that

it was her private property because bought with her sep-

arate funds, and for a cautionary notice to be entered in the

registry. On November 10, 1901, a settlement was made

by which it was stated that the husband had received ten

thousand dollars as the product of the wife’s paraphernal

property, had paid her five thousand dollars and given a

mortgage for the other five thousand, and in view thereof

she “‘renounces all the rights and interests which she might

have against her husband because of the facts stated in the

said complaint.”” The instrument was presented to the

court with a prayer that the court would hold that the

parties had desisted from continuing the action and that

the cautionary notice be cancelled, which was granted on

November 21. There had been conveyances of Carmen,

without consideration, it was testified; there was a recon-

veyance to the husband, and on June 2, 1902, he conveyed

it, without his wife’s consent, to Elisa Sanjurjo, who on

August 29 of the same year conveyed it to the People of

Porto Rico, for valuable consideration, there being then no

cautionary notice on record. On April 10, 1906, the wife

assigned to the plaintiff the mortgage received by her on

the above settlement, and on April 27, 1906, made the will

under which the plaintiff claims.

By this will the testatrix left to the plaintiff a mortgage

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452 OCTOBER TERM, 1913.

Opinion of the Court. 233 U. S.

described, with all its rights and actions (asi como todos sus

derechos y acciones) and also the mortgage assigned on

April 10, in case the assignment should not have been

effective in favor of her said nephew ‘Rafael Martinez y

Nadal, todos los derechos y acciones que puedan caberme en

los bienes mios que estén & nombre de mi esposo Isidro Fer-

nandez Sanjurjo, en virtud de la transaccién celebrada con

mi dicho esposo.’

The plaintiff’s claim is founded on these last words.

The official translation accepted by the court reads that

she leaves the mortgage “‘in case the assignment shall not

have become effective, all the rights and actions which

may pertain to me in my properties which are in the name

of my husband Isidro Fernandez Sanjurjo, by virtue of

the settlement made with my said husband.” The plain-

tiff contends that the word ‘snd’ should be read in be-

fore ‘all the rights and actions’ on the notion that a y

has dropped out or should be implied. He argues that the

estate Carmen was not embraced in the settlement, be-

cause community property in which the wife had and re-

tained a community interest and that the last words de-

vise it—en virtud de signifying more nearly in spite of the

settlement than by virtue of it.

On the other hand it is argued that the settlement re-

nounced all claim by the wife to Carmen if any she had;

that the last words of the will have an import similar to

that of those used in connection with the previous mort-

gage; that en virtud de means by virtue of; that if the wife

had a claim it was outside the settlement and those words

would not describe it, even if at the date of the will the

estate had still stood in the husband’s name, where

notoriously and as she well knew it had not stood for

years. The government also claims as a bona fide pur-

chaser without notice. It is obvious, we think, from this

summary that these arguments against the plaintiff's

claim are hard to meet, and they were not met. But it is

NADAL v. MAY. 453

233 U. 8. Opinion of the Court.

not necessary absolutely to decide on their validity as the

case is disposed of by a preliminary point.

Both sides agree that the wife’s assent to a conveyance

by her husband was made necessary for the first time by

$ 1328 of the Civil Code of March 1, 1902. Unless that

Code went into effect at its date it did not apply to the

conveyance of June 2. The plaintiff argues with much

force that it was in effect then and that the decisions to

the contrary are all based on a mistaken certificate of the

Secretary of Porto Rico, but we are of opinion that the

considerations on the other side must prevail. On the

last day of its session the Legislature passed four codes

making material changes in the existing law—the Political

Code, the Penal Code, the Code of Criminal Procedure and

the Civil Code, which although in form separate acts

were published in one volume and constituted a large part

of asystem. Two of these Codes fixed July 1, 1902, as the

time for their taking effect. It was the duty of the Secre-

tary to promulgate the laws (Act of Congress of April 12,

1900, c. 191, § 19, 31 Stat. 77, $1), and he was directed

by an act of the same date as that of the Codes to revise

and arrange the provisions of the Codes for publication

along with the Joint Codes Committee of the Legislature;

the arrangement to be completed as soon as practicable

after April 1, and publication being expected on or before

August 1. A resolution of the day before shows that they

had to be enacted before enrollment with manuscript cor-

rections. Rev. Stats. & Codes of Porto Rico, 1902, p. 299.

The Secretary certified that they were in effect on and

after July 1, 1902. But the injustice of making the Civil

Code operative before its contents could be known and

before the revision contemplated by the law was so mani-

fest that on February 24, 1903, an act was passed pur-

porting to validate all conveyances of real estate and in

general all acts that required certification by a notary

executed after March 1, 1902, and on or before January 1,

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454 OCTOBER TERM, 1913.

Syllabus. 233 U.S.

1903, if they would have been valid by the laws in force

on February 28, 1902. This court assumed that the Civil

Code went into effect on July 1, in Ortega v. Lara, 202 U.S.

339, 343, and the Supreme Court of Porto Rico has de-

cided the same point twice. Estate of Morales yv. The Reg-

istrar of Property of Caguas, 16 P. R. Fed. Rep. 109, 114.

Busé v. Busé, 18 P. R. Fed. Rep. 864, 867, 868. It is im-

possible to know how many or how important transactions

may have taken place on the faith of these repeated solemn

assurances, and apart from the general unwillingness of

this court to overrule the local tribunals upon matters of

purely local concern, Santa Fe Central Ry. Co. v. Friday,

232 U.S. 694, 700, it is not too much to say that the deci-

sions have become a rule of property, even if we did not

think, as we do, that probably the Secretary’s certificate

expressed the legislative will.

Judgment affirmed.