Compagnie des Sucreries v. Ponce & G. R. Co.

ceedings, and did not make it a party to the same, in the premises, and insists and contends that it is not obliged by law so to do, but confesses that perhaps it owes and ought to pay defendant for the crop of cane now standing upon the strip of land which it intends to use.

Considerable feeling has apparently arisen between the parties, which, was, to some extent, exhibited at the hearing. Complainant vehemently insists that it is under no obligation to the defendant, and that it is bound to take no affirmative action against it, and that the burden is upon the defendant to come rightfully upon the land in question and dispossess complainant, or not come at all. That its property cannot be taken without due process of law, and that if it is taken, the complainant must first be paid or secured the ascertained value of that which is taken; and that, as complainant was in posses sion, the defendant was put upon inquiry as to its rights.

The defendant insists that the Constitution of the United States is not, to any extent, either as to the Bill of Rights or any other portion thereof, in force in Porto Rico, and that, under the local law as left in force by Congress, what is known as a lease to American law, if for less than six years, is but a personal contract for occupancy between the parties; and if for more than six years and unrecorded, it is not binding upon third persons; and, as this particular contract or lease was not recorded, that it, the defendant, although having knowledge of it, was not obliged to pay any attention to it; and that, when the condemnation proceedings against the owner of the land were completed, it, the defendant, had a right to go upon the tract thus condemned, and which it claims since to have purchased, paying no attention to the occupancy or so-called rights of the complainant, and oust it therefrom.

Defendant, in support of this view, has filed a brief before

Compagnie des Sucreries v. Ponce & G. R. Co.

the court, in which its counsel appears to have gone to considerable trouble in an effort to sustain this view of the law, and, in addition, they have filed transcripts of all of the proceedings had in the local courts for the condemnation of this property and the final purchase of it from the owner, all of which proceedings confirm the statement that the complainant was not a party to it in any way.

We have examined with considerable care the references to the law, as contained in the brief of counsel for defendant, and we cannot admit that the law of Porto Rico, either § 355 of the Code of Civil Procedure, or arts. 2, 23, 27, or any other article of the mortgage law, or any other section of any Porto Rican law, or any of the references given to us from Escriche, Manrosa's commentaries on the Civil Code, or Galindo's commentaries on the mortgage law, justify this extraordinary claim of counsel for defendant, that the action of his client is due process of law as to this complainant, under the Porto Rican law, and we are constrained to say that if the laws themselves referred to could be held to justify the admitted acts of this defendant, the same would be wholly without right. We believe that it cannot be successfully contended that Congress left any such law in force in Porto Rico, or that the act of the local legislature in passing any law that would permit this, or any other defendant, to condemn property and rights of another without giving such other his day in court, would be other than ultra vires as to such legislature, and we use this term advisedly, as § 7 of the Foraker act (31 Stat. at L. 77, chap. 191), makes the people of Porto Rico "a body politic."

While Congress has studiously avoided extending in terms the Constitution of the United States to Porto Rico, and while the Supreme Court of the United States has ever and probably will continue to avoid passing upon that question until it comes

Compagnie des Sucreries v. Ponce & G. R. Co.

before it, we are of opinion that whether the Constitution, as a whole, follows the flag, or not, enough of it or its spirit follows the flag to prevent courts of the United States, having jurisdiction, wherever located, from permitting anybody's property to be taken without due process of law, or from obeying statutes that impair the obligations of contracts. The thought is not to be tolerated that any act of Congress intended to leave any Spanish law in force in Porto Rico, or intended the local legislature to pass or keep in force any law, that would, under our well-known system of jurisprudence, accomplish such result.

The idea here sought to be conveyed seems to have been in the mind of the Supreme Court of the United States when, in Downes v. Bidwell, 182 U. S. 268, 45 L. ed. 1099, 21 Sup. Ct. Rep. 770, it adopted the forceful language of Mr. Justice Bradley in Church of Jesus Christ of L. D. S. v. United States, 136 U. S. 1, 34 L. ed. 478, 10 Sup. Ct. Rep. 792, as follows: "Doubtless Congress, in legislating for the territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution, from which Congress derives all its powers, than by any express and direct application of its provisions."

And the same idea is carried out in the express declarations of the President in military order No. 58, of April 23, 1900, and in the act of Congress of July 1, 1902, establishing a civil government in the Philippine Islands, as is stated in Kepner v. United States, 195 U. S. 100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797.

Whatever the relation between complainant and its landlord is, as to the possession of this sugar plantation, and whether the contract or lease setting it out is recorded or not, it is good

Compagnie des Sucreries v. Ponce & G. R. Co.

as between them, and the defendant had full knowledge of its existence, and saw and knew that the complainant was in possession of this ground, cultivating, using, and occupying it. Whether this lease is recorded or not, it cannot give either the landlord or a mere outsider, who attempts to exercise the sovereign power of eminent domain, the right to ignore it. To admit that the sort of procedure here referred to is valid, would, in our opinion, be to admit that the legislature of Porto Rico can, as stated, impair the obligations of a contract.

All the references in the mortgage law of Porto Rico, which claim that unless the instrument is recorded, etc., it will not be binding on third parties, and defining third parties to mean any person not a party to the instrument, cannot, in our opinion, be held to mean persons who have actual knowledge of it, and certainly cannot be held to mean those third parties who at tempt to clothe themselves with the sovereign power of government, with a right of eminent domain, and thus condemn property for their own use.

To say, on the facts in this case, that this defendant has the right to condemn this land and pay all the money to the landlord, without considering the rights of this complainant, is the assertion of a doctrine we cannot subscribe to. The court cannot concede that to be the law. In our opinion, the third party referred to in the Porto Rican mortgage law is an innocent purchaser for value, not parties condemning with knowledge of the rights of third parties in possession on the ground. What right has this defendant to force this complainant to bring a suit against his landlord for money had and received out of the condemnation money, and take his chances as to its collection? This complainant has a right to insist that it be made a party to the condemnation proceedings, and the money paid into court to secure it, before the defendant should be permitted to

Compagnie des Sucreries v. Ponce & G. R. Co.

oust it from its lawful possession. This procedure will tend to the peace of the community, while any other would tend to revolution.

An examination of the authorities convinces the court that this matter can perhaps be settled in this proceeding, and that the defendant, if it chooses, has a right to have the court send out appraisers to appraise the damage (under the instructions of the court) that would be caused to the complainant by the taking of this property, and the court will do that on application. Or the defendant may, as it chooses, bring a direct proceeding in the local courts under the statute, to condemn the rights of this complainant in the property described; but until it does one or the other of those things, and secures the complainant by the payment of the assessed damages into court, or the filing of a bond in that behalf in the sum of ten thousand dollars ($10,000), to be approved by the clerk of this court, a restraining order will issue against defendant, and it is so ordered.

BERNARDO AGUILO FUSTER

V.

FRANCISCO MARQUEZ CUELLO.

San Juan, Law, No. 370.

1. The fact that the mortgagee mistook his remedy to foreclose a mortgage, and attached and sold other property than that mortgaged, the same not having been alleged to have been done maliciously or without probable cause, does not give the mortgagor a right to an action at law for damages.

2. Section 1803 of the Civil Code does not cover such a case.