Quilichini v. Agostini.

Complainant by his bill seeks to show that the property described in the complaint really belongs to one of the principal respondents, although it stands in the names of others of them, and that the latter should be held trustees in the premises; that the property was transferred in fraud of creditors, and complainant being such a creditor, is entitled to have the same subjected to the payment of his debt. The suit has been pending for nearly three years. A large amount of evidence was taken in it. The pleadings were extensive before issue was joined, and a large number of exhibits was introduced, most of which are voluminous in character. The exhibits being all in Spanish, although accompanied by translations, are of a character that has required a good deal of labor from the court in their examination. The court has also expended a considerable amount of time in an examination of the more than usually large number of citations given in complainant's briefs.

A statement of the case may be made as follows: For a good many years previous to 1893, during the Spanish régime in Porto Rico, a family by the name of Agostini resided at and in the vicinity of Mayaguez in the western part of the island of Porto Rico, and were, it seems, planters and coffee raisers of considerable means. The record does not show just what the exact blood relation of all the members of this family mentioned in the record is, but it does show that two of the principal respondents, Juan Agostini and Pedro J. Agostini, are father and son respectively.

It appears that on February 16, 1893, Juan Agostini, the father, who had been a man of means, and perhaps still continued to be, made his four promissory notes, all of which, of course, were in Spanish, to one Pedro Agostini y Fecini. The first of these notes was for 1314.41 pesos and ran for six

Quilichini v. Agostini.

years, becoming due February 28, 1899; the second of them was for 1554.42 pesos and ran for seven years, becoming due February 28, 1900; the third was for 2081.19 pesos and ran for eight years, becoming due February 28, 1901; and the fourth was for 4,000 pesos and ran for nine years, becoming due February 28, 1902. It does not appear what transaction the giving of these notes grew out of. All of these notes, by a writing to that effect in the lower left-hand corner of each of them, were guaranteed, without stating that it was for value received, by the son, the respondent Pedro J. Agostini, in these words: "Garantizo el cumplimiento de esta obligación con renuncia de los beneficios de excusión y orden." Which, it seems, means that perhaps the guarantor virtually made himself a principal, because he guarantees their payment and renounces his supposed legal right to force the payee first to exhaust his remedy against the maker. All of the notes were thereafter duly indorsed by the payee to one Pedro R. Agostini, and thereafter by the latter to one Charles A. Beatley. Default was titade in the payment of the whole of all of them, and Beatley thereafter, on November 17, 1902, some nine months after the fast of the notes was payable, brought a suit against the father and son, Juan and Pedro J. Agostiní, on the same, and, on the second day of December of that year, recovered a judgment against them on the notes on the law side of this court, which, when reduced to gold, amounted to $5,940.45, to which was to be added $24.20 costs. Thereafter, on December 31, 1902, execution was duly issued on, the judgment, and later, on January 5, 1903, returned nulla bona by the marshal. A year later, on January 7, 1904, Beatley, who, it seems, was a citizen of the United States, for what appears on the face of the paper to be an adequate consideration, assigned this judgment to the

Quilichini y. Agostini.

complainant, Santiago Quilichini, a citizen of the Republic of France. It does not appear whether Pedro Agostini y Fecini, the original payee of the notes, was of citizenship different from that of the maker and guarantor thereof, who were Porto Ricans, but it appears no jurisdictional or other point was made on that account in the suit at law, where the judgment was taken on the default of the defendants, and they, at least, are probably now concluded as to that..

:

Eleven days after he, acquired the judgment as aforesaid, the complainant, Quilichini, on January 18, 1904, filed this bill in equity against the said Juan Agostini, the original maker of the notes, Pedro J., Agostini, the guarantor of them as aforesaid, and against one Ana Merle, who is alleged to be the concubine of the said Pedro J. Agostini, and against one José V. Llanas y Ayala, to whom the said Ana Merle had made, or attempted to make, a recent intermediate transfer of the property in question as hereinafter set out; and against the ten illegitimate respondent children of the said Ana Merle, most of whom were minors, and to whom the said Ana Merle, through the said José V. Llanas y Ayala, had transferred, or attempted to transfer, the property in question.

It would not be profitable at this place to describe in detail the piece of real estate in controversy. Suffice it to say, that it is a farm known as "Noublet" (nearly all fincas or farms in Porto Rico have proper names by which they are known in the community and in the registry offices). It is situated over in the vicinity of Mayaguez and consists of 60.42 cuerdas and has a very considerable amount of improvements thereon. The respondent Pedro J. Agostini had owned this farm for a number of years, having purchased it from his father, the respondent Juan Agostini. On May 2, 1894, more than fourteen months

Quilichini v. Agostini.

after guaranteeing the notes in question, the said Pedro J. Agostini conveyed this farm to the respondent Ana Merle, the deed setting out the alleged fact that he received 4,000 pesos therefor. This transfer, it will be noticed, was nearly five years before any of the four notes which the said respondent had guaranteed were payable, and about eight years before the last one, which was for the largest amount, would become due.

It is not in evidence that the said Pedro J. Agostini was indebted to any person whatsoever at the time he made this transfer in 1894, other than such contingent liability as could be claimed to exist because of the guaranteeing of the notes in question; but it is in evidence that he was at such time, and for at least six or seven years thereafter, a wealthy man in the said community, with large credit. In fact, counsel for complainant in the fifth paragraph of his brief sets out: "That Pedro J. Agostini was a man of property at the time of the alleged sale on May 2, 1894, with a large credit in the house of Schultze & Company of Mayaguez, and capable of making large purchases, and known as a wealthy man, and, up to within a couple of years last past, or just before our original suit (November, 1902), was possessed of a large credit in said house, which credit had been of some fifteen years' standing." A Mr. Federico Philippi, a member of the firm of Schultze & Company of Mayaguez, testified in the cause that the respondent Pedro J. Agostini, between the latter part of 1898 and the latter part of 1899, possessed a credit in his house of Schultze & Company of nearly 35,000 pesos, which remained there for some time, said Agostini paying it out gradually from time to time by checks, orders, and transfers, the last of it being a few dollars which he checked out the latter part of July, 1900, and that his house had had business dealings

f

Quilichini v. Agostini.

with himself and his father for some fifteen or more years previously.

It appears in evidence that on November 3, 1902, or some nine months after the last of the notes was due, and eight and a half years after she had received the property in question, the respondent Ana Merle transferred it by a proper deed, for an alleged consideration of $3,000, to the respondent José V. Llanas y Ayala, and nine days later, on November 12, 1902, the said Llanas retransferred it by her request, when he asked to rescind the sale, to her ten children, who are made respondents herein as aforesaid, both deeds being recorded the same day. A great deal of evidence was introduced by complainant to show the bad faith of this transfer of the farm to Llanas and its retransfer to the children, but, even if this is true, we do not think it is material in the view we take of the case.

It also appears from the evidence that along in about the year 1899 the respondent Pedro J. Agostini began to put property out of his hands and to give some of it to this woman, Ana Merle, and began to dispose of his property pretty generally, and that he was perhaps indebted somewhat at this latter date. At least one creditor, a Mr. Todd, after getting judgment against him for some two or three thousand dollars, followed one of the transactions where property had been transferred while a chancery lis pendens was in force, and recovered it. That case, Romeu v. Todd, ante, p. 9, is now pending in the Supreme Court of the United States on the important question of the binding force of a chancery lis pendens in this court in Porto Rico.*

The court has never seen any of the parties mentioned in the bill of complaint, and has no personal knowledge of any of

*[Reversed in 206 U. S. 358, 51 L. ed. 1093, 27 Sup. Ct. Rep. 724.]