Goico v. Russell & Co., 1542.

• Decision Date: 18 February 1925
• Docket Number: No. 1542.,1542.
• Citation: 4 F.2d 7
• Parties: GOICO et al. v. RUSSELL & CO.
• Court: U.S. Court of Appeals — First Circuit

4 F.2d 7 (1925)

GOICO et al. v. RUSSELL & CO.

No. 1542.

Circuit Court of Appeals, First Circuit.

February 18, 1925.

Jose A. Poventud, of New York City, for plaintiffs in error.

Francis E. Neagle, of New York City (Raymond E. Cook and Rounds, Hatch, Dillingham & Debevoise, all of New York City, and O. B. Frazer, of San Juan, Porto Rico, on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

This is an action of revindication (ejectment), brought in the District Court for the Judicial District of Ponce, and removed by the defendant to the District Court of the United States for Porto Rico. The plaintiff's first contention is that there was error in denying its motion to remand to the insular court, on the ground that the defendant was a partnership, domiciled in Porto Rico, which is also the domicile of the plaintiffs. This contention is without merit. The defendant partners are domiciled in the United States and Great Britain. It is immaterial that under the law of Porto Rico the partnership is an entity referred to in the singular number. This court held in Porto Rico v. Fortuna Estates, 279 F. 500 (the same partnership now defendant in this suit), that "where the jurisdiction of a federal court over a suit brought against a partnership depends upon diversity of citizenship, the question is to be determined by the citizenship of its members, whether under the law of the place of its origin it is regarded as an entity and may sue or be sued in its partnership name." Compare also Mestre v. Russell & Co. (C. C. A.) 279 F. 44. These decisions are conclusive of the right of the defendant to remove. We pass certain alleged technical errors in the removal papers as too trifling for discussion.

At the close of the plaintiff's case, the court granted the defendant's motion for a nonsuit, on the ground that the description of the locus was "so vague and indefinite as to make it impossible for the court or any officer thereof to identify the land." This is the chief point in the case, and its consideration requires an outline of the pleadings.

The amended complaint sets forth that the plaintiffs "are the absolute owners pro indiviso, and entitled to the immediate possession, with title duly registered, of a certain tract of land described as follows: `Tract or parcel of land situated in the municipal district Juana Diaz (Porto Rico), ward or barrio of Amuelas, bounded by the south, east and west with property of Estefania Rivera (now the defendant company), and by the north with lands of Don Manuel Rodriguez. It is composed of six cuerdas (acres), equivalent to two hectares, thirty-five ares, and eighty-two centiares.'"

Also that the "defendant, from June 28, 1917, and at present, withholds and possesses, without right or title thereto, and hence in bad faith," the described land, and has appropriated the products and profits to the plaintiffs' damage in the sum of $8,000.

In the answer, the defendant, on information and belief, denies "that plaintiffs are the owners either pro indiviso or otherwise of the tract of land described in said complaint"; also that they are entitled to possession, or that "said land is registered in the name of the plaintiffs." It alleges that the defendant has at all times held said land in good faith and with good title.

And for a second defense defendant alleges that the defendant is the owner of a tract of land described as follows:

"Tract of land situated in the municipal district of Juana Diaz, barrio of Amuelas, with areas of one hundred cuerdas, equivalent to thirty-nine hectares, thirty ares, and forty centiares. It borders on the north with lands of Don Jose Gallart and those of Don Jose Ortiz, on the east with the lands of the same Gallart, on the south of Jacaguas river, and on the west with lands of Don Francisco Chinchillo."

That on or about October 6, 1916, the plaintiffs then owning an undivided nine-tenths of said land, and a co-owner owning the remaining undivided one-tenth, sold to the Fortuna Estates (defendant's predecessor in title) this tract of land for $25,000; that the land described in plaintiffs' complaint is included in this larger area, title to which is thus alleged to have vested in said defendant.

For a third defense, defendant alleges that the land described in the complaint was represented by the plaintiffs to be a part of the land sold to the Fortuna Estates for $25,000, so that plaintiffs should not now be permitted to allege that the land described in the complaint is not within the tract thus sold to the Fortuna Estates.

A fourth defense sets up that the defendant is the owner of a parcel described as follows: "Rustic. Piece of land situated in the district of Juana Diaz, barrio of Amuelas. It borders on all sides with the Hacienda Luciana of Don Juan Forgas y Bayo (now property of the defendant). It has an area of nine and a half cuerdas, equivalent to three hectares, seventy-three ares, and thirty-nine centiares;" and that the property described in the complaint is included either in this described tract or in the one described under the second defense.

The fifth and sixth defenses are allegations of possession since the year 1860 and title by prescription.

It thus appears that the issue joined was — title to a tract, assumed in the answer to be sufficiently described; that no question was made as to the sufficiency of the description.

At the trial before a jury, the plaintiffs introduced a certificate issued by the Ponce Register of Property, which we understand learned counsel for the defendant to concede made a prima facie case of title in the plaintiffs of a tract of land, described at folio 66 of Volume 2 of the Municipality of Juana Diaz, property number 62, as follows:

"Rural Property. Portion of land situate in the jurisdiction of Juana Diaz, `Amuelas' ward. It is bounded on the south, east and west by the property of Dona Estefania Rivera and on the north by the property of Don Manuel Rodriguez. It has an area of six cuerdas, equivalent to two hectares, thirty-five ares, and eighty-two centiares, of which about one cuerda is planted to plantains and coffee trees, and the remainder is devoted to pasture."

This certificate states that this property is described in slightly different terms at folio 70 of said volume; it also sets forth some history of the plaintiffs' title. No question is made that, unless the description is defective, this is the usual and regular way of making prima facie legal proof of title to property in Porto Rico. The description from the registry bounds the property as does the complaint.

Plaintiff also offered evidence of a witness named Oppenheimer, to the effect that he had been employed by the Fortuna Estates and the defendant as overseer in charge of the lands which covered the locus (now the Goico land); that he knew the Goico land; that it was good land, producing about...