Agenjo v. Agenjo, 1414.

• Decision Date: 01 November 1921
• Docket Number: 1414.
• Citation: 276 F. 105
• Parties: AGENJO et al. v. AGENJO et al.
• Court: U.S. Court of Appeals — First Circuit

276 F. 105

AGENJO et al. v. AGENJO et al.

No. 1414.

United States Court of Appeals, First Circuit.

November 1, 1921

Arturo Aponte, Jr., of Humacao, Porto Rico, for appellants.

Joseph B. Jacobs, of Boston, Mass. (Jacobs & Jacobs, of Boston Mass., and Luis Munoz Morales, of San Juan, Porto Rico, on the brief), for appellees.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON Circuit Judge.

This case is here by appeal from a final judgment of the Supreme Court of Porto Rico. The question presented is whether, under section 229 of the Civil Code of Porto Rico, power to authorize the sale of the property of minors is exclusive in the District Court of the judicial district where the property to be sold is situated. This section, in 1910, when judicial authorization was given, was as follows:

'Sec 229. The exercise of the patria potestas does not authorize the father or mother to alienate or burden real property which in any manner belongs to the child, and over which either of them may have the administration, except after securing judicial authorization, which shall be accorded by the District Court of the judicial district where said property is situated, upon proof being furnished as to the necessity or utility of such transfer or burden.'

The Civil Code, of which this forms a part, took effect in Porto Rico on July 1, 1902, superseding on that date the Spanish Civil Code.

The facts briefly stated are these: The plaintiffs, who were minors, at the death of their father, a resident of Porto Rico, inherited from him certain real estate situated within the judicial district of Humacao, on the island of Porto Rico. In September, 1910, their mother, in the exercise of patria potestas, filed a petition in the District Court of San Juan, asking for authority to convey the minors' interests in this real estate. Authorization was granted and by virtue of the same the real estate of the minors was conveyed.

Through a guardian ad litem an action was brought to adjudge the conveyance null and void and to decree that the party in possession by virtue of the said sale deliver same up to the plaintiffs free of incumbrance and account for rents and profits. There was a judgment for the plaintiffs in the District Court, but the Supreme Court of Porto Rico reversed this and dismissed the complaint. It based its decision upon its interpretation of sections 76 and 77 of the Code of Civil Procedure of Porto Rico, which are as follows:

'Sec. 76. In accordance with its jurisdiction, a court shall have cognizance of the suits to which the maintenance of all kinds of actions may give rise, when the parties may have agreed to submit the suit to decision of court.

'Sec. 77. The submission shall be understood to be made:

'(1). By the written agreement of the parties.

'(2). By the plaintiff through the mere act of applying to the court and filing the complaint.

'(3). By the defendant when, after his appearance in court, he takes any step other than to request that the trial be held in the proper court.'

The Code of Civil Procedure went into effect in Porto Rico on July 1, 1904, and the Supreme Court of Porto Rico, construing the above formerly in force in Porto Rico, and also decisions of the Supreme Court of Spain and of its General Directorate of Registries, in regard to analogous provisions of Spanish law, has held that, notwithstanding the express provision of section 229 of the Civil Code, authorization for the sale of real estate of minors can be granted by the court of any district on the island of Porto Rico, provided the judge thereof exercises civil jurisdiction and is competent to have cognizance of questions similar to and of the same kind as the one submitted.

We cannot assent to this view. Whatever may have been the law and practice under the Spanish Civil Code, it is evident that, when the Legislative Assembly of Porto Rico enacted section 229 of the Civil Code, it intended to confine the authorization for the sale of real estate of minors to the District Court for the district in which the property is situated. We are confirmed in this view by the fact that the Legislative Assembly, in 1907, made an amendment which in clear and unambiguous language makes certain that this was its intent. The act, as it was first adopted, contained a provision that the authorization should be given by the District Court of the domicile of the minors; but in 1907 it was amended so that the exercise of the patria potestas would not authorize the father or mother to alienate property belonging to the child, except after securing judicial authorization 'which shall be accorded by the District Court of the judicial district where said property is situated. ' Although this section was again amended in 1911, this particular provision was not changed.

We have held in Martorell y Torrens et al. v. J. Ochoa y Hermano et al., 275 F. 99, that under the old Spanish Codes the law of voluntary submission, whereby a suitor may choose his...