237 F. 145 | 1st Cir. | 1916
This suit in equity was begun August 19, 1912. The relief sought was the avoidance of foreclosure proceedings in the court of first instance of Ponce, begun in November, 1897, and completed during the year 1898. There was an order by said court on January 1, 1898, for a public sale of the mortgaged real estate, and also, later in 1898, an adjudication thereof to Sauri, Subirá & Co., holders of the two mortgages foreclosed and purchasers at the sale. The proceeds of the sale having been insufficient to pay the amount due on the two mortgages foreclosed, there was a subsequent order for the cancellation, as an incumbrance of record, of a third mortgage upon the property sold, held at the time by one Rosaly, since deceased, whose rights under it passed, as is not disputed, to the plaintiffs in said suit in equity, appellants in this court. Besides asking that the foreclosure proceedings be declared void, they asked that said third mortgage be reinstated.
The district court held that no ground for invalidating the foreclosure proceedings had been established, and this result was affirmed on appeal by the Supreme Court of Porto Rico. Thereupon the plaintiff appealed to this court.
The two mortgages foreclosed by Sauri, Subirá & Co. dated from 1880 and 1885, respectively, and were given by two brothers Oppenheimer. That given in 1880 covered two properties, called “Aguas Prietas” and “Consuelo Vayas.” That given in 1885 covered the same properties and also another called “Isabel.” Sauri, Subirá & Co. were not the original mortgagees, but had become owners of both mortgages before instituting the foreclosure proceedings. The Oppenheimers had also given the third mortgage here in question upon the two properties first above mentioned, and Rosaly had become its owner before the foreclosure proceedings. It did not cover the property “Isabel.”
The sums secured by .their two mortgages remaining unpaid after demand, Sauri, Subirá & Co. had, before beginning their foreclosure proceedings, agreed in writing with one of the. Oppenheimers and with the widow-of the other, who had succeeded to some part, at least, of her deceased husband’s rights in the three properties, to pay •certain sums for a transfer of all their rights, if any, in the mortgaged properties, and for their agreement not to obstruct or oppose foreclosure of said two mortgages. Part of said sum's was agreed to be
The notices contained the statement that there were no rights recorded against the properties, subsequent to those existing by virtue of the two mortgages being foreclosed. The statement was not true, as appeared from the foreclosure petition filed by the mortgagees themselves, which had annexed to it a registrar’s certificate distinctly showing Rosaly’s mortgage to be of record as a subsequent incumbrance. There was, however, no claim that the incorrect statement was made for any dishonest purpose or got into the notices otherwise than by inadvertence. The plaintiffs contended that it prejudiced Rosaly’s rights and was a failure to comply with article 172, par. 2, of the Mortgage Law, which required the names of persons interested under subsequent incumbrances and not already notified to be stated in the notices of sale. (Assignment of Error V.)
The notice of sale issued was published in the Gazette, March 4, 5, and 6, 1898. The sale was on March 18th. Article 128, par. 3, of the Mortgage Law provided that “the sale shall take place 20 days after the publication of the notice.” No complaint that the sale was made on insufficient notice was ever made by the mortgagors, but tire plaintiffs contended that as to Rosaly the failure to allow 20 days made the proceedings void. (Assignment of Error VI.)
The notice was posted in the municipality of Ponce, within which the properties lay, on the doors of the court building and of the office of the clerk; the usual places for posting such notices, according to the evidence, under such circumstances. There were no notices posted in the particular wards within which the properties lay, and it did not appear that there were any usual places for such posting within said wards. The Mortgage Law, or the regulations for its execution (article 172), required posting “in the customary places where the proceedings are being had and where the property is situated.” The plaintiffs contend that this requirement had been insufficiently complied with (Assignment of Error IV); but this alleged error is not insisted on in the brief filed here on their behalf.
Both courts in Porto Rico agreed in considering the alleged defects specified in the above assignments IV, V, and VI insufficient to invalidate the foreclosure proceedings or Avarrant the relief sought by the plaintiffs’ bill. Rosaly was found to have had due notice of the proceedings, and although they disputed this finding in the Supreme
How far the alleged defects relied on affected the validity of the proceedings in 1898, and to what extent Rosaly’s successors were entitled to take advantage of them in 1912, were questions of purely local law; and the action taken by the court below regarding them is to be upheld except upon conviction of clear error committed. Cardona v. Quinones, 240 U. S. 83, 88, 36 Sup. Ct. 346, 60 L. Ed. 538. The plaintiffs fail to satisfy us that any such clear error has been committed.
The above conclusions dispose also of assignments I and VII. They leave for consideration only assignments VIII and IX, which raise only questions as to costs, the action regarding which was discretionary with the court below; and nothing is found in the record indicating any abuse of such discretion. Other errors are asserted in the brief filed here by the appellants, but, there being no assignments of error relating to them, they are not entitled to consideration.
The judgment of the Supreme Court of Porto' Rico is affirmed, and the appellees recover costs of this appeal.