Morales v. Velez , 18 F.2d 519 ( 1927 )

BINGHAM, Circuit Judge.

This is an appeal from a judgment of the Supreme Court of Porto Rico in favor of the defendant. The action was brought in the district court of Mayaguez. The record contains two complaints. The second complaint was substituted for the first, and is the one upon which judgment was rendered in the district court and in the Supreme Court. In the first complaint it was alleged that, at the end of the year 1879, the plaintiff, a single woman of legal age, and Avelino Cruz, a bachelor of legal age, entered into partnership, wherein they agreed “to place and placed in common all of the property and labor of both, to share among them by halves the profits that might be obtained,” setting out the objects of the partnership and particular duties which the respective parties were to perform thereunder; that the plaintiff contributed 300 pesos in cash, a yoke of oxen, two cows, a heifer and several pieces of furniture; that Avelino contributed six yoke of oxen, a cart, and a horse; that the partnership continued from the end of the year 1879 to the I5th day of November, 1921; that, while the property and rights acquired were placed in the name of Avelino, they belonged to the partners in equal shares; that the property thus acquired consisted of rural and city property, mortgage credits, promissory notes, etc., which are specifically set forth; that Avelino died November 15,1921, leaving a natural, recognized daughter, the defendant, who had been declared to be the sole and universal heir of Avelino; and that the defendant had taken possession of the property and deprived the plaintiff of the possession, use, and enjoyment of her one-half interest therein. The prayer was that she be declared the owner of a one-half interest in the real properties described, that she be put in' possession of the same, and that she recover from the defendant her.share in the rents, profits, etc. The defendant filed an answer which in substance was a general denial.

After the trial had begun and substantially all the evidence introduced, the plaintiff was allowed to file an amended or substituted complaint. In this complaint she alleged:

(I) That “Avelino, known as Lino Cruz y Toro, and the plaintiff lived together and in common in the same dwelling house and home from the year 1880 up to the 15th of November, 1921, when Avelino, known as Lino Cruz y Toro; died”; (2) that "with the means, the work, the co-operation, and the savings of both, during a period of over 40 years, Avelino Cruz y Toro and the plaintiff made a capital composed of property, rights, actions and money” [describing the same property and rights set out in the prior complaint] ; (3) that “the property and rights and actions to which the preceding paragraph refers are in the name of Avelino, known as Lino Cruz y Toro, but the plaintiff alleges that she is the owner of one-half of said property because it was acquired while living in common with Avelino Cruz y Toro, having contributed to acquire the said property with her work, her savings, her co-operation and her means”; (4) that “Avelino, known as Lino Cruz y Toro, died in San German on the 15th day of November, 1921,” and the defendant, his natural acknowledged daughter, was declared his sole and universal heir November 18, 1921; (5) that the defendant has seized all the property, rights, etc., left by Avelino at the time of his death, depriving the plaintiff of her right to possess one-half of the property and rights above specifically set forth. The prayer was that the plaintiff be declared the owner of one-half of the property and rights set forth in the complaint, that she be put in the possession of the same, and that she recover the rents, proceeds and profits accruing from said interest.

In the district court it was found: (1) That on or about 1887 the plaintiff started to live in coneubinage with Avelino at his home; (2) that at this time Avelino had property consisting of a house, the land surrounding it, sugar cane plantations and an established business for the transportation of merchandise, by means of carts driven by oxen, and other personal property; (3) that on the evidence it declined to find any agreement of partnership or community of property between the parties; (4) that the parties continued living in this relation of concubinage at said house until Avelino died November 15,1921; (5) that all the property acquired by Avelino was acquired in his name by public instruments and inscribed in the registry of property; that no title, right or interest in favor of the plaintiff appears in said documents; that the plaintiff did not intervene in the business Avelino carried on with his property, or in its management; that the plaintiff and Avelino each had their separate property, and each contracted with reference to his or her property independently of each other; (6) that an implied agreement of partnership or community of property giving the plaintiff a right to one-half of the property left by Avelino will not be indulged as the claim is based on an illicit cause or consideration; (7) that the defendant is the heir of Avelino; (8) and that the plaintiff never during her coneubinage claimed any interest in the property of Ave-lino, or realized any act showing that she had such interest or that she had co-operated in its acquisition.

Having found that the coneubinage relation between the plaintiff and Avelino were the cause and reason of their living together at his home and that the services which she rendered there were incidental to such relation, the district court held that a contract of partnership or community of property would not be deduced from such relation, nor a contract to pay for such incidental services, and dismissed the complaint.

The Supreme Court approved the findings of the court below, and pointed out that according to the allegations of the amended complaint the claimed interest of the plaintiff in one-half the property was made to depend upon the illicit or concubinage relation existing between the parties; that the co-operation and work of the plaintiff referred to in the complaint and disclosed by the evidence were “incidental to her duties as a concubine” or the “common life that in a permanent manner they carried on”; and that the plaintiff “had not only .separate personal property but real property and that she carried on operations independent from those carried on by Avelino.” It held that neither the allegations of the amended complaint nor the facts found warranted the relief asked, and dismissed the complaints.

The evidence bearing upon the disputed questions of fact being conflicting, and the district judge, who saw the witnesses, being in a better position than this court to judge of their credibility and the weight to be given to their testimony, and the findings of the two lower courts being in accord, we follow the rule prevailing in this circuit and adopt the concurrent findings of those courts as the findings warranted by the evidence.

As according to those findings the plaintiff and Avelino had separate properties with reference to which each contracted independently of the other, and coneubinage was the cause and reason of their living together at his house, and the co-operation and work which the plaintiff rendered there were merely incidental to her relation as concubine, we fail to see wherein the Supreme Court erred in dismissing the complaint, for these facts do not support her claim to one-half the property set out in the complaint. It is immaterial whether the complaint states facts sufficient to entitle the plaintiff to relief for the facts found are insufficient to entitle her to the relief she asks.

The judgment of the Supreme Court of Porto Rico is affirmed, with costs to the appellee.