Banco Commercial v. Compania Azucarera , 11 P.R. Fed. 347 ( 1919 )

Hamilton, Judge,

delivered tlie following opinion:

In this case it was decreed on Hay 10, 1919, that a certain mortgage made by the main defendant to the plaintiff is a valid instrument, that a default has occurred, and ordering foreclosure sale of 'the property described. This order of sale was carefully considered, and upon his request special provision inserted to protect the intervening creditor. The attorney for this creditor having gone to the states on business, a subsequent attorney for the same creditor asks a reconsideration of the decree of sale so as to except from the decree 'of sale a locomotive, cars, and the like as being not properly included in a mortgage of immovable property.

1. The court is averse to reconsidering decrees made after hearing of all parties in interest, unless the alleged defect relates to jurisdiction. There is no jurisdictional defect as to parties in the case .at bar and none as to. the subject-matter, that is, foreclosure of a recorded mortgage. The question raised related to whether what at common law is called personal property can be included in a Porto Pico mortgage duly recorded. Reliance is had upon the case of United States Mortg. & T. Co. v. Central San Cristobal, 7 Porto Rico Fed. Rep. 693-715, but there the question was raised by answer, and not as in the case at bar by motion after decree had upon what is equivalent to an answer. Certainty is a requisite in judicial proceedings, and it would tend to make the proceedings of a court unstable if reconsideration were granted under the circumstances of the case at bar. The case, in so far as relates to this particular point, could almost be said to be a consent decree. The application comes too late.

2. It is possible, however, that the point now sought to be raised can come up in another way; The question of right to foreclose the mortgage is settled,- but not perhaps whether everything mentioned in the mortgage properly belongs there or not. In other foreclosures in this court instructions ha.ve been given to the master at any time before the sale to exclude items from the sale, and if convinced by anyone having an interest that any articles should not be sold under the circumstances of this -case the court will not- hesitate to make a similar order.

The application is denied.

It is so ordered.