twenty-second day of June, eighteen hun- | previously been declared heir ab intestato dred and ninety-three, consign and deposit of said Manuel Sixto, deceased, by the order with the said court, and did place at the dis- and decree of the proper court, to wit, the posal of the same, the sum of four thousand court of the first instance of Humacao, re(4,000) pesos of the money then current in spectively on the 21st and 23d of the month Porto Rico, and the further sum of eight of November, 1893. hundred twenty-two and fifty-two hundredths (822.52) dollars of the same kind of money, the first sum being the amount of the first instalment due May fifteenth, eighteen hundred and ninety-three, and the second sum being the interest due on the aforesaid mortgage credit up to the first of June, eighteen hundred and ninety-three. And the said decree of the said court was duly entered before the commencement of this action, and still is in full force and effect. "And the defendant further says, as to the third instalment above mentioned, that by judgment of the supreme court of Porto Rico, then known as the audiencia territorial, dated the eighteenth day of February, eighteen hundred and ninety-six, rendered and entered in certain foreclosure proceedings had before the said court on appeal from the court of first instance of Humacao; in which proceedings the defendant and one Antonio Roig y Torruellas were plaintiffs, and which said proceedings the said Roig, as owner of the third and fourth instalments of the mortgage before mentioned, sought to foreclose the same to the extent of the third instalment aforesaid, together with certain interest, the defendant was found to be indebted to the said plaintiff Roig in the amount of the third instalment aforesaid, together with the corresponding interest, and was ordered to pay the amount of said indebtedness so found due by the said judgment to the said Roig within the period of thirty days thereof; and the said judgment further provided for execution to issue upon the noncompliance with the terms thereof by the defendant. Said judgment was duly entered before the commencement of this suit, and is still in force and effect. And the said defendant thereupon, and in compliance with the said judgment of the said court, thereafter paid unto the said plaintiff Roig the amounts ordered to be paid by the said judgment, to wit, the amount of the third instalment of the aforesaid mortgage, together with the corresponding interest. And all of this the defendant is ready to verify." "And as to the third and fourth instalments the defendant says that on the 11th day of September, 1894, the aforesaid Belen Sixto, for a valuable consideration, ceded and transferred the said two instalments to one Antonio Roig y Torruella; that thereupon the said transfer was duly recorded, and the said two instalments appeared upon the record to be the property of the said Roig, and thereupon, to wit, on or about the 16th day of May, 1896, the defendant paid the said Roig the amount of said two instalments, together with all interest due." The bill of exceptions brings into the case the testimony and the rulings and charge of the court. The facts developed are: Manuel Sixto sold a farm to the defendant Sarria for $16,000 Mexican money, payable in four equal instalments, with interest. A mortgage was taken upon the property to secure the payment of the purchase price. Manuel Sixto y Andino died November 27, 1892, leaving no issue except two natural children, a daughter by the name of Maria Belen Sixto y Melendez (hereinafter called Maria Belen), who lived in Vieques, and the plaintiff in error, a son, who lived in the island of St. Thomas. After the death of Manuel Sixto, the daughter, Maria Belen, filed her petition in the court of first instance of Humacao, Porto Rico, alleging that she was the only heir of Manuel Sixto, deceased, and praying the court to declare her heir ab intestato according to the provisions of §§ 980 and following of the Code of Porto Rico then in force. Upon June 22, 1893, the defendant in error, Sarria, paid into court, where the petition of Maria Belen was then pending, the first instalment due, with interest. On November 21, 1893, Maria Belen, by decree of the court, was adjudged heir ab intestato of Manuel Sixto, without prejudice to the rights of third parties. On the 25th of the same month the assets received by the administrator of Manuel Sixto, who had been appointed during the proceeding, and the money paid into court by defendant in error, by order of the court, were made over to Maria Belen as sole heir ab intestato. On November 24, 1893, The additional or amended plea sets the plaintiff in error, Adolfo Sixto, preforth: "And the defendant as to the second instalment aforesaid says that he has paid the same, together with the corresponding interest, on the 4th day of April, 1894, to one Belen Sixto, who was then the record owner of said mortgage credit, and who had sented to the same court of first instance his petition to be declared the heir of Manuel Sixto, deceased (jointly entitled with Maria Belen), invoking the exercise by the court of "voluntary jurisdiction" under the section of the code whereby Maria Belen had been adjudged heir. To this petition Maria Belen answered, alleging that she had been | Sarria on June 2 by the judge of first induly declared the only heir of Manuel Sixto, stance until the resolution of the pending and that the plaintiff in error could only appeal." contest her right by a "contentious suit” (expediente contencioso). This decision was certified to the court below in January, 1896, and in March following the solicitor of the plaintiff re registrar that the order of June 2, 1894, was still in force, which was accordingly done, and the defendant in error made reply thereto as follows: "Having received notice that the instalment of the mortgage had been transferred to Mr. Antonio Roig, who has recorded said transfer in the registry of property, and supposing that he will proceed to collect the same judicially as he did the previous instalment, he is unable to accept the notification, and he will appear before the audiencia in the premises." The registrar refused to comply with the order for these reasons: "First, because, subsequent to the illegal cancelation of the cautionary notice, the property as well as the encumbrance had been transferred on the registry; and, second, because the mortgage law contained no provision regarding the form of carrying into effect such an order." Thereafter the plaintiff asked the court for a further order to the registrar, but this was denied. The court sustained this contention, and Sixto appealed, but later abandoned the ap-quested the court to notify Sarria and the peal, and on April 4, 1894, began a suit in the form of a contentious proceeding, making Maria Belen a party defendant, and praying the court to declare him (Adolfo Sixto) an equal heir with her in the estate of Manuel Sixto, and asking the court to issue an order to the registrar of property, requiring him to make a cautionary entry in the register concerning the property affected by this suit, and also requiring the defendant in error to retain, at the disposition of the court, the sums still owing to the estate of Manuel Sixto. On June 2, 1894, a notice was accordingly issued to Sarria and one to the registrar. The one to Sarria was issued on June 5, 1894, and the one to the registrar on June 4, 1894. The defendant, Maria Belen, being notified of these orders, on June 26, 1894, answered the plaintiff's petition, and in her answer prayed that the interlocutory order of June 2, 1894, be vacated and the notices canceled. On August 30, 1894, the prayer of defendant's answer was granted by the court, and orders issued accordingly to the registrar and to Sarria, and notice was given to the solicitor of the plaintiff. On September 1, 1894, the order reached the registrar, and the order of cancelation was made on the books on September 3, 1894. On September 3, 1894, the plaintiff filed a petition for an appeal from the court's order of August 30, 1894, praying that it be allowed "in both effects," that is (Code, § 383), with the effect of a review and stay of proceedings, but the judge granted the same with one effect only, that is, for a review of the judgment. In the appellate court, on November 17, 1894, that court held that the allowance of both effects had been wrongfully denied, and ordered that the appeal be considered as having been taken for both effects. On December 22, 1894, the appellate court granted a further order, that Sarria, the defendant in error, be notified of his obligation under the decree of June 2, 1894, which order was accordingly issued. On November 29, 1895, the appellate court (audiencia) rendered its decision on the merits of the appeal, and reversed the order of August 30, 1894, and reaffirmed the order of June 2, 1894, in its validity and regularity. The court used the following language: "That which was ordered in the decree appealed from, regarding Mr. Laureano Sarria, is hereby set aside, leaving in force the requisition ordered and directed to said The case proceeded to proof and argument, and on December 15, 1896, a final decision was rendered, adverse to the plaintiff, from which decree he took an appeal, which was allowed "in both effects." The appeal was also allowed from the order denying a further order to the registrar. On Febru. ary 2, 1897, the appellate court consolidated the appeals and ordered the suspension of further proceedings until final decision. In the meantime, on April 26, 1896, by an order of the court of the first instance, Sarria was allowed to withdraw his deposit of the third instalment. The order recited that one Roig had become the purchaser from Maria Belen of the third and fourth instalments, and had recovered judgment in the audiencia against Sarria for the third instalment, and found that Maria Belen had the right to transfer these instalments, and ordered a copy of the decree to be placed in the records by the actuary. Thus the matter remained until after the conclusion of the war with Spain, resulting in a change of sovereignty of Porto Rico. By the military government, an order was issued abolishing the territorial audiencia, the appellate court aforesaid, creating in its place the district court of San Juan. On September 29, 1899, that court rendered its final decision upon both appeals, reversing the action of the court below, and deciding the plaintiff to be legally proved the heir of Manuel Sixto. The trial in the United | against the other true heirs; and, as deStates district court in the present suit resulted in a verdict and judgment for the defendant. fendant was not required by any legal authority to pay the first two payments to Belen Sixto, and as the plaintiff is shown in truth to have been an equal heir with Mr. N. B. K. Pettingill for plaintiff in Belen Sixto, the plaintiff is entitled to re error. No counsel opposed. cover one half of those two payments." So far as this contention is concerned, we think the court below was right. The sec Mr. Justice Day delivered the opinion of tions of the Code of Porto Rico (War Dethe court: It is evident from the foregoing statement of facts that the controversy, as it appeared in the United States district court, was resolved into the question whether Adolfo Sixto, who had been duly adjudged the coheir with Maria Belen of Manuel Sixto, deceased, was entitled to recover one half of the amount due on the mortgage debt which the defendant Sarria claimed to have discharged by legal payments. The recovery sought was for one half of the four instalments of purchase money due respectively on the 15th day of May in the years from 1893 until 1896, inclusive. The defendant interposed different defenses to different instalments of the debt. We will proceed to consider them, together with the charge and rulings of the court concerning the same. Referring to the first and second instalments, we find it to be the contention of the plaintiff in error that Maria Belen, having been adjudged heir ab intestato under a decree which expressly reserved the rights of third parties, no payment could have been lawfully made to her as against the rights of the plaintiff in error, and that if any such payment was made it was subject to the risk that the subsequent-established rights of the plaintiff in error might entitle him to recover from Sarria one half of such payments. Upon this subject the court charged the jury: "On February 15, 1894, she [Maria Belen] having been declared the heir, the entry was made of that fact in the registry (of property). I say to you, as a matter of law, that that declaration of her heirship was without prejudice to the rights of third parties, and that meant that if any other person showed himself afterwards to be an heir he was entitled to a proper proportion of the estate; but so far as a collection of debts, and so far as a proper attention to the assets were concerned and the control of them, she became entitled to attend to that." partment translation) under which Maria Belen was declared the heir ab intestato of Manuel Sixto are as follows: "976. After the measures indispensable for the security of the property prescribed in the foregoing section have been taken, and without prejudice to including in the same proceedings the making of the inventory, the designation of heirs ab intestato shall be proceeded with in a separate record. "977. This designation may also be made at the instance of the interested parties, without the necessity of previously taking the steps mentioned, in cases in which they are not necessary and in which the institution of intestate proceedings is not requested. "978. Heirs ab intestato, who are descendants of the deceased, may obtain a declaration of their rights by proving, with the proper documents or with the evidence obtainable, the death of the person whose estate is in question, their relationship to the same, and with the evidence of witnesses that said person died intestate, and that they, or the persons whom they designate, are his only heirs. "The services of a solicitor or attorney are not necessary in order to present this claim. "979. The deputy public prosecutor shall be cited to appear at said proceeding, to whom the record shall afterward be referred for the period of six days for his report thereon. "Should he find the proof insufficient, a hearing shall be granted to the interested parties in order that they may cure the defect. "When the deputy public prosecutor requests it, or the judge considers it necessary, the documents presented shall be compared with the originals. "980. When the foregoing steps have been taken, the judge shall, without further proceedings, make a ruling designating the Upon the same subject the plaintiff in er- heirs ab intestato should he deem it proper, ror had requested the court to charge: "As the ex parte decree declaring Belen Sixto the heir of Manuel Sixto expressly saved the rights of third parties, that was notice to the defendant that any payment made to her was made at his peril as or he may refuse to make such declaration, reserving the rights of the claimants to institute an ordinary action. This ruling may be appealed from both for review and a stay of proceedings. "1000. After the declaration of heirs ab "1001. The judge shall order that there be delivered to the heirs instituted all the property, books, and papers of the intestate, and that the administrator render an account of his administration to them, the judicial intervention ceasing." intestato has been made by a final judgment | fect of these proceedings is to permit the or ruling, the proceedings shall be continued heir ab intestato, after such final decision, according to the procedure prescribed for to receive and collect the estate. It may be testamentary proceedings. that others will establish an interest in the property for which the heir will have to respond, and it is specially provided that, for the purpose of transfer, property shall not be deemed clear until after five years have elapsed. But this does not require that the collection of debts shall be delayed for a like period, or that they shall be paid to the legally declared heir or heirs, upon pain of being required to respond to others who may, within the limitation permitted, establish a right to the property. Such construction would seem to be unreasonable, and we are cited to no authority that goes to that extent. It is opposed to the practice of the It is argued that this appointment of the heir ab intestato is subject to the limitation that the rights of the heir are not fixed until five years have elapsed from the date of the designation by the court proceedings, and in support of this contention certain articles of the Mortgage Law of Porto Rico are cited: "2. In the registries mentioned in the pre- civil law, upon which the Code of Porto ceding article shall be recorded: "1. Instruments transferring or declaring ownership of realty, or of property rights thereto. "2. Instruments by which rights of use, use and occupancy, emphyteusis, mortgage, annuity, servitudes, and any others by which estates are created, acknowledged, modified, or extinguished. "23. The instruments mentioned in articles 2 and 5, which are not duly recorded or entered in the registry, cannot prejudice third persons. "The record of real property and property rights acquired through an inheritance or legacy shall not prejudice third persons until five years have elapsed since the date thereof, excepting in cases of testate or intestate inheritances, legacies, and additions thereto, when left to legal heirs. "381. Property acquired through inheritance or legacy cannot be cleared until five years have elapsed from the date of their record in the registry." But we think this limitation of five years was intended to permit such heirs at law or parties beneficially interested in the estate to assert their rights as against the heir and the property in his hands, and to prevent its transfer except subject to the right of such persons to assert their claims within the permitted limitation. We are here dealing with the right to collect the assets, and the Code provides-§§ 1000, 1001-that after the designation of the heir or heirs ab intestato by a final judgment or ruling of the court the proceedings shall be continued ac cording to the procedure prescribed for testamentary proceedings, and the judge may order that all the property, books, and papers of the intestate be turned over to the heirs, and that the administrator render his account of his administration of the estate, and thereupon judicial intervention shall cease. It seems to us manifest that the ef Rico is based, in which system the heir by intestacy corresponded with the commonlaw administrator, except that the Roman heir was entitled to administer both the real and personal estate. Story, Confl. L. § 508. In the present case the first instalment was due on May 15, 1893, and was paid into the court of first instance according to its order, and a receipt given therefor under the seal of the court, on June 22, 1893. This was done before any proceedings were instituted by the plaintiff in error. The payment was made under the order of the court, and we see no reason why the defendant in error should not be discharged thereby. As to the second instalment, other considerations apply. Sarria testified that while this instalment fell due on May 15, 1894, he paid the same on April 1, 1894, to Maria Belen, which payment, he says, was solemnized by a notarial act duly acknowledged. As to this payment, the court in its charge took the view that the contentious suit of Adolfo Sixto was not commenced until April 4, 1894, of which fact Sarria was not notified until June 5, 1894, and therefore Maria Belen had the right to collect this payment. The suit of April 4, 1894, was the one begun by Adolfo Sixto after the decision against him in the court of first instance, holding that he could only contest the right of Maria Belen by a contentious proceeding, from which the plaintiff in error took an appeal, but abandoned the same, and on April 4, 1894, amended the suit to a contentious proceeding, making Maria Belen a party defendant, and seeking for an order to the registrar to make a cautionary order touching the property in controversy, and also an order to the defendant in error requiring him to retain at the disposition of the court whatever sums he owed to the estate of Manuel Sixto, deceased. On the day of the beginning of this contentious suit, Sarria paid to Maria Belen, anticipating the maturity of the instalment by more | had the right to pay it over. Between the than a month, the amount which would have fallen due on the 15th day of May following. time the court decided the attachment and the time the appeal was allowed in the upper court, Belen Sixto assigned to Roig the third and fourth instalments. I say to you, as a matter of law, that there was nothing to hinder her from doing that at that time; she had, in law, the right to do it." We think that, in view of the testimony produced, the validity of this payment should have been submitted to the jury under proper instructions. The plaintiff testified that he was known to the defendant, The counsel for the plaintiff requested the and that the latter was well aware that he court, upon the same subject, to charge: was a son of Manuel Sixto, deceased. The "As it is shown by the uncontradicted eviproceeding to declare his rights had been be- dence that the judge of the court of first ingun. It is evident from a letter written to stance of Humacao was entirely without auhim on November 11, 1892, by Maria Belen, thority or jurisdiction to issue his order on that she recognized the plaintiff in error as August 30, 1894, directing the registrar to her brother, for in this letter she announces make annotation on his books of said order, the death of "our beloved father," sub- said order to the registrar was void, and the scribed herself as "sister," and requests Six-annotation made by the registrar was void, to to come over to Vieques at once, as his and the former annotation remained in presence was necessary in order to collect force, which was notice to all the world, inmoney coming from the estate. Under these cluding this defendant, that the plaintiff circumstances, the question of whether Sar- had an interest in those payments such as ria had notice of the plaintiff in error's might be declared by the court; and, the rights and demands, and whether this was a court having afterwards decided that the valid payment, or was made in anticipation | plaintiff here is entitled to a one-half interof the possible claims of Adolfo Sixto, with est in said estate, the plaintiff is now entiintent to deprive him of his rights, should tled to recover one half of the last two payhave been left to the jury, instead of the in- ments, with interest." struction given, which practically required a finding for the defendant in error. As to the third and fourth instalments, the defendant claims to have paid these to one Roig. It appears that these alleged payments to Roig were evidenced by certain notarial instruments, which became of record in the office of the registrar of deeds, and, as is recited in that record, Roig appears to have been the declared purchaser of the third and fourth instalments by assignment from Maria Belen, and the court of first instance, on April 25, 1896, at the instance of Sarria, permitted him to withdraw the third instalment, and declared Roig entitled to collect the third and fourth instalments. Upon this subject the court charged the jury: It appears that Adolfo Sixto was not a party to the suit between Roig and Sarria, in which it is declared that Roig was held entitled to recover the third instalment, and if Sarria had notice of the pendency of the suit to establish the rights of Adolfo Sixto, in such wise as to be bound by the result thereof, he could not prevent Sixto's recovering an interest in the property by wrongfully paying it over in the proceedings to which the plaintiff in error was not a party. The court below seems to have given its charge upon this subject upon the theory that the order of August 30, 1894, was not appealed from in such wise as to prevent Sarria from paying the third and fourth instalments to the assignee, Roig, and it is said that he was merely a garnishee in the suit, and had then received no notice not to pay over the money until the lower court had decided whether he had the right to pay it over. The payment of the third and fourth instalments was made to Roig by "In this contentious suit by Adolfo Sixto against Belen, this defendant, Sarria, was ordered on June 2, 1894, to pay into court whatever money he might be owing. That order was served on Sarria on June 5, 1894, and afterwards that court decided that Six-permitting Sarria, in the court of first into, the plaintiff in this suit, was not entitled to attach this money. He obtained an appeal from that judgment, but not from that portion of it that canceled the annotation made in the registry of deeds of the attachment of that fund. Subsequently, on November 17, 1894, an appeal was allowed in the upper court from that portion of it, but no notice was given as to Sarria, who was merely a garnishee in the suit, and who had received no notice not to pay over the money until the lower court decided whether he stance, to withdraw the instalment which he had paid into court under the order of June 2, 1894. These instalments were paid to Roig on May 16, 1896, but in the attitude of the suit then pending to establish the rights of Adolfo Sixto, and Sarria's knowledge thereof, could the latter legally make these payments so as to conclude the rights of the plaintiff in error? It is true that the lower court on August 30, 1894, had held in favor of Maria Belen, vacating the notice sent to Sarria and the cautionary notices to |