The owner of an estate in Porto Rico mortgaged the property to a
bank, the mortgage being granted by notarial act describing the
property and the fruits thereof and declaring that it was all
planted in cane except certain specified parts, including the sugar
manufactory, and that the loan secured was to enable the borrower
to develop and keep the plantation; as additional collateral, the
owner delivered to the bank a policy of fire insurance on "stock of
sugar and molasses deposited in the sugar manufactory on the
estate," which was not to take effect, however, until several
months thereafter; after the policy took effect and during its
life, the sugar house and stock was burned; action was not brought
until more than fifteen but less than twenty years thereafter.
Meanwhile, the bank had become bankrupt and a special master
appointed with power to collect the assets thereof. In an action by
the special master on the policy, the company denied liability and
the plaintiff's capacity to sue, also pleading prescription. The
lower court permitted one of the parties claiming an after-acquired
interest in the policy antagonistic to the plaintiff to be joined
as party plaintiff. A verdict was rendered for both against the
company. In sustaining the verdict,
held that:
Where the decree appointing a special master gave him express
authority to sue to collect all assets of the bankrupt, the fact
that he was merely designated as special master did not deprive him
of the special powers to sue conferred on him by the decree.
Under the law in force in Porto Rico, the growing crop was, by
operation of law, included in the mortgage to the bank even though
it had not expressly purported to embrace the fruits growing upon
the mortgaged premises.
The growing crop continued to be affected by the mortgage after
its harvest or manufacture into sugar up to the time of its removal
or warehousing.
The rights of the mortgage creditor attached to indemnity for
insurance upon the mortgaged property, including the crops,
provided the loss occurred after the execution of the mortgage.
In countries governed by the civil law, a mortgage is
indivisible, and where junior incumbrances have not acquired rights
necessitating a different course, a mortgagee may assert the
entirety of his mortgage rights against any or all of the property
affected by the mortgage.
In the absence of express Spanish legislation affecting Porto
Rico, the law prior to the extension of the Civil Code thereto in
1889 concerning limitations
Page 199 U. S. 354
of personal actions is that generally prevailing under Spanish
law, and in this case, the twenty-year term applied, and not the
fifteen-year term applicable under the Civil Code after its
extension to Porto Rico.
Amendments are within the sound discretion of the trial court,
and not susceptible of review on error except for a clear abuse,
and in this case there was no such abuse nor was there any
impropriety in allowing the amendment joining the additional party
plaintiff.
The facts are stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
Whether a judgment upon a verdict enforcing against the
plaintiff in error a contract of fire insurance is erroneous is the
general question for decision. The record is confused, the
pleadings involved, and the errors assigned numerous. We shall
therefore, at the outset, state the contracts with which the
controversy is concerned, the pleadings, and such uncontroverted
facts as are essential to be borne in mind in order to comprehend
the issues raised by the assignments of error.
On September 15, 1884, the Royal Insurance Company issued its
fire policy in favor of Antonio Amadeo, "estate owner of Quebrada
Arenas Maunabo," to the amount of sixteen hundred pounds sterling
"on stock of sugar and molasses deposited in the sugar manufactory
on the estate Quebrada Arenas," the risk only to begin two months
and four days thereafter --
viz., on November 19, 1884,
and embracing the period between that date and November 19,
1885.
On September 19, 1884, four days after the taking out of the
policy, Antonio Amadeo, the insured, by a notarial act acknowledged
that he had received a loan from the Caja de
Page 199 U. S. 355
Ahorros, a bank of Ponce, Porto Rico, amounting to $15,036.27,
which he obligated himself to repay in two installments, due in
February and March, 1885. It was recited in the act that the money
was lent to enable Amadeo "to attend to the developing and keeping
of a sugar plantation by him owned." The act also described the
plantation as the estate of Quebrada Arenas, gave the quantity of
land, which it was declared was all planted in cane, except where
used for pasturage, and where covered by a sugar manufactory and
other appurtenant buildings. A mortgage in favor of the lender was
granted by the notarial act upon all the property described "and
the fruits thereof."
On the sixth of February, 1885, the sugar manufactory on the
estate of Quebrada Arenas was burned, and there was destroyed in
the factory sugar and molasses alleged to be equal in value to the
sum of the insurance. It was shown that some of the sugar and
molasses was in hogsheads and some was in pans and other apparatus,
going through the process of manufacture.
Prior to the year 1901, in a court of the Island of Porto Rico,
the Caja de Ahorros was declared a bankrupt, and trustees were
appointed and took charge of its assets. In the year 1901,
proceedings were begun in the United States District Court for
Porto Rico by creditors of the bankrupt against the trustees, and
Robert A. Miller was appointed a special master, with power to
collect the assets of the bankrupt estate. On April 23, 1902,
Miller, as special master, commenced this action on the policy. The
declaration averred the appointment of Miller and the authority
given him to collect the assets of the Caja de Ahorros. The
execution of the policy of insurance and mortgage of the plantation
was then recited, and it was averred that the Caja de Ahorros, as a
mortgage creditor, was entitled to the avails of the policy of
insurance, and therefore had a right to enforce the same.
The declaration was demurred to first on the ground that Miller,
as special master, was without authority to sue, and
Page 199 U. S. 356
second that the action was prescribed, no reference being made
to the period of limitation relied upon. A general demurrer was
also filed. The court overruled the special demurrers and sustained
the general demurrer because of the want of precision in some of
the averments of the declaration, which was afterwards remedied by
amendment.
To the declaration as amended, three pleas were filed -- the
general issue, a prescription of six years, and a prescription of
fifteen years. A demurrer was sustained to the plea of six years,
joinder was had on the general issue, and a replication was filed
setting up various acts which it was alleged were interruptive of
the alleged bar of fifteen-year limitation. Subsequently an
additional plea was filed averring in substance that, on September
3, 1884, Antonio Amadeo, by way of pledge, had assigned the policy
of insurance in question to a bank styled the Credito Mercantil,
free from any claim of the Caja de Ahorros, the alleged mortgage
creditor, and that, by judicial proceedings, the policy had been
sold and purchased by said Credito Mercantil, and as neither the
Caja de Ahorros or Miller were the transferees of the Credito
Mercantil, the plaintiff was not entitled to recover. A replication
was filed denying all the averments of the plea, but admitting that
Antonio Amadeo, on a date not named, had deposited the policy as
collateral security with the Credito Mercantil, and that that
corporation had, after the fire, bought in the policy at a judicial
sale by it provoked, and had subsequently transferred the policy to
one Lucas Amadeo. Upon this replication issue was joined by the
defendant. Subsequently the court allowed Lucas Amadeo to become a
party plaintiff, and permitted amendments to the declaration to
accomplish this result. These amendments averred the delivery of
the policy as collateral security by Antonio Amadeo to the Credito
Mercantil, the date not being given, the sale, long after the fire,
of the policy under judicial proceedings, and its purchase by the
Credito Mercantil, and the subsequent transfer thereof by the
Credito Mercantil to Lucas Amadeo. It being besides
Page 199 U. S. 357
alleged that, by the effect of this transfer, Lucas Amadeo
became a part owner of the policy "subject to the mortgage of the
insured to Caja de Ahorros." No answer was filed to the amended
complaint. An exception was, however, noted to the action of the
court in permitting Lucas Amadeo to be joined as plaintiff.
The cause came on for trial. After the impaneling of a jury, the
court allowed the defendant to file six additional pleas, which
were to be considered as traversed upon the record and which were,
in substance, as follows: 1st. That the plaintiff was not entitled
to recover on the policy because Antonio Amadeo, in obtaining the
insurance, had misdescribed the property or concealed material
facts. 2d. That no recovery could be had in favor of the Caja de
Ahorros or Miller, because no other person than Antonio Amadeo had
any interest in the policy by operation of law, and no other person
had any right in the policy by a conventional assignment from the
insured, or, if there had been such an assignment, no notice
thereof had been given the company, and its consent had not been
indorsed on the policy, as required by its terms. 3d. Because
Antonio Amadeo had materially increased the risk, without the
knowledge and consent of the defendant, after the issue of the
policy. 4th. That recovery could not be had because the insured had
not, within fifteen days after the fire, furnished adequate proof
of loss, as required by the policy. 5th. That recovery could not be
had because petroleum and other inflammable oils had been stored
upon the premises, contrary to the terms of the policy. 6th.
Because the claim made by the insured following the fire was false
and fraudulent, and the fire occurred by the incendiarism of the
insured.
At the trial, evidence having been admitted tending to show the
bringing by Miller, special master, of a suit in the district court
of the United States to foreclose the mortgage against the
plantation executed by Amadeo, it was stipulated by both parties
that no sale of the plantation to enforce the
Page 199 U. S. 358
mortgage thereon had yet been made. There was a verdict and
judgment in favor of Miller, special master, and Lucas Amadeo, for
the amount of the policy and interest.
Putting out of view for the present the question of the
correctness of the action of the court in allowing Lucas Amadeo to
be made a party plaintiff, it results that the issues arising on
the trial were all embraced under the following headings:
1. Had the plaintiff capacity to sue, even if a cause of action
in favor of the Caja de Ahorros was shown by the declaration?,
or
2. If Miller had the capacity to sue, did the Caja de Ahorros,
as a result of the mortgage, acquire any right in or to the avails
of the policy of insurance, and if so, did such right arise by
operation of law, without the existence of a transfer by the
insured of his rights under the policy and the acceptance of such
transfer by the company?
3. If the right to enforce the policy obtained by operation of
law, without assignment by the insured, could the Caja de Ahorros
enforce the right by suing on the policy, and without previously
exhausting its remedies against the other property embraced by the
mortgage?
4. Even if the Caja de Ahorros was vested with the rights of the
insured, and could exert such rights by suit on the policy without
previously exhausting the other mortgaged property, had there been
such misrepresentations by the insured in taking the policy or such
failure after taking it to comply with its terms as precluded the
right to recover?
5. In any event, was the action barred by the prescription of
fifteen years?
And as the foregoing questions embrace every proposition covered
by the errors assigned except as to the right to join Lucas Amadeo
as a party plaintiff, we come to consider the questions in the
order stated, before passing on the error alleged to have arisen
from an asserted improper joinder of parties.
First. The court found that the appointment of Miller as
Page 199 U. S. 359
special master gave him express authority to sue to collect all
the assets of the Caja de Ahorros. As the record of the appointment
of Miller, although introduced in evidence, does not form a part of
the bill of exceptions, we must assume that the ruling of the court
was correct, and, this being assumed, it obviously results that the
court below rightly held that the mere designation as special
master did not have the effect of depriving Miller of the
substantial powers conferred upon him by the decree of the court
appointing him.
Second. The proposition that the Caja de Ahorros acquired no
right to the policy of insurance in virtue of the mortgage involves
two contentions, which require distinct consideration -- the one,
the proper construction of the policy and the other the operation
of the law of Porto Rico upon the policy when properly construed.
The first rests upon the assertion that the sugar and molasses
covered by the policy was a distinct lot of sugar and molasses
warehoused on the plantation at the time of the issue of the
policy, and therefore had no legal relation to a subsequent
mortgage of the plantation itself, and the second that, in any
event, sugar and molasses in the manufactory on the plantation was
movable property, not susceptible of being mortgaged under the law
of Porto Rico.
The policy covered a "stock of sugar and molasses deposited in
the sugar manufactory on the estate of Quebrada Arenas." It is true
that the word "deposited," when standing alone, might well be
considered as referring to exclusively sugar and molasses then
existing, and in the sugar house. But the correctness of this
construction is negatived by the fact that the risk under the
policy was not to attach at the date of the policy, but in two
months and four days thereafter. When this period of the
commencement of the risk is considered in connection with the place
at which the property insured was situated --
viz., a
sugar manufactory upon a sugar plantation on which there was a
growing crop -- we think the policy must be held to have covered
sugar to come into the sugar house on the plantation as the result
of the future operation of the factory. And
Page 199 U. S. 360
this conclusion is fortified by the indefinite description given
of the property insured, which was not of a given number of
commercial packages of sugar and molasses held in a warehouse, but
merely a stock of sugar and molasses, a description embracing such
stock in whatever form existing, and which might be in the factory
at the time the risk attached.
Additional force to the construction we give the policy likewise
results from the course of the trial below; since it appears that
no objection was noted to the introduction of testimony showing
that the property destroyed, for which a claim under the policy had
been made by the insured, consisted of sugar and molasses which was
in the sugar house as the result of the process of manufacture of
the growing crop therein carried on, and moreover, no instruction
was asked upon the hypothesis that, if the property destroyed was
of that character, it was for that reason alone not covered by the
insurance, or embraced in the mortgage.
The policy, then, embracing a stock of sugar and molasses to
come into the sugar house on the plantation as the result of the
manufacture of the crop which was growing thereon at the time the
policy was issued, the question then is did the mortgage creditor,
in virtue of the mortgage, acquire a right to the avails of the
policy?
Undoubtedly, as a general rule under the Spanish law in force in
Porto Rico at the time of the giving of the mortgage, only real
property was the subject of mortgage. Mortgage law of 1880, Art.
114; Mortgage Law of 1893, Art. 110, War Department translation.
But, by that law, a mortgage extended to the
"natural increase, improvements, growing crops, and rents not
collected when the obligation falls due, and the value of
indemnities allowed or due the owner for insurance on the property
mortgaged, or by virtue of condemnation by right of eminent
domain."
Mortgage Law of 1880, Art. 118; Mortgage Law of 1893, Art. 110.
And the Mortgage Law of 1880 as well as the Mortgage Law of 1893,
moreover, provided as follows:
Page 199 U. S. 361
"In accordance with the provisions of the preceding article, the
following shall be considered mortgaged together with the estate,
provided they belong to the owner of the estate, although they are
not mentioned in the contract."
"
* * * *"
"3. Crops which at the time the obligation falls due, are
growing on the trees and plants, or have already been harvested,
but not yet removed or warehoused."
"
* * * *"
"5. Indemnities awarded or due the owner of the mortgage realty,
either for the insurance thereof or for the crops, provided the
damage occurred after the creation of the mortgage, or on account
of condemnation of the land by the right of eminent domain.
Mortgage Law of 1880, Art. 119; Mortgage Law of 1893, Art.
111."
To grasp the import of the provisions just quoted, a general
understanding of the system of mortgages prevailing in the
countries governed by the civil law is necessary. By that law, the
title to mortgaged property remains in the mortgagor, and the
effect of the mortgage is not therefore to deprive the mortgage
debtor of his right to administer the property before the
obligation falls due. In other words, whilst the mortgage
dismembers the ownership by depriving the owner of the right of
abusus, and therefore divests him of the perfect
ownership, it leaves him the imperfect ownership, with the full
usus and
fructus of the property mortgaged.
Generally, in such countries and by operation of law, growing crops
are included in a mortgage; yet, as such crops are naturally
thereafter to become movable by their harvesting as an incident of
administration and of the
usus and
fructus, the
right of the owner to realize by gathering the crops and disposing
of the same before the mortgage becomes due exists, such gathering
and realizing being considered as a mobilization of the crop,
therefore taking it beyond the scope of the mortgage.
See
Code Napoleon, Art. 2118; Paul Pont, Privileges et Hypotheques,
vol. 1, p. 353, secs. 360, 362. Indeed, under the Napoleon
Page 199 U. S. 362
Code, this power of the debtor to administer the mortgaged
property by an act of administration, done without fraud and in
good faith, is by a writer on that Code asserted to be so complete
that his right to produce the mobilization of a crop is deemed to
arise by a mere sale of the crop as growing, without any actual
concurrent severance of the crop from the realty.
Ibid.
Sec. 363.
It will be observed that although, generally speaking, the
Spanish law, in force in Porto Rico, conforms to the theories just
stated, it restricts the right of administration and power to
mobilize a growing crop to narrower limits than is the case under
the Code Napoleon. Thus, by the terms of paragraph 3 of the Code
for Porto Rico, the power of the mortgage debtor to administer is
controlled by a provision causing crops which are harvested at the
time the mortgage falls due to remain subject to the mortgage,
despite the harvesting, provided they have not yet been "removed or
warehoused." And it will also be observed that paragraph 5 of the
same code, as to indemnities arising from insurance on crops,
further restricts the power of administration vested in the
mortgagor by declaring that, as to indemnities arising from
insurance on the crops, the right of the mortgage creditor
attaches, even although at the time of the loss, the mortgage debt
had not become due, provided the damage occurred "after the
creation of the mortgage." This meaning, plainly resulting from the
terms of paragraph 5, is also sustained, as we shall have occasion
hereafter to show, by the act governing in Porto Rico concerning
the procedure for the enforcement of mortgages, wherein the right
is conferred upon the mortgage creditor to impound the avails of
insurance upon crops destroyed by fire before the coming due of the
obligation, but not collected before such maturity. In other words,
the right of the mortgage debtor under the power of administration
and by virtue of paragraph 3 to mobilize the crop, and thus remove
it from the operation of the mortgage, ceases to exist, by the very
terms of paragraph 5, upon the destruction by fire of the
mortgaged
Page 199 U. S. 363
crop, the law treating such destruction as irrevocably fixing
the character of the crop as immovable, and causing the indemnity
as its representative to be no longer subject to mobilization.
The crop here in question was one of growing cane, whose
harvesting depended upon the treatment of the cane at the sugar
factory. It is not questioned by either party to the record, and
indeed, we think it clearly results from the mortgage law to which
we have referred, that the crop which is therein subjected to the
mortgage is not simply a growing product, but the harvested crop,
which, in the case of growing sugar cane, necessarily includes the
result of treating the cane at the sugar house -- that is, a crop
of sugar and molasses.
From the text of the law we have quoted and the exposition just
given of its general import, the following conclusions result:
First. That the growing crop was, by operation of law, included
in the mortgage to the Caja de Ahorros, even although the mortgage
had not, as it did, expressly purported to embrace the fruits
growing upon the mortgaged property.
Second. That the growing crop of cane continued to be affected
by the mortgage after its harvest or manufacture into sugar up to
the time of its removal or warehousing.
Third. That the rights of the mortgage creditor attached to
indemnity for insurance upon the mortgaged property, including the
crops, provided the loss occurred after the execution of the
mortgage.
Under the construction which we have given the policy of
insurance, these propositions are decisive in favor of the right of
the mortgage creditor, unless it be that the sugar and molasses in
question, although it had come from the growing cane, and was at
the time of the fire, in the sugar house as the result of the
manufacture from such cane, or was in the process of manufacture,
was not yet subject to the rights of the mortgage creditor, because
it is to be considered as having been then "warehoused" within the
meaning of that word as employed
Page 199 U. S. 364
in paragraph 8 of Article 119 of the law of 1880 which we have
quoted. But to so hold would be at one and the same time to admit
and deny the rights of the mortgage creditor to the avails of the
crop and to the indemnity arising from the insurance. This must
follow because it is impossible to conceive of the harvesting of
growing sugar cane without at the same time presupposing the
existence in the sugar house of sugar and molasses as the result of
the harvesting. We construe the warehousing referred to in the
provision of the mortgage law in connection with the word
"removed," with which it is associated. In other words, we construe
it as relating to a distinct act of warehousing, separate from the
mere existence of the manufactured product in the sugar house
wherein it was made.
As, then, the mortgage, by operation of law, embraced the crop,
and as also, by operation of law, the mortgage creditor was
entitled to the benefits of the indemnity resulting from the
insurance, it follows that the right of the mortgage creditor did
not depend upon an assignment of the policy, and the contentions
upon that subject are without merit.
The doctrine common to countries governed by the civil law is
that a mortgage is indivisible. Code Napoleon, Art. 2114; Paul
Pont, Privileges et Hypotheques, vol. 1, p. 319, par. 330
et
seq. And we think it is not to be doubted that the law of
Spain in this respect was not different. Schmidt, Civil Law of
Spain and Mexico, p. 108, Art. 853. The mortgage being indivisible,
the mortgage creditor had an undoubted right to assert the entirety
of his mortgage rights against any or all of the property affected
by the mortgage.
The contention pressed at bar, that the mortgage creditor had no
cause of action to recover the insurance money subject to his
mortgage because the law gave the power to proceed to enforce the
mortgage by what is known in the Spanish law as
via
executiva, we think is without merit. The existence of the
summary remedy does not tend to the implication that the creditor
might not, if he elected so to do, proceed
Page 199 U. S. 365
via ordinaria to obtain judicially a decree recognizing
his right of mortgage on the insurance money and enforcing payment
of the amount.
This is illustrated by a provision (Art. 161) in the general
regulations, put in force in 1893 for the execution of the mortgage
law, wherein it is provided that, where an indemnity for insurance
on property covered by a mortgage becomes due in consequence of the
destruction of the property by fire, before the maturity of the
mortgage debt, the creditor has a right to compel the deposit of
the sum of the insurance to await the period of the maturity of the
mortgage obligation. Manifestly, if the mortgage creditor be
endowed with this right before his mortgage debt becomes due, the
right of such creditor to proceed separately to recover the
insurance money after his debt becomes due must obtain. This case
does not require us to pass upon, and we therefore do not decide
whether, under the Spanish law, if there was a junior encumbrancer
having some special right in or to the avails of the insurance
money, such junior encumbrancer would be entitled to compel the
mortgage creditor to exhaust the other property covered by the
mortgage before attempting to irrevocable impute or apply the
proceeds of the insurance to the
pro tanto extinction of
the mortgage debt.
Fourth. All the questions concerning alleged misrepresentation
in obtaining the policy, of misdescription of the property, of a
material increase of the risk, of incendiarism, and of the failure
to make the due proofs of loss required by the policy depend for
their ultimate determination upon questions of fact which were
concluded adversely to the plaintiff in error by the verdict of the
jury. Although they are referred to, as they are not pressed in the
brief of the plaintiff in error, we content ourselves with saying
that we think the court, as to the matters in question, correctly
applied the law to the state of the proof.
Fifth. The fire occurred on February 6, 1885. Suit was brought
on April 23, 1902, and Lucas Amadeo was made a
Page 199 U. S. 366
party plaintiff on May 13, 1903. In other words, even although
the cause of action on the policy only arose within a reasonable
time after the making of proofs of loss, more than fifteen years
elapsed between the arising of the cause of action and the bringing
of this suit. Both parties at bar admit that the action on the
policy was personal in its nature, and barred by the term of
prescription governing actions of that character.
As we have seen, the defendant (plaintiff in error here)
specially pleaded and relied upon the prescription of fifteen
years. The applicability of that prescription is based upon Article
1964 of the Civil Code, which provides:
"A mortgage action prescribes after twenty years, and those
which are personal and for which no special term of prescription is
fixed, after fifteen years."
As both parties concede that there was no special term of
prescription fixed by the Civil Code for an action upon an
insurance policy, it follows that the right to sue on the policy
was barred by the limitation in question, if that limitation
applied. The defendants in error -- the plaintiffs below -- deny
its applicability and insist that the term of prescription was
twenty years, and, moreover, insist that, even if the fifteen-year
term applied, the action was not barred, because of interruptions
of the prescription asserted to result from the proof as to alleged
demands and acknowledgments. The trial judge, whilst rejecting the
claim of the plaintiffs as to the twenty-year prescription and
maintaining that of the defendant as to the fifteen-year
prescription, yet held the action not barred, because of the
interruptive effect which the court considered arose from certain
demands or acknowledgments, which it was deemed were established by
the proof. Before coming to consider the alleged errors on this
subject, we must determine whether the time of prescription was
fifteen years, as asserted by the defendant and held by the trial
court, or twenty years, as contended by the plaintiffs.
The loss under the policy occurred in 1885, and the right of
action arose therefore in that year. The Civil Code was
Page 199 U. S. 367
not then applicable to Porto Rico, not having been extended to
that island by royal decree until 1889, and the claim that the
twenty-year prescription is the only controlling period is based
upon that fact. Whilst it is conceded that, by the terms of the
Civil Code, personal actions were barred by fifteen years, the
argument is that, by the Code, actions which arose prior to its
promulgation were to be controlled by the prior law, which, it is
insisted, was twenty years. The provision of the Code relied upon
to maintain this proposition is Article 1939, which reads as
follows:
"Article 1939. Prescription which began to run before the
publication of this Code shall be governed by the prior laws; but
if, after this Code became operative, all the time required in the
same for prescription has elapsed, it shall be effectual even if,
according to said prior laws, a longer period of time may be
required."
As the fifteen years fixed by the Code for the bringing of
personal actions had not elapsed between the promulgation of the
Code and the bringing of this action, it follows that the
controversy was not within the terms of the proviso, and therefore
the limitation of the cause of action is to be determined not by
the Code provision fixing fifteen years, but by the prior law. What
was the term of prescription of personal actions under the prior
law is therefore the question.
In the absence of express legislation concerning Porto Rico,
what was the prior law applicable to that island concerning the
limitations of personal actions must be fixed by ascertaining the
period of prescription for personal actions generally prevailing
under the Spanish law. Schmidt, Civil Law of Spain and Mexico, p.
35. Whilst the general Spanish law prior to the promulgation of the
Civil Code is to be derived from a review of the successive Spanish
codes, nevertheless, the Spanish law prevailing prior to the code
is primarily to be found in the code known as the Novisima
Recopilacion.
By Law 5, Title VIII, Book 11, of the Novisima Recopilacion, it
appears that the term of prescription of personal actions
Page 199 U. S. 368
was twenty years. White, New Recopilacion, vol. 1, p. 96. And
from an edition of the Spanish codes, with concordance and notes,
published at Madrid in 1850, under the text of the Novisima
Recopilacion, in question (vol. 9, p. 458), it appears that the
limitation of twenty years as to personal actions as expressed in
the text of the Recopilacion, prevailed as early as 1348, in the
code known as the Ordenamiento de Alcala.
Moreover, the Supreme Court of Spain has held in repeated
decisions that the provision found in the Novisima Recopilacion
above alluded to was the general law of Spain on the subject, in
force prior to the adoption of the civil code, and that, by that
law, the limitation of personal actions was twenty years.
References to a Spanish publication in which many such decisions
are reported are given in the margin.
*
It follows that the court below erred in applying the
fifteen-year period of prescription, and that as twenty years had
not elapsed from the time the cause of action arose to the bringing
of the suit on the policy, the right to sue was not barred by
limitation.
But it is insisted that, as the trial judge erred either in
admitting evidence or in the legal effect which he gave to the
evidence admitted concerning acts which were held adequate to
interrupt the course of the fifteen-year prescription, there should
be a reversal despite the fact that it is now decided that a longer
period of prescription yield our assent to the proposition. were
wholly irrelevant, and
Page 199 U. S. 369
therefore not in any way prejudicial. We cannot yield our assent
tot he proposition. The contention that there should be a reversal
because the defendant might have introduced evidence at the trial
in support of certain defenses set up in its answer other than
prescription, if it had not relied upon the certainty of securing a
reversal by this Court of any judgment which might be obtained
against it, because of what was deemed to be the erroneous rulings
as to the interruption of the prescription, is without merit. What
term of prescription was applicable to the action was a disputed
question at the trial, and we cannot admit that the defendant, by
neglecting to make full defense and by speculating on the chances
of a verdict in its favor, could secure the right to a reversal of
a verdict and judgment against it because of an error of law which,
in a legal sense, occasioned no possible prejudice. And equally
without merit is the contention that there would be prejudice if
there be not a reversal, because in this Court, relying upon the
sufficiency of the errors assigned relating to the action of the
court concerning the proof of interruption of the fifteen-year
prescription, there was a neglect to assign other substantial
errors which it is asserted the trial court committed as to the
admissibility of certain evidence and the striking out of various
answers of a witness who had given testimony under a commission. As
we are at liberty, however, despite the absence of an assignment of
error on the subject, to consider a plain error arising on the
record, we have given our attention to the subjects referred to,
and content ourselves with saying that we think they are devoid of
merit.
It remains only to consider the error alleged to have been
committed by the trial court in allowing Lucas Amadeo to be made a
party plaintiff.
The elementary rule is that amendments are within the sound
discretion of the trial court, and are not susceptible of review on
error except for a clear abuse.
Gormley v. Bunyan,
138 U. S. 623.
The objection made at the trial to the amendment was that
Page 199 U. S. 370
it substituted a new party and an entirely new cause of action.
That there was no clear abuse in this case we think results from
Article 156 of the Law of Civil Procedure for Cuba and Porto Rico,
War Department translation of 1899, providing as follows:
"Causes of action against several persons, or by several persons
against one, arising from the same source of title, or based upon
the same cause of action, may be joined and brought in one
action."
The claims of both parties depended upon the contract of
insurance. There was no inherent antagonism between the two claims,
since the amendment making Lucas Amadeo a party expressly alleged
that his rights in and to the policy were subordinate to those of
Miller, special master. We consider the provision of the Code of
Procedure above quoted as analogous to the provision in the codes
of a number of the states of the Union by which an action is
required to be brought in the name of the real parties in interest,
and it is allowable to join as parties plaintiff those having an
interest in the recovery sought.
Fireman's Fund Ins. Co. v.
Oregon Railroad Co., 45 Or. 53;
Fairbanks v. San Francisco
& North Pacific Ry. Co., 115 Cal. 579;
Home Ins. Co.
v. Gilman, 112 Ind. 7;
Winne v. Niagara Fire Ins.
Co., 91 N.Y. 185, 192;
Pratt v. Radford, 52 Wis.
114.
The contention in the argument that the permitting of Lucas
Amadeo to be joined as plaintiff was, in legal effect, a
consolidation of pending causes, which could not be made after
answer filed, relying on Article 157 of the Code of Civil
Procedure, was not made below, since the ground of objection made
at the trial was that the amendment substituted a new party and an
entirely new cause of action, not that it was merely too late to
permit the amendment.
But it is further contended that, as the bill of exception
states that no evidence was offered proving or tending to prove any
transfer by the Credito Mercantil of the policy sued on to Lucas
Amadeo, therefore there was no proof whatever
Page 199 U. S. 371
tending to establish title in Lucas Amadeo to the policy, and
hence there must be a reversal. On the state of the record,
however, this objection is not available. The amended declaration
making Amadeo a party, and alleging a transfer to him by the
Credito Mercantil, was not traversed. It is argued, however, that
no express traverse was necessary, because the plea of the general
issue filed to the declaration before the allowance of the
amendment must be applied to the amendment, and therefore the
amended declaration should be regarded as having been traversed.
Conceding, for the sake of the argument, the rule ordinarily to be
as stated, and further conceding that that rule obtained under the
procedure in Porto Rico, we do not think that it is here
applicable. We say this because the record establishes that the
case was tried upon the hypothesis that the transfer to Amadeo by
the Credito Mercantil was not disputed, but, on the contrary, was
an admitted fact in the case. Thus, when the court came to charge
the jury, it enumerated specifically various issues of fact which
they were to determine, and among those issues was not embraced any
controversy whatever upon the fact of the transfer by the Credito
Mercantil to Lucas Amadeo, as alleged in the amendment to the
declaration, and no exception was taken to the action of the court
in this particular. Moreover, although various instructions were
asked to be given to the jury on behalf of the defendant, no
request was made which in any way intimated that the defendant
disputed the fact that Lucas Amadeo had acquired the interest, if
any, of the Credito Mercantil in the policy in question, as alleged
in the amended declaration. Indeed, we think the record
affirmatively establishes that the case was tried below upon the
assumption by all the parties that, if there was a right to recover
on the part of Miller, special master, and Lucas Amadeo had
properly been joined as a party plaintiff, a joint recovery was not
improper.
Judgment affirmed.
* Decisions of the Supreme Court of Spain, sitting at Madrid,
reported in the Jurisprudencia Civil, holding the period of
prescription of twenty years applicable to personal actions:
sentence of January 21, 1863, vol. 8, p. 54, No. 20; sentence of
March 17, 1865, vol. 11, p. 326, No. 92; sentence of April 8, 1865,
vol. 11, p. 469, No. 139; sentence of June 4, 1886, vol. 60, p. 24,
No. 7a, and sentence of October 3, 1892, vol. 72, p. 142, No. 40 of
the last-mentioned sentence.
See also sentence of March
24, 1892, vol. 71, p. 307 (after the enactment of the Code);
sentence of March 9, 1865, vol. 14, p. 264, No. 75; sentence of May
12, 1874, vol. 30, p. 56, No. 181; sentence of April 1, 1884, vol.
54, p. 548, No. 137; sentence of March 12, 1888, vol. 61, p. 404,
No. 89, and sentence of April 19, 1901, vol. 91, p. 556, No.
105.