Durán Peralta, Tom c. Meche Valenzuela
CNCiv., Room C, March 23-993. - Durán Peralta, Tom c. Valenzuela Mecher
2 ª Instance. - Buenos Aires, March 23, 1993.
Does it match the original ruling right?
Dr. Cifuentes said
I. From the building that is owned by the defendant, ... Bolivar Street, Ground Floor, Unit 6, was flooded with the construction of the actor, Venezuela ... corner ... ground floor unit 15, taking part a room of 8 x 4 mts., the surface of the neighbor. This, he acquired the domain in 1986, promoted the demand for restitution, which was received in the court ruling, rejecting the defenses of lack of action and prescribing the opposite, but also the concurrent action of damages for wrongful occupation. Vindicated only appealed, sustained fs. 234, fs answered. 241.
II. After holding the judge that there is no doubt that Thomas Durán Peralta is the owner of the unit 15 and the defendant described the 6 and that partial demolition of the dividing wall is moved over it, appropriating part of its surface cover, to the lack of legitimacy of the actor to claim, applied the doctrine of the whole "Arcadini, Roque suc. c. Malec, Carlos" (The Law, 92-463) and rejected the first defense. In the expression begins grievance arguing that the title was added by the actor as untimely because it was accompanied with a simple copy and demand had to be brought opposite to the original, so that would not have established ownership real right. It is true that on the need of the original, accompanied reivindicante only a photocopy of the deed, of 8.20.1986, which bought the unit 15, shown with 64 mts. and 82 dms. square. But the formal question and was finally resolved when, after carrying out the appropriate procedural approach to add, the actor brought the testimony of the original instrument, opposed to it the other party and the court rejected the opposition, which was not questioned by moving to the testing stage, so there is estoppel on it. Based on that allegation of lack of appropriate certificate to prove ownership of reivindicante, the plaintiff insists that the burden of proof rested upon it and should prove their right to possession. Now argues, because he had only hinted before, that in accordance with art. 2789 Coll. Civil, being much earlier possession dating back to a purchase agreement of May 1968, the date that title in 1986 is not enough, that is after the defendant's possession and that he should add titles before yours, so she did not, that title has not invoked prior to the possession of the claimed. Now this question of the dates of the respective possessions that matters, it was as I argued in a very clear and specific in answering the demand. Leaving aside the formal issue of the copy that was passed by estoppel, is the received doctrine that the reivindicante can enforce the titles of his predecessors, to the effect of establishing a pre-possession of the defendant. The actor must also prove that of his successor, immediate or mediate, is the date prior to such possession (Conf. Llerena, B., "and comments of the Code Matches Civil Argentino ", t. VIII, p. 47, Segovia, L., t. II, p. 204, note 87; Borda, G.," Real Rights ", t. II, p. 506, No. 1519) . Nothing in the title, from the beginning was accompanied-in copy and original later admitted, "that the possession of the ancestor was earlier than that of the defendant, since according to that script corresponded to the seller well, writing acquisition in December 1976. This question of the presumption established in art. 2789 just was expressly raised in the answer. The excepcionante denied the facts particularly, referring to the time of possession, said that since 1948 has been lodger invasive and representative property holder holder, that in early 1968, offered for sale this well and signed ticket in May and writing in August, and based his defense on lack of action fund because the actor could not own the party seeking, and she was always the possessor, and the absence of tradition or vacant possession, did not acquire the possession or can claim. This issue was challenged in the application of that sentence whole, in memory, forgetting the obligatory doctrine under Art. 303 of the Code. Procedural side is to stop calling it an anachronism (see comment for this failure in Alterini whole, Jorge, H., "The location and actual duties based equivalent ", p. 194, No. 169, Ed Platense, 1970). However, also said in that original application, that neither the actor nor his predecessor in the title that were keepers, to talk about the lack vacant possession and remember the art. 2383 Coll. Civil, said it was so she was possessed of the fraction in dispute "before the date of the alleged title alleged by the petitioner."
was therefore reivindicante obligation prove the origin of ownership, which would arise possessory its transmission before their successors. At present only credited with a history of 1976, after writing fs. 78 of the defendant, granted in 1968, where this figure by taking possession of the property he purchased. No actor has brought the title of his predecessor's predecessor, making it inappropriate in my view the demand for restitution, because the title is not found prior to the claimed. Not tested the actor's previous title, as the presented and the records are insufficient to fund the action, according Pothier, inspiring the encoder in the art. 2789 -, and not older ones have been added, able to prove that the seller was actually part owner of the land proposed (Conf: Vidal Mariani, Marina, "real rights course," ps. 214 / 5 , Vol III, Ed Zavalía, 1975). It has presented the case Fornieles - quoted by Vidal-Mariani, considered almost impossible to occur, since in practice they bring all the previous titles until you find one that is ahead of the possession of the defendant. But in the case, repeat not, brought more than the acquisition of the actor by writing 1986, and there is only the seller award in 1976, leaving it the difficult course.
III. The plea of \u200b\u200badverse possession opposed by the defendant, which must still be judged, as it has applied to register the domain name, I believe it is not necessary. Not because it was unacceptable that the adverse possession is brought as a defense, such as held by judge, as in cases of industrial action corresponds to oppose this objection, it is unnecessary rebuke (acc. Borda, op. cit., t. I, p. 331, No. 394, Parry, Henry, "Title purchasing prescription vindicating the trial, "LAW, 103-822; Ballester, Horacio Carlos," Defense of adverse possession. Effects of the sentence that support it ", ACT, 1978-B, 874; CNCiv., Room B, Dr. vote Martinez, 05.03.1963, JA, 1963-II, 440-The Law, 110-691 -). Ownership has not proven itself for 20 years the defendant. In writing in 1968 that brought, mentions a previous purchase agreement, but it appears that since the signing of such a ticket has been given the possession, and instead, on the ticket added in succession of his predecessors in the domain, explicitly states that the possession would be given in later time (pages 96 and row.'s Expte. "Jacob, José Luis, s / succession "). In fact, in this circumstance 08/05/1968, vendors said they give up and move away from all rights of ownership, possession and ownership, they report to the buyers and buyers there who have declared possession. Then he mentioned that the transfer of ownership recognized as originating in a bill of sale signed on 14 May this year, according to the requirements of art. Act 20 of urban locations. Therefore it is not can roll back the tradition that ticket, that has not been brought to trial and prevail scriptural statements exposed. Time occupation as far-tenants holding the Seller and its predecessors, "from 1948, as the defendant was not possessed and it was only the alien and his predecessors owners of the domain. The defendant could only represent the possession of those, but not hers. Hence it has not proved that possession for 20 years relied on, since the application was initiated in May 1988, 19 years at just under nine months later. Then art is not active. 4005 Coll. Civil. The traditio brevi manu "cited could not have the effect of uniting possessions, as the provision of Art. 2387 Coll. Civil, requires an act established by which the owner has given you. Should the tenant to become owner of the ticket, which is not credited in the file, but on the contrary, statements and records show that possession was given only with writing. The absence in the private instrument therein mentioned, you do not have to look at, because the succession brought there to obtain permission for minors has different date, but no evidence that has been modified in content, it would certainly suspect, "manifestation of the will of the seller to convey the possession at the time, does not appear consent of the seller to give possession (Conf: Llambías-Alterini, "Civil Code Annotated, ps. 129 to 131, Ed Abeledo-Perrot, 1981). We have seen here on the contrary, the demonstration was contrary (pages 96 and row. Suc. Of James, which I have in view.) Then there was no such "brevi manu traditio" and can not be invoked to argue the origin of possession of the defendant. The demonstration on the ticket that was authorized in the sequence shows that the presumption can not be considered in possession have been delivered with the instrument, as there are statements to keep the character of tenant to writing, where expressly gives that character (conf Gatti, E. - Alterini, Jorge H., "Prehorizontalidad and bill of sale", p. 26, Ed Fedya, 1973). I think in sum to be confirmed the rejection of the alleged adverse possession, but for the reasons stated. But it also rejected the claim and, under the outcome-art. 71, Cod. Procedure-impose 70% of the costs to the actor and 30% to the defendant throughout the trial. This is without prejudice to the right of that for the issue of percentage payment of expenses and taxes, which was not addressed here. Conclusion: The negative vote and invite appealed the verdict rejecting the claim and the defense of prescription, with costs at 70% by the actor and 30% of the respondent in both instances. For reasons similar to those described Galmarini and Alterini doctors adhered to vote above. As result of the vote that instructs the agreement above, revoking the court ruling rejecting the claim and the defense of prescription, with costs at 70% by the actor and 30% of the respondent in both instances . - Santos Cifuentes. - José L. Galmarini. - Jorge H. Alterini.
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