$3,000.

"Sec. 664b. Succession also means the

of $12,000.

"Note dated October 1, 1919, for the sum

of $7,500.

of $1,200.

"That the note herein referred to, dated September 8, 1919, for the sum of $11,700, was subsequently reduced by payment on account thereof to the sum of $6,500. That at the date of the death of the said Mercedes Cobian Romeu the defendant Gabriel Guerra Mondragon y Acosta and his wife Mercedes Cobian y Romeu were indebted to the plaintiff on account of the notes hereinbefore referred to in the sum of $30,200, no part of which has ever been paid, except the sum of $500, and that the said defendant Gabriel Guerra Mondragon y Acosta and the estate of his deceased wife Mercedes Cobian y Romeu are now indebted to the plaintiff on account of the notes hereinabove referred to in the sum of $29,700, with interest thereon at the rate of 8 per cent. per annum from the 31st day of January, 1921, to the date of this complaint."

The complaint also covers the two notes of $6,000 and $9,000, grounding liability therefor on the above-described instrument of November 26, 1917. This makes a total of $44,700, for which, with interest at 8 per cent. from January 31, 1921, judgment was sought. It is then alleged that subsequent to the death of Mrs. Guerra, by order of the district court of San Juan, the minor defendants were declared her heirs, and by deed the minors, acting by their judicial defensor (guardian ad litem), purported to make a division of the properties, under which the heirs received $32,239.31 as their mother's share in the profits of the conjugal partnership, and also $37,330 as the capital furnished by their mother at the time of her marriage, a total of $69,569.31; that at the time of this partition deed Gabriel had title in his own name to each of the said properties, and none were recorded as the separate property of his wife.

The underlying theory of this suit is that the minors had title to property applicable to

the condition in which they existed at the time of his death, but it also includes the property belonging to such succession after the same is opened, and the charges and obligations inherent therein.

"Sec. 664d. Succession also signifies the right by virtue of which an heir may take possession of the property of the deceased in accordance with law.

"Sec. 665. The rights to the succession of a person are transmitted from the moment of his death.”

But minors may accept inheritances (Civ. Code, § 959) only by duly authorized tutor (guardian), under Civ. Code, § 282, par. 10. If there was no enforceable debt, the case ends; it becomes unnecessary to determine any question as to the title of the defendants.

So far as appears, nothing was done with this new suit for more than two years. On August 24, 1925, an amended complaint was filed. On June 28, 1926, an amended answer was filed to this amended complaint. The case came to trial on June 28, 1926, and a verdict was ordered and returned for the defendants, on grounds stated below.

On No

Reverting to No. 1871-on the filing of the bill of intervention on July 11, 1923, a restraining order was issued, enjoining the marshal from selling the property in question until further order of the court. vember 26, 1923, the bank filed motions to dismiss and to dissolve the restraining order. These were finally disposed of about a year later, on November 29, 1924, by an order that the bank should answer the intervening petition and the matter stand for hearing. On December 6, 1924, the bank filed an answer, admitting substantially all the allegations of fact, but setting up that the deed to the interveners of No. 20 Tetuan street was void for lack of "a liquidation of the conjugal partnership between Gabriel and his deceased wife, Mercedes," and because "no provision has been made for payment of the debts of

the allegations in the answer relative to the alleged basis of the $44,500 note. This motion was denied, and the matter was heard on

"A note for $30,200, dated January 9, 1920, signed by Gabriel Guerra, on which $500 was paid January 13, 1920, reducing it to $29,700.

"A note for $1,308.95, dated February 16, 1920, signed by Gabriel Guerra.

"A note for $4,500, dated March 29, 1920, signed by A. S. Belaval and Eduardo Acuna. "A note for $4,500, dated March 29, 1920, signed by A. S. Belaval and R. Alvarez Tor

res.

"A note for $1,533.75, dated May 22, 1919, signed by A. S. Belaval and Specialty Shop for Automobiles, Inc. And the past due and unpaid interest on said notes.

"That the note for $30,200, dated January 9, 1920, herein above referred to was a renewal of the following notes, each signed by Gabriel Guerra y Acosta, and each drawn to the order of the plaintiff, to wit:

"Note dated October 29, 1919, for $1,200. "Note dated July 18, 1919, for $12,000. "Note dated July 17, 1919, for $3,000. "Note dated October 1, 1919, for $7,500. "Note dated September 8, 1919, for $11,700, on account of which note the sum of $5,200 had been paid, and on which there remained due and unpaid the sum of $6,500.

"Further answering said paragraph 7, it alleges that at the death of Dona Mercedes Cobian y Romeu the defendant Gabriel Guerra owed the plaintiff the sum of $30,200 on account of the notes hereinbefore referred to, plus the sums of $6,000, $9,000, and $1,100, respectively, covered by the first, second, and third causes of action in the complaint, no part of which has been paid, except the sum of $500 paid January 13, 1920, as heretofore set forth."

The bank's claims, thus sought to be enforced against the minor heirs by this answer, were precisely the same as those set up in its pending lawsuit, except that by this answer it asserted liability on the collateral note of $1,100 dated May 7, 1919. Why this note, if not paid, was not included in the lawsuit nowhere appears. It thus asserted and now asserts the right to pursue these children, at law and in equity, at the same time, for substantially the same thing.

Counsel for the children adhered to his theory (that the intervening petition involved nothing but the right of the bank to satisfy a judgment against the father out of property of the children) by moving to strike out

below (Odlin, J.) held that the notes outstanding when Mrs. Guerra died had not been extinguished by payment, novation, judgment against Guerra, or otherwise, and reached the conclusion that the sale under the outstanding execution against Gabriel Guerra should proceed, with the proviso that any surplus above $45,800 be paid to the interveners. This amounts to ruling that a judgment and execution, based (in major part) of record on the note of $44,500, was, in law and in fact, based on earlier notes, dated in 1919, stamped "paid," and returned to the Specialty Shop months before the note sued upon was given. How this result of $44,800 was computed is not clear. It is clear that the judge overlooked the fact that the bank had already collected on execution $4,469.05. But in the view we take of the controlling issues, that and other possible errors in computation become immaterial.

From the order dissolving the injunction, and holding their inheritance from their mother liable for $44,800, the children appealed to this court. Their contentions on this appeal are that the bank has obtained no judgment or other enforceable process against them or their inheritance from their mother's estate; that the proceedings under the intervention petition should have been limited to enjoining satisfaction of the judgment against Gabriel Guerra out of property belonging, at least prima facie, to the minor heirs of the deceased member of the conjugal partnership. Capo v. Fernandez, 27 Porto Rico, 656; Garcian v. Registrar of Guayama, 27 Porto Rico, 575. Otherwise stated, that the bank's appropriate remedy to subject any assets of the conjugal partnership to payment of any enforceable debts of the partnership was under its pending suit at law. Apparently the bank also had a remedy under R. S. §§ 1562, 1599 et seq.

[2-4] We think these contentions of the appellants must be sustained. The proceedings under the intervening petition and its answer should have been limited to determining the facts alleged (in effect undisputed), that the interveners had, by an extrajudicial settlement of their mother's estate, a title to the property sought to be subjected to the payment of the personal judgment against their father. By invoking equity to prevent the misappropriation of their property on an execution running against one (legally) a stranger to them, the interveners did not

merce.

As stated above, the trial resulted in a directed verdict for the defendants, the court holding (Wells, J.) the defenses of novation and prescription (the statute of limitations) both made out on the bank's own testimony and the documents. The bank brought the case here on a writ of error. We find it necessary to deal with but two questions:

(1) Was there liability of Mrs. Guerra's heirs or succession under the guaranty of November 26, 1917, on the demand notes of $6,000 and $9,000 signed by the Specialty Shop?

(2) Were the notes declared upon, dated in 1919, before Mrs. Guerra's death, outstanding and enforceable when this suit was brought on July 23, 1923? Otherwise stated, was there novation or payment by the new notes, given after Mrs. Guerra's death? [5] (1) As noted above, it is alleged and proved that these two notes of $6,000 and $9,000, signed by the Specialty Shop only, were renewed by the Specialty Shop from time to time, and interest paid thereon up to January 31, 1921.

We think it plain that, when this suit was filed, there was no liability of the conjugal partnership under this instrument. Construing the instrument as a whole, and in the light of the conduct of the parties and of the pertinent evidence (28 C. J. 93, 934), the agreement is plainly a guaranty by Guerra of a credit extended by the bank to the Specialty Shop. The parties obviously contemplated that the Specialty Shop should be, as it was, managed by Belaval and others than Guerra; Guerra being absent from time to time (and apparently much of the time) in the United States. In their testimony, the bank officials referred to this instrument as a "guaranty."

[6] The bank's contention that its acts, in extending beyond the two-year period, on the Specialty Shop's request, the demand notes taken by it, did not affect Guerra's liability, is grounded on the provision in the second paragraph of the instrument (quoted above), to the effect that signature by the Specialty Shop only should constitute the Specialty Shop and Guerra joint debtors. But, properly analyzed, this is but a provision for business and procedural convenience; it obviated the necessity of getting Guerra's signature on the notes, and undoubtedly authorized suit against him as a joint debtor, on any obligations of the Specialty Shop, given and accepted within the terms of the guaranty. But it did not change the essential

limited joint contract by Guerra and the Specialty Shop. It left unaffected the vital provision-to the effect that the term of the contemplated notes shall not exceed the period of two years from November 23, 1917, "which date is fixed for the final liquidation of the credit."

No effect whatever would be given to this plain and fundamental provision if we adopted the contention of the bank, that this instrument authorized it to advance the full amount of $15,000 to the Specialty Shop on demand notes, signed by the Specialty Shop only, and then to permit the Specialty Shop to renew such notes from time to time and pay the interest thereon up to January 31, 1921 (more than three years) all without notice to Guerra, and without obtaining any agreement for extension of the guaranty, as expressly provided for in the instrument. [7,8] It is familiar and elementary law that guaranties cannot be extended beyond the plain import of the terms thereof without the express assent of the guarantor and that such instruments are to be given a fairly strict construction. 28 C. J. p. 9351; Lascelles v. Clark, 204 Mass. 362, 373, 90 N. E. 875.

In our view, without resorting to the rule of strict construction, we think that there was no liability of the conjugal partnership under this instrument when these suits were brought. Civil Code, § 1752, provides:

"The extension granted to the debtor by the creditor, without the consent of the surety, extinguishes the security." [9] (2) Coming now to the transaction of the $44,500 note of July 20, 1920, it is clear, on the documents and on the bank's own evidence, that this note was given and taken as a payment or novation of the earlier notes sued upon.

Some of the old notes covered by this new note were time notes, of which some or all had had one or more extensions; at least one old note carried interest at 9 per cent., while the new note was at 8 per cent.; some of them were notes with collateral; some of them were notes authorizing the holder to appear in any court of Porto Rico and confess judgment, as did the new note of $44,500; one was a joint and several note of Belaval and Torres, running to the bank; another was a like note of the same promisors, running to the Specialty Shop, and indorsed in blank by the Shop; all of them were given up and stamped by the bank as paid. Corresponding entries were made in the bank's books. The new note for $44,500, of course, was a negotiable instrument

"Civil Code, § 1172. In order that an obligation may be extinguished by another which substitutes it, it is necessary that it should be so expressly declared, or that the old and new be incompatible in all points.

"Sec. 1173. Novation, consisting in the substitution of a debtor in the place of the original one, may be made without the knowledge of the latter, but not without the consent of the creditor."

Under these provisions, the knowledge and assent of the original debtor is not required. Compare 29 Cyc. pp. 1130, 1132; Stowell v. Gram, 184 Mass. 562, 563, 69 N. E. 342. The new obligation was entirely incompatible with the old obligations, and was so treated by the parties. Manrique v. Mangual, 28 Porto Rico, 35, 38; 3 Williston, Contracts, 88 1865-1875; In re Ransford (C. C. A.) 194 F. 658, 662.

The result is the same, whether the extinguishment of the old obligations by the $44,500 note be called a novation, a merger or payment. 3 Williston, Contracts, §§ 1918, 1920 a, et seq. The essence is that the old obligations were thereby ended, and all the rights of the bank were included in the new note, which, in turn, was merged into the judgment against Guerra and the Specialty Shop; on this judgment, execution issued, and was partially satisfied, and proceedings begun to enforce payment of the balance. Yet, on the plaintiff's theory, it may still resort to all the original parties liable. Guerra, Torres, Belaval, Acuna, the Specialty Shop, and the succession or heirs of Mrs. Guerra, obtaining a new judgment against each, in accordance with the original alleged obligation of each. It is difficult to imagine a theory more productive of business chaos and of confusion of legal rights and remedies. We cannot adopt it.

While not necessary to the conclusions we have reached, we note that the evidence of the transactions between the bank and the

"We advanced them money against cars, automobile tires, and as a car was sold they were supposed to give us back the amount we advanced against that particular automobile. The same way with tires. Now, when the question came of paying the money to pay of another obligation, we applied simply any amount of money that we could succeed · in getting out of it, which amount of money was applied as suggested by the Specialty Shop."

This course of business furnishes a partial explanation of the confusion and inconsistencies in the pleadings and in the evidence. But, while we do not put our decision on that ground, it is at least doubtful whether the bank proved any such amount of indebtedness accruing prior to Mrs. Guerra's death as it claimed in its pleadings, and as, in No. 1871, was found by the court below.

The final paragraph in the brief in No. 2112 of the bank's able and learned counsel is a further illustration of the conflict and confusion in these records:

"It is submitted that a proper determination of these cases, No. 1871 and No. 2112, would be to affirm the decree in No. 1871, modified, so as to provide that out of the community property now registered in the names of the defendants by title of intestate inheritance the plaintiff be allowed to collect up to the amount of $35,275.64, with interest on $24,700 thereof from October 21, 1920, and with interest on $10,575.64 thereof from January 31, 1921, and that the judgment in No. 2112 be reversed, and a new trial directed in accordance with the principles of law laid down by the decision of this court in No. 1871. The effect of this will be that there will never be a new trial in No. 2112, as it will be rendered unnecessary.”

In No. 2112, the judgment of the District Court is affirmed, with costs to the defendants in error.

In No. 1871, the decree of the District Court is reversed, and it is decreed that the