Porto Rico that an instrument, though an absolute conveyance on its face, may not be shown as only intended for security? any or all of said liabilities to said company, or its assigns, as its president or treasurer or assigns shall deem proper, returning the overplus to the undersigned; and upon any sale at public auction or at brokers' board the holder thereof may purchase the whole or any part of such securities, discharged from any right of redemption. And the undersigned agrees to be and remain liable to the holder hereof for any deficiency. The company is hereby given a lien upon all moneys held by it on deposit or otherwise, to the credit of the undersigned, and is authorized at any time to appropriate all of said moneys to the payment of whatever may be due on this note, or any other obligations of the undersigned now existing or hereafter contracted, whether the same be then due or not due. A statement of some of the facts will exhibit the situation of the parties and their relations to the indebtedness. Previous to the year 1900 José Maria Suarez carried on a mercantile business in San Juan, Porto Rico. Shortly before that date he died, and two of his brothers, including his widow, Maria de las Nieves Cabrera y Pruna, one of the appellants, continued the business under a partnership, organized in the early part of 1900, under the firm name and style of Sucesores de J. M. Suarez y Compañia. Suarez had bought the store with his wife's private funds, and owed her at the time of his death 8,000 pesos, and she became a silent partner to that extent, but took no part in the management generally. The In case of depreciation in the market valpartnership, being in need of money, bor- ue of the security hereby pledged, or which rowed from appellee, on the 21st of Feb- may hereafter be pledged for this loan, a ruary, 1900, the sum of 8,000 pesos, equiva-payment is to be made on account, so that lent to $4,800 in United States currency, and the said market value shall always be at gave its promissory note to secure the sum, least per cent more than the amount unpayable in six months, at 9 per cent inter- paid of this note. In case of failure to do est. The note was in the following words: so this note shall be due and payable forthwith, anything hereinbefore expressed to the contrary notwithstanding, and the company may immediately reimburse itself by sale of the security as hereinbefore provided. (Sgd.) Maria de las Nieves de Suarez. (Sgd.) Suc. de J. M. Suarez & Co. $8,000 Pesos } Either on demand. *The note was signed by her as a [228 principal, but the bill alleges that the firm signed as principal, and that she signed as surety, and, to further secure the note, that she executed the mortgage in this suit. It is recited in the mortgage that the note was given by the firm "as direct debtors," and that she executed the mortgage as surety "for the debtors and principal guarantor of the debtors." The mortgage was recorded. San Juan, Porto Rico, February 21, 1900. Six months after date, for value received, we promise to pay to the American Colonial Bank of Porto Rico, at the office of the said company, in the city of San Juan, 8,000 pesos M. C. or 4,800 dollars U. S. cy., having deposited with said company as collateral security for payment of this or any other liability or liabilities of ours to said company, now existing, or which hereafter may be contracted, the following property, viz.: A cession of all the interests of the signers of this in the estate of Nieves Pruna y Vanrosi, and a mortgage on house on Sol street. This note can be renewed with the On the 13th of March, 1901, a bill of sale consent of the cashier of the American Co- upon which the controversy in the case 227]lonial Bank, without prejudice to the turns was executed before a notary. The security or collateral, with full power and instrument recites that it was made by the authority to said company to sell, assign, and Mercantile Society, Ltd., doing business undeliver the whole, or any part thereof, order the firm name and style of Sucesores de any substitutes therefor, or any additions J. M. Suarez y Compañia, owner of the esthereto, at any brokers' board, or at any tablishment, the bazaar "Europa," Don Manpublic or private sale, at the option of said company, or its president or treasurer, or its or their or either of their assigns, on the nonperformance of this promise, or the nonpayment at maturity of any of the other liabilities aforesaid, or at any time or times thereafter, without demand of payment, advertisement, or notice of sale, which are hereby expressly waived; and, after deducting all costs and expenses for collection, sale, and delivery, to apply the residue of the proceeds of such sale or sales, to pay uel and Ramon Suarez y Cordero, represented by its managing and active partners as parties of the first part, and Mr. Edwin L. Arnold, cashier of the American Colonial Bank of Porto Rico, party of the second part. The bill of sale further recites as fol lows: "First. The Society Sucesores de J. M. Suarez y Cia. now is debtor to the American Colonial Bank of Porto Rico in the sum of $4,800, due on the 21st of August, last, ac cording to the promissory note which they executed, and, not being able to deliver the amount thereof, have offered to make payment thereof in mercantile stocks, according to the detailed inventory which they exhibit, subscribed by the society, and which they take with them bearing my signature and seal, and to which the creditor bank has manifested its conformity. "Second. That carrying into effect the sale of the stocks set forth in the inventory exhibited, Messrs. Suarez y Cordero, in the representation by which they act, transfer all of the said effects set forth in the said inventory to the creditor bank for the sum of $4,800, leaving the same in the possession of the bank, in payment of the said amount of the promissory note above mentioned. "Third. Mr. Edwin L. Arnold accepts this deed, receives the inventory above men229]tioned, and in consequence thereof *says that he leaves in the said establishment of the sellers, the 'Bazaar Europa,' all the stock and goods which such persons have sold to him in payment for the $4,800 which they owe to the American Colonial Bank, in order that, for the account and commission of the latter, they proceed to realize from the said goods, prices not to be less than those fixed in the inventory, and they are obliged to present to the bank weekly account of sales they may make, together with the value in cash thereof, until the complete realization of the same takes place." It was signed by Ramon Suarez y Cordero, Manuel Suarez y Cordero, and Edwin L. Arnold, cashier. The district court found, as we have already said, that the bill of sale was taken as additional security, and that there was no agreement or understanding that it should be considered as full payment of the main loan or debt; that Arnold never saw the stock of goods or any part of it, nor went to the store of the firm, and that the firm retained possession of the goods. Neither of the appellants took part in the execution of the instrument, and it is found that no testimony was offered charging them or any of the members of the company with fraudulent conduct. It is also found by the district court that subsequently the firm went into bankruptcy, that the stock of goods was scheduled as part of the assets of the firm, and that the bank received no part of the assets collected by the trustee in bankruptcy, and distributed among the general creditors of the firm. The district court adjudged that the bank was entitled to foreclose its mortgage, and entered a decree accordingly. Mr. Francis H. Dexter submitted the cause for appellants: When the clauses of a contract are clear and explicit, there is no necessity to have recourse to the rules for interpretation. Decisions, Supreme Court, Madrid, April 11, June 19, 1865, March 1, 1862, March 21, 1900, October 12, 1900, January 10, 1901, April 24, 1901, July 6, 1901. It cannot be successfully contended that the acceptance by the appellant bank of the stock of goods transferred to it by its debtor was simply an additional security. On the contrary, it was, in fact and law, a substitution of the debt. 4 Derecho Civil, Sanchez Roman, pp. 428, 431. Appellee acquired no specific right or interest in the inheritance or participations of appellant Maria de las Nieves Cabrera y Pruna in the estate of her deceased mother. 3 Galindo, Legislación Hipotecaria, p. 199, p. 279. Mr. N. B. K. Pettingill submitted the cause for appellee: Any court with equity jurisdiction not only possesses the right, but must perform the duty, in a proper case, in order to ascer tain the real transaction, to go behind the recitals of an instrument of conveyance, and construe it according to its true consideration and significance. Hughes v. Edwards, 9 Wheat. 489, 6 L. ed. 142; Peugh v. Davis, 96 U. S. 332, 24 L. ed. 775; Morris v. Nixon, 1 How. 118, 11 L. ed. 69; Russell v. Southard, 12 How. 139, 147, 13 L. ed. 927, 930; Babcock v. Wyman, 19 How. 289, 299, 15 L. ed. 644, 648; Risher v. Smith, 131 U. S. clvi., Appx. 24 L. ed. 808; Morgan v. Shinn (McLellan v. Shinn) 15 Wall. 105, 21 L. ed. 87. The law of evidence of Porto Rico requires the insular courts, which have no equity jurisdiction, to receive the same evidence and reach the same result. Horton v. Robert, 3 Castro Dec. de Puerto Rico, 415. An heir or devisee not only has a right to sell or mortgage his interest in the inheritance before the division, but such lien or alienation follows the portion of the inheritance subsequently set apart to him. 66 Jurisprudencia Civil, p. 684; 96 id. p. 853; 101 id. p. 15. The action of the trial court herein in admitting evidence of the circumstances of the alleged "release," and of the real agreement and intent of the parties in executing it, is supported by a long line of authorities from the Supreme Court of Spain itself. 78 Jurisprudencia Civil, p. 494; 79 id. pp. 232-568; 86 id. p. 408; 89 id. p. 121; 93 id. p. 311; 97 id. p. 441; 101 id. p. 615. Mr. Justice McKenna delivered the opin- | bill of sale of a vessel, though it was enion of the court: rolled and also insured in the name of the transferee. See Livingston v. Story, 11 Pet. 351, 9 L. ed. 746. Appellants, to sustain their contention that 230] the bill of sale *was an absolute conveyance and accomplished payment of the debts to the bank, quote provisions of the Spanish Civil Code which, it is said, was in force in Porto Rico until 1902, which provides that the obligations of contracts must be complied with according to their terms, that their provisions, when clear and explicit, must control, and that there can be no evidence of the terms of the agreement other than the contents of the writing, unless "a mistake or imperfection of the writing is put in issue by the pleadings," or its "validity" is the fact in dispute.† But these are also the principles of the common law, and absolutely necessary if the written instrument is to be given a distinctive sanction of the agreement of the parties. But there are well-recognized exceptions. The face of an instrument is not always conclusive of its purpose. In equity, extrinsic evidence is admitted to show that a conveyance absolute on its face was in tended as security. The rule regards the circumstance of the parties and executes their real intention, and prevents either of the parties to the instrument committing a fraud on the other by claiming it as an absolute conveyance, notwithstanding it was given and accepted as security. In other words, the real transaction is permitted to be 231]*proved. This court said in Peugh v. Davis, 96 U. S. 336, 24 L. ed. 776, and repeated it in Brick v. Brick, 98 U. S. 514, 25 L. ed. 256: "As the equity upon which the court acts in such cases arises from the real character of the transaction, any evidence, written or oral, tending to show this, is admissible." The rule which excludes parol testimony, the court further said, has reference to the language used by the parties, and does not forbid an inquiry into their object in executing and receiving the instrument. Hughes v. Edwards, 9 Wheat. 489, 6 L. ed. 142; Russell v. Southard, 12 How. 139, 13 L. ed. 927; Babcock v. Wyman, 19 How. 289, 15 L. ed. 644. In Morgan v. Shinn (McLellan v. Shinn) 15 Wall. 105, 21 L. ed. 87, the rule of equity was enforced against the "Obligations arising from contracts have legal force between the contracting parties, and must be fulfilled in accordance with their stipulations." Article 1091. "Contracts shall be binding, whatever may be the form in which they may have been executed, provided the essential conditions required for their validity exist." Article 1278. "If the terms of a contract are clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its It is not contended that the equitable rule is explicit in the Porto Rican Code; but it is contended that the power to enforce the rule is given by § 34 of the act of Congress of April 12, 1900 [31 Stat. at L. 84, chap. 191], which conferred upon district courts of Porto Rico, "in addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizant in the circuit courts of the United States," and that they should "proceed therein in the same manner as a circuit court." The deduction from this is that the district court, having the "ordinary jurisdiction" of both circuit and district courts, may "proceed in the consideration of any case within that jurisdiction on the same principles," depending on the nature of the case, as those courts may. Appellee, however, says that it is not necessary to insist upon that proposition because the question presented is the "kind of evidence" which the court was entitled to receive and consider, and the case of Horton v. Robert, 3 Castro's Dec. de Puerto Rico, 410, 415, is adduced to sustain the decision of the district court in admitting evidence to explain the bill of sale in controversy. The English translation of the decision, given by the appellee, is as follows: "It seems that the defendant believes, and his whole contention *is based on this [232 belief that, for a mortgage to be declared usurious, the usury must appear from the document itself. Such an affirmation would convert the law of usury into a dead letter, and is directly in conflict with § 25 of the Law of Evidence of Porto Rico. The appellee also presumes that the object of a written contract cannot constitute the subject of investigation by a court, upon examining into its validity, but that the court must presume that it has been stated correctly in the contract itself. This presumption of the appellee is contrary to the second subdivision of § 101 of the Law of Evidence of Porto Rico, and to the law established by the American courts. No matter what motive stipulations shall be observed." Article 1281. "Commercial contracts shall be executed and complied with in good faith, according to the terms in which they were made and drafted, without evading the honest, proper, and usual signification of written or spoken words with arbitrary interpretations, nor limiting the effects which are naturally de rived from the manner in which the contractors may have explained their wishes and contracted their obligations." Article 57, Code of Commerce. or consideration is expressed in a written, of Spain "permits what our own does not— contract, the truth of its provisions is not the admission of oral *testimony re-[234 conclusively presumed, but the same can garding all the terms of a contract upon always be the subject of investigation be equal footing with the writing which evifore a court, and therefore proof can always dences it." be proposed and received in order to demonstrate what was the true motive or consideration of the obligation which may be established. See also paragraph 38 of § 102 of the Law of Evidence of Porto Rico." The law of evidence referred to is inserted in the margin.t Horton v. Robert seems to interpret the 233] Code as permitting *the application of the equitable rule, and defines the word "consideration" in § 101 to comprehend the motive or purpose of the instrument. If there is any decision or statute which militates with this conclusion, we feel sure that appellants would have cited it. But we need not distinguish between motive and consideration. The testimony was addressed to the consideration of the bill of sale in its strictest sense. On the face of the instrument the bank engaged to give up its debt for the stock of goods. This, then, constituted the consideration as expressed, but the testimony explaining it showed that it was not the real consideration, that the real consideration was to keep Suarez & Company a going concern, and to give the bank additional security. More than this it is not necessary to decide; and we shall not consider, therefore, the contention of appellee and the citations to support it, that the law †Sec. 25. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement, other than the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writing is put in issue by the pleadings. 2. Where the validity of the agreement is the fact in dispute. It is, however, contended that, if it should be held that the bill of sale did not pay or discharge the debt, appellant Maria de las Nieves was (a) but a guarantor, and her liability must be determined as such. (b) The deed of sale was but a novation. (c) It constituted, under all the circumtsances, a modification of the security, and released her, the guarantor. All these objections seem (we say seem, because the argument to support them is somewhat involved) to rest on the contention that the bill of sale was not taken as an additional security, and is, therefore, answered by what has been said. Whether she was a guarantor or not, that could not make a mortgage of her real estate any less effective, or make the bill of sale something other than what it was. Joyce v. Auten, 179 U. S. 591, 45 L. ed. 332, 21 Sup. Ct. Rep. 227. It is next contended by appellants that the bank "acquired no specific right or interest in the inheritance or participations of appellant Maria de las Nieves Cabrera y Pruna in the estate of her deceased mother," because, as it is further contended, "that her interest in the estate of her mother had not yet been divided or assigned " There was an allegation in the bill that such interest was covered by the mortgage, which was 2. The truth of the facts recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration. 38. That there was a good and sufficient consideration for a written contract. Sec. 107. No evidence shall be considered as conclusive or unanswerable unless so de But this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in section twenty-eight, or to explain an intrinsic ambiguity, or to es-clared by this act. Laws of Porto Rico, tablish illegality or fraud. The term "agreement" includes deeds and wills, as well as contracts between parties. Sec. 28. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret. Sec. 101. The following presumptions, and no others, are deemed conclusive. 1905, pages 73, 74, 87, 88, 90. In the same connection should be considered article 1186 of the Civil Code of Porto Rico, which reads as follows: "Public instruments are evidence, even against a third person, of the fact which gave rise to their execution, and of the date of the latter. "They shall also be evidence against the contracting parties and their legal representatives with regard to the declarations the former may have made therein." Revised Statutes & Codes of Porto Rico, 1902. tion, and, after hearing, it was finally dismissed, and the plaintiff in error remanded to the custody of the sheriff. 154 Fed. 980. Mr. George D. Collins, in propria persona, submitted the cause for plaintiff in error. Mr. William Hoff Cook argued the cause and filed a brief for defendant in error. Mr. Justice Peckham after making the foregoing statement, delivered the opinion of the court: The objections which the plaintiff in error urges to his further imprisonment are founded upon what he insists is implied from the provisions of the treaties between the United States and Great Britain (18421889 [8 Stat. at L. 572, 26 Stat. at L. 1508]), and he contends that, under those treaties, the state of California had no right or jurisdiction to try him for any offense whatever other than the one for which he was extradited and delivered to the Government of the United States for trial, even though he committed an offense subsequently to the extradition; and he further asserts that after a trial has been had for the offense for which he was extradited, he is entitled to be afforded reasonable time and opportunity after his final release on that charge to return to the country of asylum, and that the trial of the crime for which he was extradited must be had within a reasonable time after his extradition, or he is, for that reason, entitled to his discharge. In other words, the plaintiff in error claims immunity, under the treaties, from arrest or detention for any crime committed 121]*by him after he had been brought back upon the extradition warrant until he has been allowed a reasonable time to return to the place from which he was taken. He contends that the duty originally resting upon the demanding country to try him only for the offense for which he was extradited, and to then afford him reasonable opportunity to return, is unaffected by the fact that he committed another crime after his extradition. quently to the treaty, Great Britain passed the extradition act of 1870 (32 and 33 Vict. chap. 52), and also in 1873 an act to amend the extradition act of 1870 (36 and 37 Vict. chap. 60). Both these acts are cited as the extradition acts of 1870 and 1873. See 1 Moore, Extradition, 1891, pp. 741, 755. In subdivision 2 of § 3 of the act of 1870 it is provided: "(2) A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to her Majesty's dominions, be detained or tried in that foreign state for any offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded." Article 3 of the treaty or convention of 1889, July 12, between Great Britain and the United States, is to be found in 26 Stat. at L. 1508, 1509, and is also, among others, set out in Johnson v. Browne, 205 U. S. 309, 319, 51 L. ed. 816, 819, 27 Sup. Ct. Rep. 539, 542, 10 A. & E. Ann. Cas. 636, 638, as follows: "Article 3. No person surrendered by or to either of the high contracting parties shall be triable or be tried for any crime or offense committed prior to his extradition, other than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered." The treatment of the criminal for all acts committed or said to have been committed by him prior to extradition is thus fully provided for. *The contention of the plaintiff in [122 error that the duty to afford opportunity to return after a trial or other termination of the case upon which he was extradited is unaffected by any subsequent crime he may have committed is not even plausible. Nothing in the Rauscher Case (supra) is authority for any such contention. The duty to afford opportunity to return after trial, as stated, is limited to matters which happened before extradition; and, in the nature of things, such duty cannot be extended by implication so as to cover a toThe treaty of 1842, August 9 (8 Stat. at tally different state of facts. Because, in L. 576, § 10), is the one in regard to which some cases, in construing the treaty, it has discussions as to its meaning have arisen. been stated that a person extradited can be United States v. Rauscher, 119 U. S. 407, tried only for the offense for which he was 30 L. ed. 425, 7 Sup. Ct. Rep. 234. Subse- surrendered for trial until he has had an necessary measures for the transportation | or on account of such crimes or offenses, and and safe-keeping of such accused person, for a reasonable time thereafter, and may and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused." |