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This is the translation of Judicial Resolution About Mexico City Temple judgment (May/5/2003) to see scans in spanish of the same please go to http://www.istagosthi.com/forums/imagenes/mx/sentencia1.jpg
http://www.istagosthi.com/forums/imagenes/mx/sentencia2.jpg
http://www.istagosthi.com/forums/imagenes/mx/sentencia3.jpg
http://www.istagosthi.com/forums/imagenes/mx/sentencia4.jpg
http://www.istagosthi.com/forums/imagenes/mx/sentencia5.jpg
http://www.istagosthi.com/forums/imagenes/mx/sentencia6.jpg
http://www.istagosthi.com/forums/imagenes/mx/sentencia7.jpg
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Mexico, Federal District, sixteen of May of two thousands three.
SIGHTS to solve the BOOK OF EXCLUDING TERCERIA OF DOMINION promoted by RAMON ESTEBAN ESTRADA CHAGOYA, Dr JUAN FERNANDO CERVANTES FLORES and MAURICIO RODRIGUEZ MENDOZA in the mercantile executive judgment promoted by GOMEZ MENDOZA JAVIER against MANUELA BERUMEN DE SKIPSIE; EXP. 1399/96 and,
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I. - In writing presented/displayed the 23 OF OCTOBER OF 1997 by gentlemen RAMON ESTEBAN ESTRADA CHAGOYA, Dr JUAN FERNANDO CERVANTES FLORES and MAURICIO RODRIGUEZ MENDOZA by conduit of their proxy promoted tercería excluding of dominion respect to the house number 15 of the streets of General Zuazua, with entrance by the street of Gobernador Jose Maria 58 Tornel Col. San Miguel Chapultepec D.F., who was obstructed in the main judgment. Admitted that tercería went to proceeding occurred Vista to the executant and the executed one, being against to his origin the executant and therefore the executed one by virtue of to have passed away reason why later judicial inspector of the succession of Mrs. BERUMEN DE GARDUÑO MANUELA to Mr. DAVID POZOS HERNANDEZ that also were against their origin and it the parts were mentioned to hear the resolution that today is pronounced.------------------
---II. - The Subscribed Judge comes to the study from tercería excluding of dominion, respect to the obstructed building made be worth by RAMON ESTEBAN ESTRADA CHAGOYA, Dr JUAN FERNANDO CERVANTES FLORES and MAURICIO RODRIGUEZ MENDOZA, offering for it the following proofs: DOCUMENTARY PRIVATE, celebrated contract of transaction between Mrs. MANUELA BERUMEN OF GARDUÑO as salesman and the gentlemen RAMON ESTEBAN ESTRADA CHAGOYA, JUAN FERNANDO CERVANTES FLORES and MAURICIO RODRIGUEZ MENDOZA AS BUYERS OF DATE 5 OF MAY of 1998; DOCUMENTARY PUBLIC, resource of appeal interposed by the demand against the definitive sentence dictated the 9 of July of 1990 by the Judge Fifteenth of the Civilian followed by BERUMEN DE GARDUÑO MANUELA against RAMON ESTEBAN CHAGOYA and JUAN FERNANDO CERVANTES And MAURICIO RODRIGUEZ MENDOZA AS BUYERS ON DATE 5 OF MAY of 1998; PUBLIC DOCUMENTARY, resource of appeal interposed by the demand against the definitive sentence dictated the 9 of JulYof 1990 by the Judge Fifteenth of the Civilian followed by BERUMEN DE GARDUÑO MANUELA against RAMON ESTEBAN CHAGOYA and JUAN FERNANDO CERVANTES FLORES sentences of the Third Room of the Superior Court of Justice of the D.F. ofNdate 10 of December of 1990 touches 2169/90. And its copies registered sent by Court Fifteen of Civil file 216/89 on date 26 of June of 1991; and notarial certainty on date 14 of October of 1997; notarial certainty on date 14 of October de1997; certainty sent by the Public Notary 68 of the D.F. tests that value the terms of which arranges articles 1237, 1238, 1296 of the Code of Commerce, and with which the origin of the deduced action is not justified, in effect with registered copies sent by the Secretary in Agreements of the Court Thirty and Three of BRIGHT LICENSED Civilian FLAVIA MEIXUEIRO KINGS ESPINOLA, even though builds sentence signs dictated by the Judge Fifteenth of the Civilian deduced between BERUMEN OF GARDUÑO MANUELA against RAMON ESTEBAN CHAGOYA and JUAN FERNANDEZ, judgment in which it condemns to the granting and deprived contract company/signature of transaction celebrated between parts and respect to the house number 15 of the streets of General Zuazua with entrance by the street of Gobernador Jose Maria Tornel 58 colony San Miguel Chapultepec, Federal District, sentence that to be sustained in a private contract that lacks registry and that even when not building in the public instrument of single reference acquires the quality of document that contains certain date from that they are recognized by his signers, according to the jurisprudence *** Contained in the appendix of failures 1917-1995, volume IV, first part, page 162, Third Civil Room, thesis 237 whose epígrafe is the following one: PRIVATE DOCUMENTS, CERTAIN DATE OF. - They only can be considered that the private documents have certain date when they have been presented/displayed to a Public Registry or before a civil employee in regard to his office, or as of the date of the death of anyone of their signers; thesis that is updated to the case to infer that when not building private contract aggregate the fact represented in the public instrument is due to have by the way in which the contract of reference by the demanded one was celebrated to the moment at which it yields to the demand and that according to the consideration spilled by the Judge of the cause was it by conduit of Mr. DAVID WELLS HERNANDEZ in its character of Judicial inspector of Mrs. GARDUÑO MANUELA BERUMEN, THEIR SUCCESSION by means of writing of date of presentation 21 of June 2002, since it is as of that date in where the contract that is not exhibited does not acquire the quality of certain date, to the being recognized by the Judicial Inspector of the Executor of the demanded succession, when not building either in this public instrument copies registered letter of the act of death of referred MANUELA BERUMEN DE GARDUÑO, on the other hand according to the procedural certainties of the main judgment we have the embargo practiced in the property matter of the debate occurred with date 7 of October of 1996, same one that appears that it was registered in the Public Registry of the Property with date 17 of October of 1996, this is in advance to the demand of granting of the deprived contract of transaction celebrated by third with executed MANUELA BERUMEN DE GARDUÑO, is to notice that also of the demand presented/displayed before the Court Fifteenth of the Civilian, the same one is not according to the certificate of burdens that enrolled builds to fojas 140-144 of the main judgment, by such reason in accordance with the article 92 of the Code of Civil Procedures for auxiliary application to the case not him for damage to the executant the sentence dictated in the judgment and granting and deprived contract company/signature of transaction, in regard to which the executant was not called in opinion although she in advance was to the joined embargo in cars upon presentment of the demand of granting and company/signature of the private contract of transaction enrolled; in effect with great illustrious clearness to the Uruguayan procesalista EDUARDO J. COUTURE, has defined as third: "that are neither successive parts nor of the parts a title universal or singular" (consultable Study of Procedural Right, Volume II, Editions of Palm, Buenos Aires Argentina, Third Reprinted Edition, 1998 Pág. 98); it gives the doctrinal appointment is noticed that to only the instrument to third by the fact reaches damage him of to have granted and its date and given the deficiency of the documentaria test offered by the tercerista referring to the copies certified, sent by the C. Secretary of Agreement of the Court Thirty third of the single Civilian one is due to have later by credited to the date of celebration from the levelling to the demand of the judgment of granting origin and company/signature of writing produced after the tie of the embargo, and therefore at the moment in which one obstructed belonged to the patrimony of executed MANUELA BERUMEN DE GARDUÑO, ITS SUCCESSION, before third since also it is possible to make notice that the registry function constitutes modern means that allow to know the titularidad and conditions of or destined with which is desired to formalize a contract and is in agreement with the definition indicated for the third sandal ***, the inscription of personal real rights as fits within the text of 3011 article the Civil Code orders the real rights in general any burden with limitation of such or of the dominion, so that they have desired effect against third, they will point out to him in the folio of the property on which they fall to the form that determines the regulation.; reason why once described the legitimacy and legality as the act that registers the Registry, it protects the rights acquired by third of good, once registered (Article 3009 of the Civil Code) being applicable case the jurisprudence I number 766 visible in 126 page Second Part, Rooms and common Theses of the appendix of the Judicial Weekly magazine of the Federation of the years 1917-1988 that exactly says: EFFECTS OF THE REGISTRY OF. - The contracts that must be registered, do not have desired effect against third while they have not been registered so that if a transaction is registered, after the date in which the embargo dictated on the building was united that alienates this sale although trasistiva ***, *** property for the buyer cannot be opposed the embargador, that acquired rights respect to real estate sold prior to the date in which it registered the transaction whereas the garnishing one if it can oppose to the buyer the respective rights that are derived from the sequestration properly registered thesis that is updated to the case to declare infundada tercería excluding of propose dominion, acquiring effectiveness the opposition used by the executant to fojas (13-16).
By the exposed and establish.
-------determine ---
first. - It has been transacted in had forms tercería excluding of dominion of the attached property promoted by RAMON ESTEBAN ESTRADA CHAGOYA, Dr JUAN FERNANDO CERVANTES FLORES and MAURICIO RODRIGUEZ MENDOZA in which third they did not prove his action and the executant if it justified its opposition and the executed one did not justify its exceptions. ---
second. - Tercería excluding of dominion deduced in judgment is declared the present baseless. ---
third. - NOTIFY. ---Like this, DEFINITIVELY judging solved it and signs the C. JUEZ DECIMO CIVIL SECOND LICENCIADO CARLOS MIGUEL JIMENEZ MOOR, before the C. Secretaría de Acuerdos that gives faith.
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