On the 12th of November,  1909, the plaintiff commenced an action to recover the  possession of the  parcel of land described in paragraph one of the complaint, together with the sum of P?240 as damages for the  illegal possession of said parcel of land and costs.  The defendant filed a general and special answer.

After hearing the evidence adduced during the trial of the cause, the Hon,  V. Nepomuceno, judge  of the Eighth Judicial District, rendered a judgment declaring that the plaintiff was without  right to the  possession of the land in question and  absolving the defendant from any liability under the said complaint, with costs against the plaintiff.

From that  judgment of  the lower court the plaintiff appealed and made the following assignment of error: 

"The lower court erred in holding that the possession of the land in question was in Pedro Triunfo and not in Lope Torrecampo, on the date of the public sale by the sheriff."

After a  careful examination of the evidence adduced during the trial  of the cause, we find that a  preponderance of the evidence shows the following facts:

First. That on the  29th  of  May,  1903,  one  Estefanio Vargas Rojas, mortgaged the land in question  (see Exhibit A) to the plaintiff herein for the sum of 200  pesos Mexican currency.

Second. That some time after the said mortgage had been executed and delivered, Pedro Triunfo went into possession of the said land. The plaintiff claims that Pedro Triunfo was in possession of the land  as his  tenant.

Third. That on the 15th of August, 1907,  the defendant herein (Balbino Vitero)  commenced an action (No. 783) against the said Pedro Triunfo, for the purpose of recovering the sum of P2,711,  with interest at the rate of 6 per cent from the 1st of February, 1904.  At the close of the trial of that cause (No. 783), the Hon. Grant Trent, then judge of the Eighth Judicial District, rendered a judgment on the  13th of November,  1907, in  favor of the plaintiff (Vitero)  and against the  defendant  (Triunfo) for the sum of P2,711 Mexican currency with interest, etc., and costs.  No appeal was taken from that judgment.

On the 14th of November, 1907, an execution was issued on said judgment and the parcel of land herein in question was attached and later, on or about the 1st of August, 1908, was sold  at public auction  to the defendant herein.  The defendant herein has been in the possession  of said parcel of land since that date.

Fourth. That in the month of April, 1908, the plaintiff herein (Torrecampo) commenced an  action in the court of the justice of the  peace of the pueblo of Bato, against the defendant herein (Vitero) to recover the possession of the land in question,  which action was  decided against the plaintiff and he did not appeal from  said judgment of the justice of the peace.

The contention of the plaintiff herein is that, under his. said mortgage of  the  29th of May, 1903, he, through his tenant, Pedro Triunfo, was entitled to the possession of the land; that  Pedro Triunfo  was his  tenant  only.   Pedro Triunfo was not called as a witness during the trial of the cause.   The record  discloses  no reason why he was not. His testimony might have cleared up some of the difficulties which the case presents.

The only witness sworn in behalf of the plaintiff was the plaintiff himself.   He  swore  that Estefanio Vargas Rojas mortgaged the land in question to him on the 29th of May, 1903, and that Pedro Triunfo took possession of the land in question as his tenant.

Exiquio Vargas, son of the  said Estefanio Vargas Rojas and Leon Mendoza appeared as witnesses for the defendant. The said Exiquio Vargas testified that his father mortgaged the  land  in  question to Pedro Triunfo and  Lope Torrecampo; that Pedro Triunfo was in possession of the said land at the time of the attachment in 1908;  that he was the owner of the attached tract of land; that Pedro Triunfo had cultivated the land from 1903 to 1908 and had reaped the crops therefrom; that Pedro Triunfo had not delivered any portion of the said crops to the plaintiff Lope Torrecampo; that he had never seen the said Torrecampo on the said parcel of land.

Leon Mendoza testified that he knew the parties to the present action; that he owned the land adjoining the land in question and had owned said land since 1904; that Pedro Triunfo had farmed the said land and had reaped the crops therefrom.

The record does not clearly disclose upon what theory the land in  question was attached and sold as the land of Pedro Triunfo.  The plaintiff admits that his right to  said land was only the right of a  mortgagee.   There is no attempt to shdw that he had  ever foreclosed  his mortgage and had obtained title to the  land.  The fact that the land was sold as the property of Pedro Triunfo will  in no way affect the rights of Lope Torrecampo  under  his mortgage.  If his mortgage is a valid lien upon the property, then, notwithstanding the fact that  the land  has been sold under the writ of execution subsequent to the creation of his mortgage lien, this will in no way affect his lien upon the property.  Of course he mu st establish the fact that his mortgage was a valid mortgage,  constituting a  valid lien  upon the property in question.

As was said above the record does not clearly disclose what right or interest  Pedro  Triunfo had in the land  in question at the time of  the attachment and sale.   He presents no objection here to said attachment and sale; neither does the mortgagor, Estefanio Vargas Rojas,  present any objection  to  the  land   having been sold under  the  said execution.

Accepting the allegations of the plaintiff with reference to his alleged mortgage upon the land in question as a fact, yet, nevertheless, this fact  is not sufficient  to  justify his recovery of the land in question in the present case.  If his mortgage is a valid  mortgage upon the land, constituting a prior lien to the attachment and sale, the said  attachment and sale in no way affected  his lien.  He still has his right to enforce his  lien against  the  property in  question, in a proper action therefor, but the facts disclosed in the record are not sufficient to justify his physical  recovery of  the land in question.

Therefore the judgment  of the  lower court is hereby affirmed, with costs.

Torres, Mapa, and Carson, JJ., concur.

Moreland, J., concurs with the dispositive part.