Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 1920 > March 1920 Decisions > G.R. No. 14749 March 12, 1920 - VICENTE BARGAYO v. JORGE CAMUMOT

040 Phil 857:




PHILIPPINE SUPREME COURT DECISIONS

FIRST DIVISION

[G.R. No. 14749. March 12, 1920. ]

VICENTE BARGAYO ET AL., Plaintiffs-Appellants, v. JORGE CAMUMOT, Defendant-Appellee.

Vicente Urgello for Appellants.

No appearance for Appellee.

SYLLABUS


1. DESCENT AND DISTRIBUTION; PRESCRIPTION OF ACTIONS; PRESCRIPTION OF OWNERSHIP. — The prescription of an action and the acquisitive prescription of ownership cannot and should not be confounded. They are two different and distinct things, although equally transcendent, Being of identical result and effect. The confusion of one action with the other has been the cause of the difficulty of the interpretation and proper application of article 1965 of the Civil Code which plainly says that as between coheirs and coowners the action to demand the partition of the inheritance or of the thing held in common does not prescribe.

2. ID.; PRESCRIPTION OF OWNERSHIP. — Article 1966 of the Civil Code above cited does not contain any provision concerning the prescription of the ownership of an inheritance by any of the heirs; and under the Spanish law there is no provision expressly denying or prohibiting the prescription of the ownership of the inheritance by one of the coheirs. On the contrary, article 1909 of the same Code, in providing for the extraordinary prescription of ownership and other real rights in real property, only excludes therefrom the continuous non-apparent easements and intermittent ones, whether apparent or not, which according to article 639 of the Civil Code, can only be acquired by virtue of a title. Moreover, in article 1936 of the same Code it is provided that all things which are the subjects of commerce may be acquired by prescription and there is nothing so sacred and exceptional about the ownership of an inheritance that it cannot be acquired by prescription and because no express provision of the law declares its imprescriptibility.

3. ID., RECOVERY OF REALTY. — In an action for the partition of an inheritance or a thing held in common, known in Roman law as familiae erciscundae, the plaintiff’s right over an aliquot part of the thing held in common is not in issue for said thing is taken for granted as owned in common by the coheirs or coowners. But from the moment one of the latter, at least, claims that he is the absolute and exclusive owner of all of the community properties and denies the others any share therein, the question then involved is no longer one of partition but of ownership; and in consequence thereof the action is similar to that of an action for the recovery of the ownership of realty to which in no way can article 1965 of the Civil Code be applied. (See 12 Manresa Com. Civil Code, 858.) The same doctrine is found in the American law under section 41 of Act No. 190, which was taken from article 2734 of the Law of Mississippi. (1 Cyclopedia of Law and Procedure, 1080, 1081.)

4. ID.; ID.; PRESCRIPTION OF OWNERSHIP. --The acquisitive prescription of ownership mentioned in section 41 of Act No. 190 is then applicable to all cases where the possession of a coheir is shown to be under claim of ownership, exclusive and adverse to the other coheirs, same not repealing or infringing article 1965 of the Civil Code which only refers to the imprescriptibility of an action for the partition of an inheritance and which is not applicable to an action entitled a partition of an inheritance when in reality its object is the recovery of a part of an estate believed by the claimant as his by right.

5. ID.; ID.; ID. — In law it is understood that the coowner or coheir who is in possession of an inheritance pro indiviso for himself and in representation of his coowners of coheirs, if, as such owner, he administers or takes care of the rest thereof with the obligation of delivering it to his coowners or coheirs, is under the same situation as a depositary, a lessee, or a trustee. For this reason, pursuant to the provision of section 38 of Act No. 190, it cannot be understood that the aforementioned article 1965 has been expressly or impliedly repealed by section 43 and following of Act No. 190, none of which sections mentions or refers to the subject-matter dealt with in said article 1965 of the Civil Code.

6. ID.; ID.; ID.; ADVERSE POSSESSION. — The possessor under claim of ownership and adverse to others, after the lapse of the period fixed by law, has ceased to be a coowner, a coheir, an administrator, a depositary, a trustee, or a lessee because he then possesses the thing held in common not in the names of his coheirs, coowners or the owner thereof but in his own name and for himself only; and given the exception under paragraph two of the aforesaid section 38 of Act No. 190, we are forced to conclude that the provision of article 1965 of the Civil Code still subsists as long as the possessor or occupant, against whom the action mentioned in said article is brought, cannot allege and prove that his possession is under claim of ownership and adverse to all including the plaintiff.

7. ID.; ID.; ID.; ID. — In determining when possession may be considered as adverse according to American doctrines and jurisprudence, which must be taken into account in interpreting and applying section 41 of Act No. 190, it has been held in the case of Warfield v. Lindell (90 Am. Dec., 443), that acts which in case of a stranger would be deemed adverse, may not be such as among the coheirs. In the case of Hart V8. Gregg (36 Am. Dec., 166j, wherein several heirs were fighting for a piece of land proceeding from a common predecessor, the following doctrines were laid down: "Entry by one cotenant or coparcener inures to the benefit of all and cannot become adverse without some unequivocal act amounting to an actual disseizin or ouster of the cotenants. Perception of rents and profits by one cotenant, and erecting fences and buildings adapted for the cultivation of the common land, do not amount to disseisin of the other cotenants: so, it seems, even though the receipts of the rents and profits is accompanied by a claim of title to the whole land.." . . Thus in the case of McClung v. Ross (6 Wheat. [U. S. ], 116), the Supreme Court of the United States, speaking through Chief Justice Marshall, held that a silent possession, accompanied with no act which can amount to an ouster of his cotenant, or give notice to the latter that his possession is adverse, ought not to be construed into an adverse possession.

8. ID.; ID.; ID.; ID.; EVIDENCE. — When dealing with acquisitive prescription interposed by a defendant against those alleging as owners of the thing usurped, the evidence relative to the possession as a fact, upon which said alleged prescription is based, must be clear, complete and conclusive in order to establish said prescription without the shadow of a doubt; and when upon the trial such was not the case and when the possessor has not proven that his possession of the property in question is exclusive and adverse and that he has opposed the right of the plaintiffs over the thing held in common, the action has not reached the characteristic of an action for the recovery of the ownership of realty but only that of petition or partition of an inheritance.


D E C I S I O N


TORRES, J. :


The complaint in this case was filed with the Court of First Instance of Cebu on January 13, 1913, alleging that the plaintiffs and the defendant Jorge Camumot are owners pro indiviso of two building lots situated in the barrio of Cogon, municipality of Carcar, Cebu, two parcels of arable land situated in the barrio of Guadalupe of the same municipality, five wooden posts and seven pieces of wood; that all of the foregoing real and personal properties are valued at P1,140; that said properties were left to them (plaintiffs and defendant) by their ascendants Jose Camumot and Andrea Barasona, the legitimate parents of the defendant Jorge Camumot and his deceased sister called Placida Camumot who is also the legitimate mother of the plaintiffs of the surnames Bargayo and the legitimate grandmother of the plaintiffs of the surnames Campugan; that upon Jose Camumot’s death in 1895, his wife, Andrea Barasona, having died before, the defendant Jorge Camumot entered upon the possession and enjoyment of the properties aforementioned without giving the plaintiffs any share of the fruits thereof or of the purchase price of the parcel of land de- scribed in the fifth paragraph of the complaint which was expropriated by a railroad company in Cebu; and that the defendant refuses to make a partition of the said properties and to deliver to the plaintiffs their corresponding shares thereof as the representatives of the deceased Placida Camumot, pretending to be the absolute owner thereof. And upon the foregoing allegations the plaintiffs pray that an order for the partition of the properties described in the complaint be issued, adjudicating one-half of said properties to the plaintiffs herein and the other half to the defendant herein, Jorge Camumot; that the latter be sentenced to pay the plaintiffs the sum of P500, the value of the fruits gathered by him and the price of the portion of the land expropriated by the railroad in Cebu, and the sum of P400 as damages suffered by them on account of the defendant’s refusal to divide the said properties and of his having gathered for himself, exclusively, the fruits thereon during seventeen years and to pay the costs of this instance; and that the court issue any other remedy which may be proper according to law.

The demurrer to the complaint interposed by the defendant having been overruled by the court, the former excepted against said ruling and answered the complaint, denying generally all its essential averments and alleging as special defense that he has been for thirty years in possession as sole owner of the lands described in the complaint and that in view thereof he be absolved from said complaint, declared the owner of the lands aforesaid, and the plaintiffs be sentenced to pay the costs of this instance and the damages he has suffered.

After hearing the case and the evidence of both parties, the court, on March 1, 1916, rendered its decision declaring the plaintiffs’ action prescribed and the partition of the property described in the complaint improper, with the costs against them.

Against this judgment plaintiffs’ counsel excepted and at the same time moved for a new trial which motion the court denied. Against the order denying this motion the plaintiffs excepted, gave notice of their intention to appeal and presented their bill of exceptions within the time prescribed by law.

From the agreed statement of facts signed by counsel for both parties it appears that Jose Camumot and Andrea Barasona, the original owners, according to the plaintiffs, of the properties in litigation, are the legitimate parents of Jorge Camumot, the defendant, and Placida Camumot, the mother of the plaintiffs of the surnames Bargayo and their deceased sister Victoriana Bargayo, the latter being also the legitimate mother of the other plaintiffs of the surnames Campugan; and that Placida Camumot and her mother Andrea Barasona died before Jose Camumot, who in turn died in 1895.

From the evidence adduced by the plaintiffs it appears that the four parcels of land described in the complaint as well as the house built on one of said parcels formerly belonged to the deceased spouses Jose Camumot and Andrea Barasona, who had been in possession thereof until — Jose Camumot being already a widower and unable to work on account of his advanced age — his son Jorge Camumot, who was living with him, administered and cultivated said parcels of land; that said Jorge Camumot continued in the possession and enjoyment thereof after Jose Camumot’s death up to the date of the complaint; and that Jorge Camumot never made any partition of the property left at the death of the said Jose Camumot between the latter’s heirs.

The defendant attempted to prove that one of the these parcels of land was received by him from his maternal grandfather, Rosendo Barasona, another was delivered to his son Zacarias Camumot by his father Jose Camumot, the third is the share which went to him in the partition made by his father himself, Jose Camumot, in the year 1873, and the remaining is what was allotted in said partition to his deceased brother called Mauro and which passed to him because he repurchased it from one Simplicio Bakus to whom his said brother Mauro had sold same. But the testimonies of the defendant and his witnesses are so improbable, confused and contradictory with each other that same deserve no merit at all.

In effect, the defendant testified in the beginning that the land given to him by his grandfather Rosendo Barasona is in the barrio of Guadalupe, but afterwards he said that the building lot situated in the barrio of Cogon came from his said grandfather, when from his own testimony his said grandfather had but one piece of land when the land object of the alleged donation was delivered to him. The defendant also testified that the four parcels of land described in the complaint came from his father, and this rebuts his pretention that one of them came from his grandfather. Moreover, he said that the lands in question belong to him, which statement was corroborated by his son Zacarias Camumot, who testified that his father, Jorge Camumot, is in possession of the four parcels of land subject of this litigation and that his said father had always been in the possession thereof as owner from the time he was possessed of his reasoning power. But this statement was afterwards contradicted by Jorge Camumot, saying that one of the four parcels belongs to his son, Zacarias Camumot, because same was delivered to the said son by Jorge’s father five years before the latter’s death, i. e., after the alleged partition when, according to the defendant himself, there was nothing remaining with his father, the aforesaid Jose Camumot.

The same Zacarias Camumot, a witness of the defendant, has contradicted himself in that in the beginning he testified that one of the four parcels of land object of this litigation belongs to him, but afterwards said that Jorge Camumot had been in possession of the four parcels of land as owner ever since the time he (witness) was possessed of his reasoning power, as said Jorge do possess them now.

Simplicio Bakus, another witness of the defendant, tried to establish in the direct examination that one of the parcels of the land in litigation was sold to him by Mauro, a brother of Jorge Camumot who afterwards repurchased it. But in the cross-examination he could not help but contradict himself and admit the truth of the testimony of one of the witnesses of the plaintiffs in the sense that said parcel was sold under pacto de retro by Mauro, the father of Simplicio Bakus (the witness), without Jose Camumot’s consent, and that when the latter knew this fact, he repurchased same. Lastly, the defendant himself admitted that the partition alleged by him to have been made by his deceased father Jose Camumot was effected in 1873 and during the lifetime of the latter’s wife, there having been left nothing with said spouses. This statement is highly incredible and contrary to the natural course of human transactions. It is very probable that the spouses aforesaid would have once in a while given donations to a son or a grandson of theirs and that they would have appointed the defendant Jorge Camumot as administrator of the remaining property, as is admitted by the plaintiffs who had stated that a caraballa was given as a gift to the plaintiff Damiana Bargayo, a parcel of land, to the deceased Placida Camumot and another parcel, to the defendant Jorge Camumot, and that the defendant took the management of the property in litigation when the old man, Jose Camumot, could no longer work. However, it is incredible that the said spouses, twenty-five years before their death, would have made a partition which would strip them of their property — above all when the witnesses affirming this fact have committed contradictory statements acknowledging a true plot to deceive the courts of justice, as the contradictory statements committed by the defendant and his witnesses.

Furthermore, impelled by the strength of truth and perhaps unconscious of the sham part he had proposed to play, the defendant spontaneously said that he now has the enjoyment of the property in litigation but not when his father was yet living, because said property was not yet partitioned. This statement reveals in an unmistakable manner the falsity of the defendant’s theory and at the same time the plaintiffs’ good faith and sincerity.

At the hearing of the case no mention was made of the personal property recited in the complaint. But the plaintiffs affirming that on one of the parcels of land in litigation there has been built one or two houses also belonging to the common constituent, Jose Camumot, and the defendant admitting that Jose Camumot’s house is still on one of said parcels, although he alleges that same was destroyed by a hurricane and rebuilt by him (pp. 19, 34, 37, 68, 72 and 78 steno. notes), it is indubitable that the five bagtikan posts and the seven pieces of wood mentioned in the complaint are the materials left of the house which was destroyed by the hurricane aforesaid, and therefore belong also to the inheritance.

It therefore follows that all of the properties described in the complaint came from Jose Camumot, the common constituent of the parties to this case, and are still undivided properties. But this question is now presented: All of said properties having been in Jorge Camumot’s possession, has the latter obtained his ownership thereof by prescription?

The plaintiffs admit that since Jose Camumot’s death the defendant has been, up to the present, in possession and enjoyment of the properties in question without his giving the plaintiffs any of the fruits thereof nor paying any attention to them when called upon to make the partition among them (rec., pp. 20 and 40). One of the plaintiffs said that in 1889 or 1899 they asked Jorge Camumot to make the partition of the properties in litigation (rec., pp. 27 and 32) and another admitted that they asked for the partition after the establishment of the present regime (rec., p. 40). But the exact date of the defendant’s refusal to make the partition does not clearly appear on the record, nor does it appear of what said refusal consisted. The defendant did not make any special attempt to prove his allegation of prescription of ownership. And the only thing appearing as certain is that for more than seventeen years the defendant was enjoying, exclusively for himself, all of the properties in question, and every time plaintiff would ask him to make the partition he would not heed them until said plaintiffs instituted the present action.

The lower court decided the foregoing question by declaring that "the plaintiffs did not only fail to prove satisfactorily all and each of the facts alleged in their complaint but instituted an action which in any way is dead in accordance with the letter and spirit of section 41 of the Code of (Civil Procedure. . . ."cralaw virtua1aw library

The appellants attack the foregoing part of the judgment appealed from, saying that the instant action is one for partition of an inheritance which does not prescribe according to article 1965 of the Civil Code declared in force by this court in 1918 in the case of Cabello v. Cabello (37 Phil. Rep., 328).

The conclusion of the lower court inserted above is in any may erroneous and, taking into account the legal provision upon which it is based, assumes an argumentation which on juridical grounds constitutes a real fallacy. For to say that an action has prescribed because the defendant therein has been in the possession of the object sought to be recovered under the conditions required by law for the acquisition of ownership by adverse possession is evidently a fallacious and vicious argumentation. An action is prescribed or not according as to whether same was exercised within or without the period marked by law to that effect, it being not necessary, in order to declare said action prescribed, to inquire into the concept or conditions under which the party defendant has possessed the thing in dispute. It is enough for the court before which said action is instituted to inquire whether or not from the date on which the cause of action arose until that on which same was exercised the time fixed by law for its prescription has already elapsed.

The prescription of an action and the acquisitive prescription of ownership cannot and should not be confounded. They are two different and distinct things, although equally transcendent, being of identical result and effect. Such a confusion has been the cause of article 1965 of the Civil Code having been interpreted with difficulty and applied erroneously.

However, having in mind the distinction between the prescription of an action and the prescription of ownership, it would be very easy to understand and comprehend the significance and extent of the precept contained in the aforementioned article 1965 of the Civil Code.

The precept of this article plainly says that as between coheirs and coowners, the action to demand the partition of the inheritance or of the thing held in common does not prescribe.

As it can be seen, the law only says that the action to demand the partition of the inheritance does not prescribe. But, cannot one of the heirs acquire by prescription the ownership of the inheritance? Article 1965 of the Civil Code does not answer this question either affirmatively or negatively for it only deals with a certain kind of action; and under the Spanish law there is no principle or doctrine expressly prohibiting the prescription of the ownership of the inheritance by a coheir. On the contrary, article 1959 of the same Code, in announcing the doctrine of extraordinary prescription of ownership and other real rights in real property, only excludes therefrom the continuous non-apparent easements and intermittent ones, whether apparent or not, which, according to article 539 of the same Code, can only be acquired by virtue of a title. Now then, if in the enumeration of imprescriptible things made in article 1965 of the Civil Code the ownership of the hereditary properties has not been included and in enumerating the prescriptible things in article 1959 only non-apparent and discontinuous easements are excepted, having been declared in article 1936 of the same Code that all things which are the subject of commerce may be acquired by prescription, is it permissible to include in the said enumeration and exception things which the legislator has not mentioned? On the other hand, is there anything so sacred and exceptional about inheritance that it may not be acquired by prescription? If there is nothing sacred about the ownership of an inheritance and there is no law expressly providing for its imprescriptibility, and article 1965 of the Civil Code speaks not of prescription of ownership but of action, it is evident that to deny the prescription of the ownership of an inheritance, because article 1965 of the Civil Code declares the action for its partition imprescriptible, is to confound the prescription of ownership and that of an action, as it would be likewise fallacious to declare an action for the partition of an inheritance prescribed simply because the ownership of the inheritance has been prescribed by a coheir.

It will be contended that the distinction of the two kinds of prescription (of ownership and of action) is of no practical value because, once the action is prescribed, ownership is also prescribed, and vice-versa. But this contention does not destroy the truth of the proposition discussed and does not show that from the imprescriptibility of the action may be inferred the imprescriptibility of ownership, which is the principal point of the question; because articles 1962 and 1963 of the Civil Code fix a period of 30 years for the prescription of real actions relating to real property and six years for the prescription of real actions relating to personal property, and as the same Code (arts. 1955 and 1957) fixes shorter periods for the prescription of ownership of the same kinds of properties, it follows that there will be a case where ownership has already prescribed with the corresponding action still subsisting. Hence, it cannot be said that the mere fact that the action for partition cannot be prescribed a coheir cannot acquire by prescription the ownership of the inheritance. Between the premises and the conclusion of said argument there is not, juridically speaking, a true relation, a nexus.

If such is the case, it is evident that in order to determine in the instant case whether or not the defendant has acquired by prescription’ the properties in question, all discussion or argumentation based upon article 1965 of the Civil Code, which only deals with the imprescriptibility of the action for the partition of an inheritance between coheirs and not that of the ownership of the inheritance, is impertinent and fallacious. Wherefore, we must entirely disregard this article and only inquire whether or not defendant’s possession meets the conditions required by law for the prescription of ownership.

However, it will be asked: If in the instant case we are going to disregard article 1965 of the Civil Code, then what is the use of this article? Simply to avoid the perpetuity of the community of ownership. The aforementioned article speaks of an action for partition and not of another thing. Wherefore, it should not be applied to a case like the present one in which, although the partition of an inheritance is asked for, nevertheless, the principal question involved is the recovery of parts of the properties which, according to the plaintiffs, belong to them as the representatives of their mother or grandmother. An action for partition takes place when, some of the coowners being willing to divide the community property, there are others who, without denying the former’s share in the said property, are nevertheless opposed to the partition of the thing held in common, or pretend to divide same in such a way as the other coowners do not agree. It must be borne in mind that in an action for partition the plaintiff’s right over an aliquot part of the thing held in common is not in issue; said thing is taken for granted as owned in common by the parties. But from the moment that one of the coowners, at least, claims that he is the absolute and exclusive owner of all the community properties and denies the others any share therein, the question then involved is no longer one of partition but of ownership, although, if the community of property is proven, the consequent partition thereof be afterwards performed. In such a case, the action then is one of partition of inheritance if it is between coheirs, an action similar to the recovery of realty to which in no way can article 1965 of the Civil Code be applied.

This same interpretation, which, strictly speaking, is not properly an interpretation but a mere exposition of what the aforementioned article clearly and plainly says, is supported by Spanish authorities and decisions. Thus, the eminent commentator Manresa, in discussing the provision of this article, says;." . . the imprescriptibility of the action to demand the division of a succession known in Roman law as familie erciscundae, cannot be invoked when one of the coheirs has possessed the inheritance as owner and for a period sufficient to acquire it by prescription, because such action necessarily arises from the possession in common or pro indiviso of the inheritance . . ." It is evident that the said commentators a luminary of Spanish juridical science, holds the doctrine that a coheir can acquire an inheritance by prescription and says that an action for partition of an inheritance arises from the possession in common, i. e., it presupposes the possession in common or pro indiviso, or what amounts to the same thing, that in an action for the partition of an inheritance it is presumed, it is admitted, that the contending parties are coowners. (12 Manresa, Com. on Civil Code, 858.)

Lastly, if, in order to acquire the ownership of a thing by prescription, at least by the extraordinary prescription under the Spanish law, the only thing necessary is the possession as owner during the period fixed by law, why cannot a coheir acquire by prescription the ownership of the inheritance? Cannot, perchance, a coheir possess the inheritance as owner and adverse to his coheirs? If a coheir who has the material possession of an inheritance enjoys all the fruits and benefits thereof exclusive of others, and prevents his coheirs from interfering and making anything thereon, cannot his possession be classified as adverse? Certainly there can be no other possession, adverse and under claim of ownership, that can be more notorious and patent.

It is, therefore, perfectly settled that under the Spanish law an heir can acquire by prescription the ownership of an inheritance to the prejudice of his coheirs and that article 1965 of the Civil Code is only applied to an action for the partition of an inheritance, i. e., to an action wherein the rights of all parties to their respective shares of the inheritance is taken for granted but not to an action wherein the plaintiff’s right to participate in the inheritance is denied, in which case the action is one for recovery and outside of the prohibition of article 1965 of the Civil Code, repeatedly cited.

The same doctrine is well settled in American law under whose principle is based the acquisitive prescription of ownership provided for in section 41 of the Code of Civil Procedure, which was taken from section 2734 of that of the State of Mississippi. (Vide Thompson, Dilard an(l Campbell, annotated Code of Mississippi, page 656.)

Thus in 1 Cyclopedia of Law and Procedure, 1080, 1081, the following principles are laid down.

"Where one of several heirs enters into or remains in possession of land on the death of the ancestor, his possession will, in general, be considered the possession of his coheirs and for their benefit.

"There is, however, nothing in the relation between heirs which will prevent the possession of one from becoming adverse to the others. But in order to render his possession adverse, there must be plain, decisive, unequivocal acts or conduct on his part amounting to an ouster or disseizin of the others. No mere acts of ownership will render the possession adverse."cralaw virtua1aw library

So clear are the foregoing principles and so simple is the doctrine involved therein that any comment upon their meaning is unnecessary; and said principles being in harmony with those principles enunciated in the present Civil Code, we are forced to conclude that the acquisitive prescription of ownership mentioned in section 41 of the Code of Civil Procedure is applicable to all cases where the possession of a coheir is shown to be under claim of ownership, exclusive and adverse to the others; that said section 41 has not repealed or infringed article 1965 of the Civil Code which solely and simply refers to the imprescriptibility of an action for the partition of an inheritance; and that this last substantive law cannot be applied to a case which the plaintiff calls the partition of an inheritance asking for its division but which has for its principal object the recovery of a part of certain property, as it happens in the present suit.

Regarding whether or not section 43 of the Code of Civil Procedure has repealed the aforesaid article 1965 of the Civil Code (which establishes the imprescriptibility of an action as between coheirs, coowners, or proprietor of adjacent estates to demand the partition of the inheritance, of the thing held in common, or of the survey of the adjacent properties) this question — if it can be considered under the law, as we do, that this action under article 1965 of the Civil Code is analogous to that which an heir of a testator or a person to whom belongs the ownership of certain property can institute against a trustee or an administrator of said property — is completely decided by section 38 of the aforesaid Code of Civil Procedure which says that chapter III thereof shall not apply to the cases cited in said section, among which is that of a continuing and subsisting trust.

We understand that the coowner or coheir who is in possession of an inheritance pro indviso for himself and in representation of his coowners or coheirs, if he is the owner of a part of the inheritance and administers or takes care of the rest thereof with the obligation of delivering it to each of his coheirs or coowners respectively, is under the same situation as a depositary, a lessee, or a trustee. For this reason we are of the opinion that the aforesaid article 1965 of the Civil Code is not expressly or impliedly repealed by section 43 and following of the aforementioned Act No. 190, besides the fact that these sections do not mention or make any reference to the subject-matter dealt with in article 1965 of the Civil Code.

The acquisitive prescription of ownership (acquired by one of the coowners, coheirs, and administrator, depositary, or lessee by means of an adverse possession under claim of title and after the lapse of the time fixed by law) can completely extinguish the right of the other coowners, coheirs, or owners of the property in the possession of the one claiming ownership by prescription, and in such case the action of the former against the latter is also prescribed, because then the possessor under claim of ownership and adverse to the others has ceased to be an administrator, trustee, depositary, or lessee and possesses the thing not in the names of his coheirs, coowners or the owner but in his own name and for himself only; and with the exception under the aforesaid section 38 of Act No. 190, the provision of article 1965 of the Civil Code still subsists as long as the possessor or occupant, against whom the action mentioned in said article is brought, cannot allege and prove that his possession is under claim of ownership and adverse to all.

After the foregoing considerations, the true and principal question, not to say the only question, which must be resolved in deciding this case is whether or not the defendant has been in possession of the properties in question under the conditions required by section 41 of the Code of Civil Procedure.

One of the conditions imposed by said section is that the possession must be adverse against the whole world. Now then, can defendant’s possession of the properties in question be classified as adverse?

In Warfield v. Lindell (90 Am. Dec., 443), it has been held that acts, which in case of a stranger would be deemed adverse, may not be such as among coheirs.

In Hart v. Gregg (36 Am. Dec., 166), wherein several heirs were fighting for a piece of land proceeding from a common predecessor, the following doctrines were laid down:jgc:chanrobles.com.ph

"Entry by one cotenant or coparcener inures to the benefit of all, and cannot become adverse without some unequivocal act amounting to an actual disseizin or ouster of the other cotenants.

"Perception of rents and profits by one cotenant, and erecting fences and buildings adopted for the cultivation of the common land, do not amount to a disseizin of the other cotenants: so, it seems, even though the receipt of the rents and profits is accompanied by a claim of title to the whole land . . ."cralaw virtua1aw library

The only acts of the defendant upon the properties in question are reduced to gathering the fruits thereof and building a house or houses on the land. It does not appear that when the plaintiffs demanded of him the partition of said properties, he had told them that he was the sole owner thereof and that they, the plaintiffs, had no right at all therein, or at least that he had made them understand that he had the intention or pretension of taking them as his properties, because it is only from the moment the coheirs had knowledge of the evident intention of their other coheir to exclude them from the inheritance that prescription begins to run and only then that there exists an action for recovery of realty (accion reivindicatoria). Thus in the case of McClung v. Ross (5 Wheat. [U. S. ], 116), the Supreme Court of the United States, speaking through Chief Justice Marshall, said, "But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his cotenant that his possession is adverse, ought not, we think, to be construed into an adverse possession."cralaw virtua1aw library

One of the defendant’s witnesses has mentioned the fact that said defendant was the one paying the land tax of the realty in question (st. note, p. 60), but it is evident that this is not an act adverse to the right of the plaintiffs, who perhaps had no knowledge thereof, although the possessor has at the same time gathered the fruits upon the land (1 Cyc., 1076). It is not sufficient that the acts were for an exclusive ownership; they must be such that they cannot be explained in another manner than that the possessor exercising same does invade and usurp the rights of his coowners (Warfield v. Lindell, 90 Am. Dec., 443).

Taking the evidence together, it does not appear that the defendant’s act upon the land had been of real ouster, i. e., that if among strangers said acts may be sufficient to characterize his possession as adverse, such is not the case in the present suit wherein we are dealing with prescription among coheirs. For it appears that when called upon by the plaintiffs to bring about the partition, the defendant did not deny that the plaintiffs had any right to share in the inheritance. When Basilio Bargayo was asked why they did not institute this action before, he replied that it was because they considered the defendant as their father, since he was their uncle, and they expected him to give them their respective share of the inheritance, and that when they first asked him to make the partition, he (defendant) asked them a postponement, saying that they should leave him then in the possession of the land in order to compensate himself from what he has spent for their grandfather when the latter was, and died, under his (defendant’s) care. All of these show in some way that defendant’s possession was not adverse, i. e., hostile or repugnant to the plaintiff’s right. The same witness, who is one of the plaintiffs, only says that whenever they would ask him for the partition, the defendant did not pay any attention to them, i. e., he limited himself in laying aside the fulfillment of the partition, a conduct which can be explained in various ways. And it is probable that said conduct was simply tolerated by the plaintiffs on account of his being their uncle, and they never thought that by said conduct the defendant was attempting to oust them forever from the inheritance, nor that the defendant would have so intended. In any way, dealing as we do here with the acquisition of a thing by prescription, the evidence must be so clear and conclusive as to establish said prescription without any shadow of doubt. This does not happen in the instant case, for the defendant did not even try to prove that he has expressly or impliedly refused plaintiffs’ right over an aliquot part of the inheritance.

From the foregoing considerations, revoking the appealed judgment, it must be declared as we do declare that the partition of the estate left by Jose Camumot at his death is proper; that all donations received by any of the heirs from said Jose Camumot must be brought into the hereditary estate for collation, including all of the net benefits obtained by the defendant from the said estate; and that to the plaintiffs must be awarded one-half of all of said hereditary estate with its products in accordance with law, without any special findings as to the costs of both instances. So ordered.

Arellano, C.J., Johnson, Araullo, Street. Malcolm and Avanceña, JJ., concur.




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