It is a fact admitted in the evidence of both parties that the spouses Roman Lumain and Filomena Cosare were the owners of the parcels of land Identified as first, second and third parcels in the sixth amended complaint.
The testimonial evidence has established the following facts.
The spouses Roman Lumain and Filomena Cosare and their children Rev. Fr. Felix Lumain and Macario Lumain are dead. This fact is corroborated by the following death certificates:
(a) Exhibit I — death certificate showing that on August 20, 1929 Roman Lumain, husband of Filomena Cosare, was buried in the Catholic Cemetery of Tubigon, Bohol;
(b) Exhibit J — death certificate showing that Filomena Cosare, wife of Roman Lumain, was buried on October 6, 1934 in the Catholic Cemetery of Tubigon, Bohol;
(c) Exhibit K — death certificate showing that Rev. Fr. Felipe Lumain, son of Roman Lumain and Filomena Cosare, was buried on November 3, 1936 in the Catholic Cemetery of Tubigon, Bohol;
(d) Exhibit L — death certificate showing that Macario Lumain, husband of Ceferina Falcon and son of the spouses Roman Lumain and Filomena Cosare, was buried on May 20, 1941 in the Catholic Cemetery of Tubigon, Bohol.
It appears proven at the same time that Ceferina Falcon de Lumain died on June 29, 1953, as shown by Exhibit M.
Several witnesses had declared that the spouses Roman Lumain and Filomena Cosare were possessing as owners and enjoying the products of the three parcels of land described in the complaint; that after their death, it was their two children Rev. Fr. Felipe Lumain and Macario Lumain who succeeded them in the possession of the same property.
Defendant Paraguya disclaims no right over the third parcel of land described in the 6th amended complaint. As a matter of fact, in the course of the trial the Court rendered judgment declaring plaintiff Consolacion Lumain Aparicio owner of said property. This judgment, however, was set aside because plaintiff's counsel manifested that he would present evidence for damages, in connection with this property which, according to plaintiff, had been possessed by defendant Paraguya.
Defendant claims right over the second parcel of land described in the 6th amended complaint, alleging that he had bought it from the late Roman Lumain, the admitted original owner. In support of his contention, defendant offered in evidence Exhibit 7 which is a deed of pacto de retro sale for the sum of P l 70. The parcel of land sold in this document is described as follows:
Por el Noreste linda con el terreno del vendedor, por el Sureste con el de Macario Lumain, por Suroeste con el del vendedor y por el Noroeste con el del mismo vendedor y con el rio Bateria.
If the boundaries of the land mentioned in Exhibit 7 were compared with the boundaries of the second parcel of land described in the 6th amended complaint, one would not hesitate to conclude that this parcel of land described in the complaint is the same property sold to defendant Hipolito Paraguya on August 1, 1928, for the sum of Pl70.00, by means of Exhibit 7.
It is true that vendor Roman Lumain reserved the right to repurchase the property at any time, but in the light of the provisions of Article 1508 of the old Civil Code which is the law applicable to the case, it is obvious that Roman Lumain and his heirs have lost the right to redeem the property. Article 1508 of the old Civil Code provides:
The right referred to in the next preceding article, in default of an express agreement shall endure four years, counted from the date of the contract.
Should there be an agreement, the period shall not exceed ten years.
Although the area of the land mentioned in Exhibit 7 is 13,000 square meters, while the area of the land described as Parcel 2 is 14 ares and 64 centares or 1,464 square meters, we think that this discrepancy is just a result of mistake. Our Supreme Court ruled that the correct boundaries of a land prevail over the discrepancy as regards its area.
We, therefore, conclude that the property described as second parcel of land in the 6th amended complaint belongs to defendant Hipolito Paraguya.
Although Exhibit 7 is a private document we entertain no doubt as to its authenticity established by testimonial evidence of defendant. Moreover, Macario Lumain, son of Roman Lumain, had signed as instrumental witness to this document and if we compared his signature on Exhibit 7 with his signatures on the documents Exhibits C- 1, C-2, C-3, C-4 and C-5 offered in evidence by plaintiff, there would be no doubt that the signature affixed on Exhibit 7 is the authentic signature of Macario Lumain.
In connection with this case, the Court issued on August 7, 1952 the following order (Exh. D):
When this case was called today, Atty. Diosdado R. Delima and Conrado D. Marapao, counsel for the parties, submitted the following agreement:
Comes the undersigned attorney and respectfully proposes for an appointment of a Commissioner of the Court for the following purposes:
1. To localize Parcel II of the Second Amended Complaint under Tax No. 6862 superseded by Tax No. 20836 in the name of Roman Lumain;
2. To localize all the portions in the said parcel which are claimed by Hipolito Paraguya and to make a sketch of the portions showing its relative positions with one another, showing its dimensions in meters, and showing its relative position in relation to the whole parcel;
3. To localize the portion in same parcel which are claimed by Ceferina Falcon and to make a sketch of the said portion showing its dimensions in meters and showing further its relative position in relation to the whole parcel.
The expenses of the Commission of the court to be shared pro rata by Consolacion Lumain Vallesteros, Ceferina Falcon and Hipolito Paraguya.
WHEREFORE, it is respectfully prayed that the above enumerated proposals be granted by the Court and a Commissioner duly appointed to carry out.
Tagbilaran, Bohol, August 7,1952.
(Sgd.) DIOSDADO REYES DELIMA
Attorney for the Plaintiff
I AGREE:
(Sgd.) CONRADO MARAPAO
Attorney for the Defendants
Ceferina Falcon and Hipolito
Paraguya
IN VIEW WHEREOF, the court hereby appoints Mr. Genaro Galon as Commissioner in charge to localize the properties in accordance with the foregoing agreement. Mr. Galon shall submit his report within the period of fifteen days. Before making this localization, Mr. Galon shall notify the attorneys of both parties two weeks in advance.
By agreement of the parties, the trial of this case is hereby postponed until further assignment.
SO ORDERED.
Given in open Court, Tagbilaran, Bohol, August 7, 1952.
(Sgd.) HIPOLITO ALO
Judge, 14th Judicial
District
In compliance with this order, the appointed commissioner Genaro Galon submitted his report (Exhibit E); and attached thereto is the sketch marked Exhibit E-1.
According to the report (Exhibit E), the land covered by tax declaration No. 20836-which is the first parcel of land described in the 6th amended complaint is represented in the sketch Exhibit E-1 by the space enclosed within the black lines. For clarification purposes the Court had marked with letters H, B, A, G and F the portions enclosed within the black lines.The space marked letter C, outside the black lines, represents the land of Macario Lumain, acquired later by defendant Hipolito Paraguya.
Defendant Paraguya offered in evidence Exhibit 5, a deed of pacto de retro sale executed in his favor by the late Macario Lumain on December 6, 1937. This document describes the following parcel of land:
El citado terreno es parte de la Declaracion No. 20836 a nombre de mi difunto padre Roman Lumain y linda por el Noreste con el del vendedor y mide 39.30 metros; por el Sureste finda con el del mismo vendedor y mide 67.90 metros; por el Suroeste linda con la carretera provincial y mide 27.00 metros y por el Noroeste que tiene cinco lados linda con el del mismo vendedor y mide por dichos cinco lados 81-60 metros.
If we linked the land described in Exhibit 5 with Portion A of the sketch Exhibit E-1, which portion, according to the report of Commissioner Galon, was indicated by defendant Paraguya as property belonging to him, we would find that the land described in Exhibit 5 is the same Portion A of the sketch Exhibit E-1, taking into account the length of the sides of Portion A and the length of the sides of the land sold under Exhibit 5. Portion A is precisely the portion claimed by defendant, according to Commissioner's report.
The authenticity of the signature of Macario Lumain on Exhibit 5 has been established by witnesses, and corroborated by documents Exhibits C- 1, C- 2, C-3, C-4 and C-5 offered in evidenced by plaintiff.
The includible conclusion, therefore, is that Portion A of the sketch Exhibit E-1 was bought by defendant Hipolito Paraguya from Macario Lumain. Let us not lose sight of the fact that the land described in Exhibit 5 and Portion A of the sketch Exhibit E-I have Identical descriptions: On the NE is bounded by the land of Macario Lumain which was inherited by him from his father; on the SE by the same vendor Macario Lumain and provincial road; and on the NW by the same vendor. Macario Lumain has also lost the right to repurchase.
The report of the commissioner Exhibit E also states that defendant Hipolito Paraguya claimed to be the owner of Portion B of the sketch Exhibit E-1. During the trial, Hipolito Paraguya maintained that on August 28, 1948 he bought from Raymundo Garduque a parcel of land by means of Exhibit 6- A. This document describes the property as follows:
Este terreno es parte de la Declaracion No. 20836 a nombre del difunto Roman Lumain. Y linda por el Norte, con el del difunto Macario Lumain; por el Este con el del difunto Roman Lumain; por el Sur, con la Carretero Provincial; y por el Oeste, con el del mismo difunto Roman Lumain.
Defendant Paraguya further maintains that Raymundo Garduque had bought this property from Roman Lumain by means of Exhibit 6 which is translated into English in Exhibit 6-1. Exhibit 6-1 describes the property sold by Roman Lumain to Raymundo Garduque as follows:
On the North, it is bounded by the rice field of Macario Lumain which adjoins the parcel of rice field of the vendor; on the East, land of vendor; on the South, is Provincial Road; and on the West, it is bounded by the land of the vendor.
If we link the description of Exhibit 6-1 with the description of Portion B of the sketch Exhibit E-I, there would be no doubt that this Portion B is the same land sold by Roman Lumain to Raymundo Garduque, by means of Exhibit 6, bearing in mind that the boundaries of Portion B tally with the boundaries of the land described in Exhibit 6. We, therefore, conclude that Portion B also belongs to defendant Hipolito Paraguya.
The report of the commissioner Exhibit E reads as follows:
En complimiento a la orden de este Juzgado de fecha 7 de Agosto, 1952 en la causa arriba titulada el que subscribe como commissionado en dicho asunto, previa notificacion por escrito a ambas partes y a sus respectivos Abogados, se contituyo al barrio de Tangnan, Tubigon, Bohol para localizar el terreno bajo declaracion Tax No. 20836 a nombre de Roman Lumain y de las porciones reclamadas por Hipolito Paraguya y Ceferina Falcon Vda. de Lumain, y con asistencia de las partes se prodedio la localizacion de los mismos, de cuyo resultado, tiene la honra de someter a Su Senoria el adjurito croquis con los siguientes:
1. que la porcion limitada con lineas de tinta negra representa el terreno indicado por la demandante Consolacion M. Vallesteros, como terreno de Roman Lumain, bajo declaracion Tax No. 20836.
2. Que la pintada con lapiz encarnado representa la reclamada por Hipolito Paraguya bajo declaraciones Tax Nos. 13497 y 13919 de Hipolito Paraguya.
3. Que la pintada con lapiz azul, representation el terreno reclamado por Ceferino Falcon Vda. de Lumain.
4. Que la manchada con puntitos de lapiz azul, representa la porcion reclamada por Hipolito Paraguya, que segun el lo adquirio de Pelagio Torrefranca.
5. Que la porcion comprendida entre lineas de tinta negra angulos, A, B y C, representation el terreno descrito en la declaracion Tax No. 6862 en nombre de Roman Lumain de Acuerdo con su croquis correspondiente.
Es todo lo que al que subscribe puede informar a Su Senoria para su consideracion y efectos procedentes.
Respetuosamente sometido.
Tagbilaran, Bohol. 22 de Septiembre, 1952.
(Fdo.) GENARO GALON
Commisionado'
Defendant Hipolito Paraguya claims right over portion G of the Sketch Exhibit E-1, which portion is within the space enclosed within the black lines of the sketch Exhibit E-1.
Hipolito Paraguya maintains that he had bought this Portion G from Pelagio Torrefranca by means of a document which was lost. He offered, however, in evidence Exhibits 8 and 9, statements of the sister and brother of the deceased Pelagio Torrefranca to the effect that the latter had sold a parcel of land to Hipolito Paraguya.
But if we examine the sketch Exhibit E-1 we will find that the land of Pelagio Torrefranca is outside the land of Roman Lumain enclosed within the black lines. The land of Pelagio Torrefranca is even intercepted by other lands belonging to Juan Acidillo and Valerio Roba. If we also examine the plan Exhibit 1 1 of the land of Roman Lumain sureyed by a survevor, we will find that the land of Roman Lumain is bounded on the North by Valerio Roba and Jorge Acidillo. The land of Pelagio Torrefranca is not mentioned and possibly it is on the North of the lands of Valerio Roba and Jorge Acidillo.
Consequently, the land bought by defendant Hipolito Paraguya from Pelagio Torrefranca is outside the land of Roman Lumain described in the plan Exhibit 11. It must not be forgotten that this plan was offered in evidence by defendant.
In the light of the foregoing, we conclude that out of the first parcel of land described in the 6th amended complaint defendant had only acquired Portions A and B described in the plan Exhibit E-1.
We do not overlook the fact that Macario Lumain, as co-owner of the first parcel of land described in the 6th amended complaint could not select any portion thereof as his own, as long, as there was no actual partition of the property. We believe, however, that it would be more advantageous to the plaintiff to disregard this procedure, since a partition would be more costly for her, for in such case defendant would claim reimbursements for necessary and useful expenses. Moreover, the sales took place almost 10 years before the filing of the complaint, and it would be unjust for defendant Paraguya to suffer the adverse effects of the laches committed by plaintiff.
Plaintiff maintains that she is entitled to inherit the property of the deceased Rev. Fr. Felipe Lumain on the ground that she had been recognized as daughter of the latter in his testament Exhibit A-1 which has been duly probated by this Court and the Court of Appeals, as shown from Exhibit A- 2.
Defendant, on the other hand, maintains that plaintiff is not entitled to inherit the property of the deceased Rev. Fr. Felipe Lumain for the reason that she is an adulterous child. He further maintains that the acknowledgment of plaintiff by the late Fr. Felipe Lumain is null and void she being not a natural child of the latter. In support of this contention, defendant offered in evidence Exhibit 2 which is the marriage certificate of Anastacio Mamburao and Trinidad Montilde, mother of plaintiff. According to this certificate, the marriage of both spouses took place on March 4, 1924. Defendant also offered in evidence Exhibit I showing that plaintiff was born on September 12, 1924. Taking into account both documents, it can be said that plaintiff was born six months after her mother's marriage to Anastacio Mamburao. During the trial Trinidad Montilde declared that she had never lived together with her husband and at present the latter is living with another woman.
Bearing in mind the date of the birth of plaintiff, it is evident that her mother Trinidad Montilde was still single at the time she was conceived. It is a legal presumption that plaintiff is the daughter of the spouses Anastacio Mamburao and Trinidad Montilde, but bearing in mind that this presumption is disputable and was successfully overcome by Trinidad Montilde, plaintiff's mother, we find no other avenue than to declare that plaintiff is a natural child of the late Rev. Fr. Felipe Lumain. Consequently, she can be acknowledged by the latter as his own child.
But in the remote possibility that plaintiff is not a natural child of the deceased Fr. Felipe Lumain, we still maintain that, under the latter's will (Exhibit A-1), she is entitled to claim the disputed property, she having been instituted in the will as universal heir. This document contains the following provisions:
4. — Dono tambien a la mencionada nina, Consolacion M. Lumain, mi homestead consistentente en una parcela de terreno de 24 hect. situada en el barrio de Calatrava, Carmen, Bohol, con todas sus mejoras; todas Acciones e interesesen la JAGNA ELECTRIC SERVICE CO., Jagna Bohol; todos los bienes muebles e inmuebles que me corespondan de la herencia de mis padres; y todoes los bienes e intereses que yo consiga en lo futuro (The following words are written in pencil without initial of the testator: Estoy asegurado por la Insular Life Assurance Co. en la cantidad de Dos Mil Pesos, y la beneficiaria de mi Poliza es la misma consolacion.)
Is plaintiff entitled to claim the entire first parcel of land described in the 6th amended complaint? Let us not forget that the spouses Roman Lumain and Filomena Cosare died leaving two legitimate children: Rev. Fr. Felipe Lumain and Macario Lumain. Let us not either forget that Fr. Lumain died ahead of Macario Lumain. Under the circumstances, therefore, Fr. Lumain did not become the owner of the share of Macario Lumain, he having died ahead of the latter. Macario Lumain could not either inherit the share of his brother, because the latter had instituted the plaintiff as his legal heir. Plaintiff, on the other hand, cannot inherit the property of the deceased Macario Lumain in view of the following provisions of Article 943 of the old Civil Code:
A natural or a legitimated child has no right to succeed ab intestate the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural or legitimated child.
In the light of the foregoing, it is obvious that, after the death of Fr. Felipe Lumain, plaintiff and Macario Lumain became co-owners of all the properties left by their deceased parents. Consequently, plaintiff is only an owner of one-half (1/2) undivided share of said properties and the remaining undivided half belongs to the heirs of the late Macario Lumain who took no intervention in this case. And because of this fact, the Court can not render a judgment determining the ownership of the property in question, on account of the fact that the heirs of the deceased Macario Lumain are not parties to this case.
Considering, nevertheless, that a co-owner can file an action to recover the possession of a property from any stranger, the Court believes that this aspect can be determined by the Court in its judgment.
It appears from the record that plaintiff was exempted from payment of legal fees on account of her alleged poverty. But it appears from the evidence that she is not a pauper, she having several properties not involved in the present action. She shall therefore, be sentenced to pay the Court the docketing fees and all other legal expenses.
Plaintiff's evidence regarding damages is insufficient, for the reason that this court can not determine exactly the source of those damages. As may be seen from this decision, plaintiff had filed six complaints and had been changing the lands she was claiming, as well as the defendants, thus showing that she had filed at random her actions. Because of this, the Court cannot determine what property shall be the basis of damages and who are the persons liable. 8
