PEDRO VERGARA ET AL., PLAINTIFFS AND APPELLEES, VS. MARIANO LACIAPAG, DEFENDANT AND APPELLANT.

This was an action commenced in the Court of First Instance of the Province
of La Union, by the plaintiffs against the defendant, for the purpose of
recovering the possession of and damages for the illegal possession of a small
parcel of land located in the barrio of Santa Teresa, town of Tubao, Province of
La Union, and which is described by metes and bounds in the first paragraph of
the complaint. The plaintiffs allege that the defendant illegally and forcibly
took possession of said parcel of land in the month of October, 1904, and that
by reason of said illegal possession on the part of the defendant, they have
suffered damages in the amount of P350.

After hearing the evidence, the honorable Richard Campbell, judge, found that
the defendant had illegally dispossessed the plaintiffs of their possession of
the property in question and rendered a judgment, adjudging the possession of
the land in question to the plaintiffs, with costs against the defendant. The
lower court made no finding whatever concerning the damages prayed for by the
plaintiffs. From that judgment the defendant appealed to this court and made the
following assignments of error:

“I. The lower court erred in setting aside its judgment of August 4, 1911,
and ordering that the case be reopened.

“II. The lower court erred in rendering judgment in favor of the plaintiffs
and against the defendant, by adjudicating the possession of the land to the
former on the ground that the instrument of gift executed propter
nuptias on June 18, 1876, by Hermenegildo Laciapag in favor of Vicente
Laciapag, was valid.

“III. The lower court erred in holding that the gift made by Hermenegildo
Laciapag to the defendant Mariano Laciapag in a public document was null and
void.”

From an examination of the record, the following facts seem to be proven,
beyond question:

First. That for a long time prior to the 18th day of June, 1876, the land in
question had belonged to Hermenegildo Laciapag and his wife.

Second. That during the marriage of the said Hermenegildo Laciapag with his
wife, they had three children, to wit, Mariano Laciapag, Froilan Laciapag, and
Vicente Laciapag.

Third. That upon the marriage of each of the said children, Hermenegildo
Laciapag and his wife, by a “donation propter nuptias,” gave to each of them a
certain parcel of land; that Vicente was married on the 18th day of June, 1876,
to Vicenta Madarang; that during the marriage of Vicente Laciapag and Vicenta
Madarang there was born to them one child, the said plaintiff, Juana Laciapag;
that Vicente Laciapag and his wife entered upon the possession of the land in
question and occupied the same up to 1898 or 1899, when Vicente Laciapag died,
leaving his wife and his daughter, the said Juana Laciapag, surviving him; that
after the death of Vicente Laciapag, his wife, desiring to return to her
parents, turned the possession of the land in question over to her
father-in-law, Hermenegildo Laciapag and her child, Juana; that later Juana
Laciapag was married to the plaintiff Modesto Surio; that upon the marriage of
Juana Laciapag and Modesto Surio, her grandfather, Hermenegildo Laciapag,
delivered the land to her and to her husjband; that upon the 22d day of July,
1904, the said Juana Laciapag and her husband, Modesto Surio, together with
Vicenta Madarang, sold the land in question to the plaintiff, Pedro Vergara, by
means of a private document and delivered the possession of the said land to the
vendee; that the vendee, Pedro Vergara, took possession of the land in the month
of June, 1904, and continued in the possession thereof until the month of
October of the same year, when the defendant Mariano Laciapag appeared and
compelled Pedro Vergara to cede to him one-half of the land in question ; that
later, or some time in the year 1907, the defendant, Mariano Laciapag, by force
and threats took possession of the other one-half of the land and ousted the
said PedroVergara from the possession thereof.

With reference to the first assignment of error, it appears from the record
that on the 4th day of August, 1911, after having heard the evidence, the lower
court rendered a judgment in favor of the defendant and against the plaintiffs,
and adjudged the right of possession of the land in question to the defendant,
taxing the costs against the plaintiffs. Immediately the plaintiffs made a
motion for a rehearing, which was granted by the lower court on the 7th day of
August, 1911. At the close of the rehearing, and on the 19th day of March, 1912,
the lower court rendered a new decision in which he decided that the land in
question belonged to the plaintiffs and ordered the defendant to deliver the
possession of the same to them, with costs against the defendant. The:
defendant-appellant, as his first assignment of error, says that the lower court
committed an error in granting the new trial. In reply to that argument, the
appellees allege that no error was committed and cite the provisions of sections
145 and 146 of the Code of Procedure in Civil Actions. Said section 145 provides
the circumstances under which a new trial may be granted. Section 146 provides
the method of procedure in applications for a new trial. Section 146 provides
that the overruling or granting of a motion for a new trial shall not be the
ground of an exception, but shall be deemed to have been an act of
discretion on the part of the judge, within the meaning of the second sentence
of section 141. Said section 146 further provides, however, that if the motion
for a new trial was made on the ground that the evidence was
insufficient to justify the decision, an exception may be
taken to the order overruling such motion, and such exception may be reviewed by
the Supreme Court as in-other cases. An examination of the record fails to
disclose the fact that the defendant appellant made any exception to the ruling
of the lower court granting a new trial. We have frequently decided that no
objection to the procedure in the lower court will be considered here unless an
objection or exception was made or taken in the lower court. The only exception
to this rule is one where the jurisdiction of the lower court is involved. The
defendant-appellant not having laid a foundation for his first assignment of
error it can not be considered here. (Andrews vs. Morente, 9 Phil.
Rep., 634; Guerrero vs. Singson, 19 Phil. Rep., 122.)

We think that the second and third assignments of error may be discussed
together. The appellant attempts by said assignments of error, to show that the
appellees are not the owners, in fact, of the parcel of land in question. That
may be true. The question of ownership, however, was not the question presented
to the lower court. The only question presented was whether or not the
plaintiffs were entitled to the possession as against the defendant. The lower
court found from the evidence, that the defendant had by force deprived the
plaintiffs of the possession of the property. If that is true, then the
plaintiffs are entitled to be repossessed of the same, even though the defendant
is, in fact, the owner.

If the defendant had any right or title to the possession of the land in
question, at the time he dispossessed the plaintiffs, or at any other time, it
was his duty to commence an action in the courts for the purpose of establishing
that right. He had no right, even though he was the real owner of the property
in question, to forcibly take possession of the land and eject the occupants.
The arbitrary use of might exercised by the defendant, under the mere shadow of
right, cannot be tolerated by the courts. (Tambunting vs. City of
Manila, 5 Phil. Rep., 590.) Parties in the peaceable and quiet possession of
land cannot be ejected, except by judicial proceedings. If the possessor is
forcibly ejected, he may be replaced in possession of the property in a proper
action brought for that purpose. (Villar vs. City of Manila, 6 Phil
Rep., 655.) A tenant even, who has been unlawfully and forcibly ejected from the
possession of land by his landlord, without judicial proceedings, is entitled to
be repossessed of the property in a proper action brought for that purpose.

The appellant, in the second assignment of error, alleges that the donation
of Hermenegildo Laciapag and his wife to Vicente Laciapag, on the occasion of
his marriage with Vicenta Madarang, on the 18th of June, 1876, was void, for the
reason that it had not been executed in accordance with the laws in force at
that time. (Title 4, Law 9, of the Fifth Partida.) The appellee admits that
perhaps said donation did not comply with all the requisites of a donation
required by the law at that time. The donor, however, permitted the donee and
his wife to enter into possession of the property on the day of their marriage
and to continue to live there and occupy the same as owners, until the year 1898
or 1899, when Vicente Laciapag died, and the possession of the property was
returned to the donor, for the reason that Vicente’s wife desired to return to
her parents. In 1904 the possession of the property was returned to Juana
Laciapag, on the occasion of her marriage to Modesto Surio. The return of the
property by the donor to the surviving successor of Vicente Laciapag (Juana
Laciapag) would seem to be a clear additional ratification of the original
donation. Admitting that the donation of the 18th of June, 1876, had not
complied absolutely with the formal requisites under the law, it would seem,
from the fact that the donor permitted the donee to continue in the possession
of said parcel of land for a period of twenty-three or twenty-four years, and
that he later recognized the rights of the legitimate successor of the donee
(1904), that he intended and did, in fact, give the title of the land in
question to Vicente Laciapag. It will be remembered that Juana Laciapag and her
husband, Modesto Surio, and the wife of Vicente Laciapag, Vicenta Madarang, sold
the land in question to the plaintiff, Pedro Vergara and delivered the
possession to him in the month of June, 1904. It will be remembered also that
three years later (1907) the defendant, by force and intimidation, deprived the
said Pedro Vergara of his possession of the property in question. The record
shows that a period of about thirty-one years elapsed after the original
donation to Vicente Laciapag before the defendant attempted to recover, by
force, the possession of the land. Even granting that the defendant had a right
to raise the question of ownership in an action solely for the possession of
property, by one who had been forcibly ejected from the same, we are of the
opinion that, even upon that theory, considering all of the facts in the record,
that the judgment of the court below should be affirmed.

In the third assignment of error the appellant alleges that the lower court
committed an error in deciding that the donation made by Hermenegildo Laciapag
to the defendant in February, 1907, was void. If the appellant believed that the
land belonged to him, he should have brought an ordinary action for the purpose
of settling that question. He had no right to forcibly possess himself of the
land. If Hermenegildo Laciapag had, in fact, given the land in question
thirty-one years before to Vicente Laciapag, he certainly had nothing to donate
to the defendant in 1907, concerning the land in question. We believe that we
have answered the contention of the appellant in the argument relating to the
second assignment of error.

After carefully considering the facts presented to the lower court, and the
law applicable thereto, we are of the opinion that no error was committed by the
lower court. The judgment of the lower court is, therefore, hereby affirmed,
with costs.

Arellano, C. J., Torres and Araullo, JJ., concur.

Moreland, J., concurs in the result.