NICASIO CABELLO ET AL., PLAINTIFFS AND APPELLEES, VS. ENGRACIA CABELLO ET AL., DEFENDANTS. ENGRACIA CABELLO, BUENAVENTURA CABANSAG, AND ARISTON CABELLO, APPELLANTS.

TORRES, J.:

By a written complaint of April 16, 1913, subsequently twice amended, counsel
for the brother and sisters, Nicasio, Juana and Petronila, all surnamed Cabello,
filed suit in the Court of First Instance of Ilocos Sur, against their aunt
Engracia Cabello, and alleged that they were grand-children of Pedro Cabello,
who died intestate in 1860, leaving pro indiviso five parcels of land,
described in paragraph 2 of the complaint; that, as such relatives of the said
Pedro Cabello, they were his forced heirs in concurrence with their aunt, the
defendant Engracia Cabello, a daughter of their grandfather, Pedro Cabello;
that, after the latter’s death, his children, among them the plaintiffs’ father,
continued in the possession of said parcels of land, but that upon the death of
the brothers and sister of the defendant Engracia without leaving any lawful
heir except one Lorenzo, who died intestate and was survived by the three
children who are the herein plaintiffs, said defendant Engracia, in 1894,
appropriated for herself all the lands constituting the hereditary estate of
Pedro Cabello, under promise to deliver to the plaintiffs in money the
equivalence of the products of the lands that belonged to them, which promise
the defendant had not fulfilled up to the time of the filing of the complaint;
that the lands in question yielded a net, annual income of P200; and that,
notwithstanding the several demands made by the plaintiffs upon this defendant
to deliver to them the total amount of their share of the net profits derived
from said real estate, she had refused so to do, thereby causing them other
damages estimated at P300. Said counsel therefore asked that judgment be
rendered—(a) holding the plaintiffs to be entitled to one-half of the
estate left by their grandfather, Pedro Cabello; (b) ordering said
defendant to pay the plaintiffs the sum of P628, the total value of the
uncollected share of the products which should belong to them; (c)
ordering the partition of the property in litigation; and, (d),
ordering the defendant also to pay the plaintiffs the sum of P300 for losses and
damages caused them, and to pay the costs of the trial.

Engracia Cabello made a general and specific denial of all the allegations
contained in the complaint, and in special defense alleged that the estate left
by her father Pedro Cabello had already been partitioned among his heirs, more
than 30 years ago; that the land described under the letter (c) in
paragraph 2 of the complaint, belonged to her absolutely and exclusively and was
then in her possession, as she had inherited it from her father; that, besides
the said parcel of land (c) claimed by her, she had no interest in any
of the other real estate described in the complaint; and that by the present
complaint she had incurred losses and damages amounting to P150. She therefore
requested to be absolved from the complaint, and that the plaintiffs be ordered
to pay P150 for losses and damages, and
also the costs.

On October 27, 1913, the case was heard. Three witnesses testified for the
plaintiff. The defendant Engracia Cabello was a witness in her own behalf. Both
litigating parties were represented by their respective counsels. The plaintiffs
introduced evidence to prove that they were the children and sole heirs of
Lorenzo Cabello; that the latter was the son of Pedro Cabello whose other
children were Simon Cabello, Regina Cabello, and the defendant Engracia Cabello;
that Lorenzo died first, then Regina, and afterwards, about the month of August,
1912, Simon, all of whom, except Lorenzo, died intestate and without any forced
heir; that the plaintiffs, are Lorenzo’s heirs; and that the defendant Engracia
Cabello, the plaintiffs’ aunt of full blood, is the only surviving daughter of
Pedro Cabello.

From the evidence adduced by the plaintiffs it was also shown that said Pedro
Cabello died intestate, leaving to his children four undivided parcels of land
which had an annual yield of 5 uyones of rice and were held pro
indiviso by these children, who divided their products among themselves;
that in 1894 the defendant Engracia stipulated with the plaintiffs that she
would take possession of the lands which might pertain to them but that such
possession was conditional on her making delivery to them annually of the
equivalence in cash of the plaintiffs’ share of the crop, which condition the
defendant Engracia did not fulfil, but, instead, kept for herself all the
property derived from Pedro Cabello from the time of the death of the last of
his children, Simon Cabello, who died in 1912.

The defendant Engracia Cabello testified that the land in Orense, pueblo of
Narvacan, specified under letter (a) in the complaint, was then held by
the plaintiffs themselves; that the lot with the house standing on. it, in the
same barrio of Orense, Narvacan, designated in the complaint by the letters
(b) and (c), belonged to her brother Simon Cabello, who, while
still living, had conveyed it to Buenaventura Cabansag, as a gift; that the
sementera or rice field in the barrio of Dasay of the same pueblo of
Narvacan—land mentioned under letter (d) of the complaint—also belonged
to Simon Cabello, who likewise conveyed it to Josefa Cabral, as a gift, and that
the latter was then in possession thereof; and that the land described in the
complaint, under letter (e) was in her possession, for the reason that
it was allotted to her in the extra-judicial distribution made of the property
of the estate left by her father, Pedro Cabello (record, pp. 22-23). It is to be
noted, however, that, as the predecessor in interest Pedro Cabello left only
four parcels of land, one of them would correspond to each of his four children;
but the defendant Engracia testified that the lands designated in the complaint
by the letters (b) and (d) and which are those donated to
Buenaventura Cabansag and Josefa Cabral, respectively, were inherited by her
brother Simon from his father Pedro Cabello. This explanation on the derivation
of the title to the lands now held by said donees is not very satisfactory.

In view of the evidence produced at the trial and of the fact that two of the
disputed parcels of land were in the possession of other persons, the court, by
an order of October 27, 1913, directed the plaintiffs to amend their complaint
by including therein as defendants Buenaventura Cabansag and Josefa Cabral. The
plaintiffs therefore filed a new complaint in which said Josefa Cabral and
Buenaventura Cabansag, together with the latter’s husband, Ariston Cabello,
appeared as defendants.

The defendant Josefa Cabral, in answer to the amended complaint, alleged that
she had no interest whatever in any of the real properties in question, also
that she had acquired no land at all from the deceased Simon Cabello. The other
defendants, Engracia Cabello, and the spouses Ariston Cabello and Buenaventura
Cabansag, filed a general denial of all the allegations of the amended
complaint, and in special defense alleged that they were unacquainted with the
lands claimed in the complaint, but that if the plaintiffs referred to, and
claimed (a) the sementera situated in the barrio of Maruzo,
(b) the sementera in the barrio of San Pablo, (c) the
vegetable garden located in the barrio of Orense, (d) the lot situated
in the same barrio, and (e) the house built on said lot, all within the
district of the town of Narvacan, Ilocos Sur, then they would allege that said
properties all belong exclusively to Buenaventura Cabansag by reason of her
having acquired them by gift from Simon Cabello y Cabanit, who inherited them
from his father Pedro Cabello, with the exception of the lot and house
designated by the letters (d) and (e), which exclusively
belonged to her; that said properties had been the subject of an extra-judicial
partition made among the heirs of said Pedro Cabello more than 30 years ago, by
virtue of which partition Lorenzo Cabello, plaintiffs’ father, received as his
hereditary share four parcels of land (more specifically described in paragraph
5 of said written answer) ; that the first and second of said parcels were held
by the plaintiffs, and the third and fourth parcels, by Fetronilo Cabebe and
Isidora Viloria, respectively, as having acquired them by purchase from their
former owner, Lorenzo Cabello, plaintiffs’ predecessor in interest, a long time
prior to his death. The defendants, therefore, asked that they be absolved from
the complaint, with the costs against the plaintiffs.

Upon a rehearing of the case, notice having been given and appearance made by
counsel for both parties, two witnesses for the plaintiffs testified that the
lot and house described in the complaint under the letters (b) and
(c) belonged to the undistributed estate left by Pedro Cabello, said
house and lot having been occupied by the latter’s son, Simon Cabello, although
the house was kept in repair by the children of Pedro Cabello, which latter, now
deceased, occupied while living the house erected on said lot and this property
still remained undivided among the heirs of Pedro Cabello. After the
cross-examination of these witnesses by counsel for the defendants and the
determination of the introduction of evidence by the plaintiffs, said counsel,
in representation of the aforesaid defendants, waived his right to present
evidence in support of the allegations contained in his answer.

On December 8, 1913, the court rendered judgment in which he held that the
estate left by Pedro Cabello at his death had not yet been distributed among his
heirs and was now in the possession of the defendant Engracia Cabello, and that
the property described in her answer and which is alleged to have been donated
to Buenaventura Cabansag by Simon Cabello, is not the property claimed in the
complaint. The court, besides, found no proof of the defendant’s averment that
said Simon Cabello had also donated another parcel of land to Josef a Cabral,
for such alleged donation was denied by the latter. The court, therefore, held
that the plaintiffs—the heirs of Lorenzo Cabello, who was a brother of Engracia
Cabello—are entitled, jointly with their aunt Engracia Cabello, to a share of
the undivided estate left by their common predecessor in interest. In compliance
with the order contained in the aforementioned judgment, the commissioners
appointed for the purpose presented to the court a proposed scheme of partition
of the estate, which was approved by the judgment of August 28, 1915, by which
the plaintiffs were awarded one-half of the estate left by their grandfather,
Pedro Cabello, and the other one-half of it, to the latter’s daughter, Engracia
Cabello, who is the plaintiffs’ aunt.

From this judgment of December 8, 1913, and the order approving the proposed
scheme of partition of the estate in question, an appeal was taken to this court
by the defendants Engracia Cabello, Buenaventura Cabansag, and the latter’s
husband, Ariston Cabello. Josefa Cabral acquiesced in both said judgment and
order, as being just and lawful.

The defendants and appellants alleged that the trial court erred, in taking
into account, as evidence presented against the defendants, that taken at the
hearing of October 27, 1913, and which was produced solely against the then
defendant Engracia Cabello, the testimony of the two new witnesses presented at
the second hearing being insufficient to prove the allegations of the complaint
against all the present defendants; and that the lower court also erred in not
according due weight to the plea of prescription set up by the defendants,
inasmuch as, for 18 years, from 1894 to 1913, Engracia Cabello had been in
adverse possession of the lands in litigation.

When the interested parties who may be seriously affected by the decision of
a suit, having been duly summoned, intervene therein, and take part in the
proceedings at any stage thereof, and their counsel assumes the duty to inform
himself of the proceedings had up to that time and of the pleadings made by the
other parties, and, if evidence of the results thereof has already been
introduced, and there was no express petition by the party in interest nor a
previous order of the trial judge, they are not entitled to expect a repetition
of the evidence already taken, for the party who preferred not to avail himself
of his right must be reputed and held to conform to the status of the case and
to the results and merits of the same.

The new defendants Buenaventura Cabansag and her husband Ariston Cabello
entered their appearance in court, answered the complaint and in their answer
raised questions which they submitted to the decision of the court; the
defendants’ counsel took part in the hearing, cross- examined the plaintiffs’
new witnesses and had full and ample opportunity to defend his clients and prove
the pleas that he had made, though he waived his right to present proofs,
perhaps because he had none (rec, p. 39).

The provisions of articles 109 and 110 of the Code of Civil Procedure
authorize the court, should he deem it necessary, to order the amendment of any
pleading during or after the trial so that it may be in accord with the proof,
or for the purpose of correcting errors which do not affect the essential rights
of the parties, or for any other just and lawful purpose. The Supreme Court of
Montana, in the case of Merrill vs. Miller (28 Mont., 134), held that:
“It was not error for the court to permit an amendment to the complaint, after
denial of a motion for nonsuit on plaintiff’s evidence and before judgment,
where no hardship or surprise to defendant was shown, and where no change of the
issue resulted.”

In the case of Morrissey vs. Faucett (28 Wash., 52) the Supreme
Court of the State of Washington held that, “the action of the court in
permitting plaintiff at the close of the testimony to amend her complaint so as
to correspond to the proof was not error, where defendant’s answer theretofore
filed had negatived the truth of the matters set up in the amendment and
evidence upon both sides had been directed to that issue.”

The Supreme Court of Colorado, in the case of Jordan vs. Greig (33
Colo., 360), decided that the court was authorized, and it was not error, to
allow the plaintiff, after the hearing of the evidence in a case, to file an
amended complaint, and for the court further to order the reopening of the case
for the taking of such additional evidence as the parties might desire to
present; and that, “the bringing into an action of a new and additional party
defendant by an amended complaint is not reversible error where the new
defendant made no objection, and the original defendants failed to show that
they were in any way injured or prejudiced thereby.”

From the foregoing it is evident that the rights of the new defendants in
this action have in no manner been prejudiced, for the case was reopened and
they had every opportunity to defend themselves and to adduce proof, had they
wished so to do. It is also to be noted that they were represented by the same
attorney who represented the original defendant Engracia Cabello.

With respect to the prescription alleged by the defendant party on account of
Engracia Cabello having been in material and adverse possession of the litigated
properties from 1894 to 1913 when the complaint was filed, that is, for a period
of 18 years, it is well known that among co-heirs the action to demand the
division of the inheritance does not prescribe, as provided by article 1965 of
the Civil Code, since the possession held by a coheir of the undivided estate is
understood to be enjoyed in the name of the rest of the heirs.

For the foregoing reasons, whereby the errors assigned to the judgment
appealed from are deemed to have been refuted, and said judgment being in accord
with the law and the evidence of record, they should be, as they are hereby,
affirmed, with the costs of this instance against the appellants. So
ordered.

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