QUINTIN DE BORJA, JUDICIAL ADMINISTRATOR OF THE INTESTATE OF THE DECEASED, MARCELO DE BORJA, PLAINTIFF AND APPELLANT, VS. FRANCISCO DE BORJA, DEFENDANT AND APPELLEE.

This is an appeal from a decision of the Court of First Instance of Nueva Ecija in an action of reivindicacion.

On the 15th of November, 1929, Quintin de Borja, as administrator of
the estate of his deceased father, Marcelo de Borja, filed suit in the
said court against his brother, Francisco de Borja, in which it is
alleged, in substance, that Marcelo de Borja, in the year 1909,
purchased from Hermogena Romero for a consideration of P5,000, two
parcels of land situated in the municipality of Santa Rosa, Province of
Nueva Ecija. The first contained 22 hectares, 30 ares and 25 centiares
more or less, and the second, 9 hectares, 94 ares and 54 centiares;
that at that time Marcelo de Borja resided in the municipality of
Pateros, in the Province of Rizal; that his son Francisco resided in
the municipality of Santa Rosa aforesaid and as Marcelo de Borja could
not give personal attention to his lands in the Province of Nueva
Ecija, he confided his interests to said son Francisco and recognized
him as his representative and trustee in the administration of his
properties in said province, including the two tracts of land purchased
from Hermogena Romero; that Francisco de Borja accounted to his father
for the rents and profits of said lands until the year 1922; that
Marcelo de Borja died at his home in Rizal on the 12th of June, 1922,
since when the defendant Francisco de Borja has refused to render any
accounts to the plaintiff as administrator of the estate of the
deceased Marcelo de Borja notwithstanding repeated demands; that it was
not until the year 1924 that the plaintiff learned that the defendant
Francisco claimed said lands as his exclusive property. The petition
prays for a judgment declaring that said lands are the exclusive
property of the estate of the deceased Marcelo de Borja, and further
prays for possession and a judgment for P51,600 as damages for the
wrongful detention.

The defendant filed a general denial and a special defense, namely, that the cause of action has prescribed.

The defendant claims that he bought the land in question from Hermogena
Romero in 1909, acting for himself and not for his father; that the
deed which Hermogena Romero signed named him as the grantee and he paid
the purchase price of P4,000 with his own money.

Neither the
plaintiff nor the defendant produced any deed from Hermogena Romero.
That Hermogena Romero actually sold the land in 1909 is unquestioned.
Who was the grantee named in the deed of sale? She was 71 years of age
when she testified in this case in 1931. Although she testified that
she sold the land to Francisco de Borja, her testimony is not
inconsistent with the theory of the plaintiff that Francisco was the
agent of his father. Moreover, at her advanced age and after the lapse
of twenty-two years, it is quite possible that she might be confused as
to the details of the transaction in other respects as she was with
reference to the time and place when she received the purchase price.
She testified that she received P3,000 from Francisco’s wife in the
house of the latter’s father who was present and witnessed the payment
and gave her “algunos nuevos baluts“. It is established in
the record that the old man, Francisco’s father-in-law, died on January
10, 1905, in other words, four years before the transaction to which
Hermogena testified took place. The testimony of Francisco de Borja
that he paid said P3,000 with money which he kept in a box in the house
of his father-in-law, Mariano Tangco, in Pateros, Rizal, in the year
1909, must be rejected for the reason that his father-in-law at that
time had been dead four years or more.

As against the
testimony of Hermogena Romero and the defendant, we are more inclined
to accept the testimony of Quintin de Borja, Juliana de Borja, and
Crisanta de Borja to the effect that Hermogena Romero was in Pateros,
Rizal, in the house of Marcelo de Borja some three times in the year
1909 in relation to the sale of the lands here in question; that after
they agreed upon the purchase price of P5,000, this sum was paid to
Hermogena by Marcelo de Borja in his house, there being present besides
Marcelo de Borja and Hermogena Romero, the plaintiff Quintin, his
sister Juliana and the justice of the peace and notary public of
Pateros, Esteban Quiogue; that the deed was signed by both Hermogena
and Marcelo then and there; that P2,000 of the P5,000 was taken from
the “camarin” of the rice mill of the Borja partnership by Quintin de
Borja by order of his father (t. s. n., pp. 99-101, 103-104, 131-137,
152-155, 185-187).

The said deed is lost. But it appears
from the testimony of Quintin de Borja (t. s. n., 105) that in 1912
Marcelo de Borja wished to obtain a Torrens title to said lands and
asked his son, the defendant, to make application; that the said son
Francisco de Borja asked his father for the deed because the title
could not be registered without presenting the document; and thereupon
the deed was sent to Francisco de Borja together with other deeds
relating to other lands. It appears, however, that although the other
lands were registered in the name of Marcelo de Borja by Francisco, the
land purchased from Hermogena was not; nor was the deed returned by
Francisco to his father. He told his father that the lands here in
question were included in the certificates issued to contiguous lands
(t. s. n., 106). Francisco now denies having ever received the deed.

The deed under which Francisco claims for himself is alleged to be lost. As to this, the defendant testified as follows:

“P.
¿Y usted dice que despues de aquella inundation o crecida de agua, ya
desaparecio el documento que habia traido Doña Hermogena Romero
referente a dichas dos parcelas de terreno?—R. No solamente aquel
documento sino otros tambien se han perdido, aunque me figuro que fue
mi padre quien los recogio porque el tenia la llave.” and also as
follows:

“R. Los documentos que se quedaron aqui no se
perdieron, pero los que se llevaron a Pateros desaparecieron, inclusive
un titulo de un terreno mio donde esta instalada la fabrica de tinajas,
y cuyos documentos me figuro que deberian estar en poder de mi padre, y
como ahora tenemos administrador, deberian estar en poder de ese
administrador que es mi hermano Quintin de Borja.” There is no evidence
in the record that the defendant made any effort to produce the alleged
deed or any copy thereof. Section 321 of the Code of Civil Procedure
reads as follows:

“Secondary evidence of the contents of a lost writing.—An
original writing must be produced and proved, except as otherwise
provided in this Act. If it has been lost, proof of the loss must first
be made before evidence can be given of its contents. Upon such proof
being made, together with proof of the execution of the writing, its
contents may be proved by a copy or by a recital of its contents in
some authentic document, or by the recollection of a witness.” The
proof of the disappearance of the alleged deed to Francisco de Borja is
far from convincing, if the said deed ever existed. We are constrained
under section 321 aforesaid to exclude the oral evidence of its
contents, because the predicate for the introduction of secondary
evidence is not established. (Cf. E. Michael & Co. vs. Enriquez, 33 Phil., 87.)

We think it well established by the preponderance of the evidence that
the defendant Francisco was at all times mentioned in the petition,
that is to say from 1909 to the year 1922, the agent and trustee of his
father in the management of the lands embraced in this suit together
with other lands in the Province of Nueva Ecija (t. s. n., 159-181,
189-207, 211-217, 220, 234-241; Exhibit X-2, Exhibit 1-1 and Exhibit
1-5). As such, he could not acquire title by prescription because his
possession was not adverse.

It is admitted in the amended
complaint that the defendant, as such agent and trustee, rendered due
account and made settlement with Marcelo de Borja of the rents and
profits of said lands up to the year 1922. Since said date he has
refused to render any account or make any payments. It remains,
therefore, to be determined what damages the plaintiff is entitled to
for the years succeeding 1922 to date. After a careful examination of
the entire record both in civil case No. 4709 and in civil case No.
5444, we have found it impossible to determine these damages. As the
lower court made no finding on this question of damages, the cause is
remanded to receive the evidence of both parties and determine a just
and proper amount of damages to be paid to the plaintiff-appellant for
the unlawful detention of said lands beginning with the year 1922 up
to, and including, the year 1933.

With respect to the
reconvention of the defendant which was introduced by way of amendment
to his answer near the close of the trial and in which he prays for
judgment for the sum of P230 per hectare for the cleaning and
improvement of the lands here involved, it suffices to say that we find
no merit in this claim. If the defendant in fact advanced any of his
own funds for the purposes aforesaid, it was during the time that he
was the agent and trustee of his father, Marcelo de Borja, and it is
safe to assume that he presented this claim in the regular annual
accounting which he had with his father and that the matter was settled
long before the latter’s death.

With respect to the
ownership of the two parcels of land mentioned in the plaintiff’s
petition and referred to herein, the judgment of the court below is
reversed and the said lands are declared to be the exclusive property
of the estate of the deceased Marcelo de Borja and the
defendant-appellee Francisco de Borja is required and ordered to
deliver and transfer the possession of said lands to Quintin de Borja,
the administrator of the estate of the deceased Marcelo de Borja.
Without special pronouncement of costs in this instance.

Street, Abad Santos, Vickers, and Diaz, JJ., concur.