G.R. No. 18666. February 17, 1923

In this action the plaintiffs seek to recover the title to, and possession
of, certain lands, and damages. Some of said lands belonged to their father,
Antonio Velazquez 1.°, and the others to their said father and their mother,
Gregoria Talag, as conjugal property.

The defendants admit having been in possession of all the parcels of land
described in the complaint, except parcel 2 of paragraph 7 thereof (p. 26,
transcript, stenographic notes); but allege that the defendant Justo Teodoro,
who is now in possession of said lands, bought them from the children of
Leodegaria Valdez Angeles, their codefendants, who had inherited them from their
aforesaid mother, who in turn had purchased them from Gregoria Talag, mother of
the plaintiffs, who is also a defendant herein. They allege, further, that one
of these parcels was acquired by Leodegaria Angeles from Ramon Valdez Angeles,
who had obtained it by purchase from the same Antonio Velazquez 1.°.

There is no question but that these lands formerly belonged partly to Antonio
Velazquez 1.°, and partly to said Velazquez 1.° and his wife Gregona Talag, nor
is there any question but that the plaintiffs are children and heirs of said
Antonio Velazquez 1.°.

What is to be examined and is the subject of controversy is the
efficaciousness of the transfers made by the defendants. If these transfers are
valid and efficacious and the plaintiffs have not lost their right to these
lands, their action for recovery is well founded and must prosper.

In their chronological order, the first of these contracts is that contained
in Exhibit 1 of the defendants who maintain it to be one of sale with the right
of repurchase executed by Antonio Velazquez 1.° in favor of Ramon Valdez
Angeles, while the defendants contend that it is a mortgage. By the terms of the
document the contract is one of sale with the right of repurchase. But we find
therein the following clause:

“I also state that I am the owner of said realties free from any encumbrance
and lien, and that I bind myself to defend my title thereto against any lawful
claim and invasion that may be made by any other person. It has been stipulated
that notwithstanding this alienation I will continue in the possession and
enjoyment of the realties at the agreed annual rent of five hundred pesos
(P500). At the expiration of one year I bind myself to return the principal with
the stipulated interest in legal tender of the Islands, if the buyer so demands,
and to secure the fulfilment of this obligation, Doña Leodegaria Valdez Angeles,
resident of Guagua, Pampanga, Philippine Islands, of age, widow of D. Remigio
Lilies and real estate owner, stands bound jointly and severally with me as
surety.”

From the clause above quoted it appears that the supposed seller, did not
reserve the right to repurchase the property, as is done in the case of a
conventional redemption (art. 1507, Civil Code), but bound himself to return the
principal and interest at the expiration of one year, guaranteeing this
obligation with the joint and several bond of Leodegaria Valdez Angeles.
The principal part, therefore, of the contract was not the transfer of the
property, but the return of the P2,500 and the interest thereon; and the
secondary or subsidiary, as in every mortgage, which is a contract whose
essential object is to secure the fulfilment of a principal obligation (art.
1857, par. 1, of the Civil Code), was the holding of the property subject to the
principal obligation, to wit, the return of the principal and interest, until
the same matured.

The expression “if the buyer so demands” does not mean that it was
optional with the vendor to demand or not the payment of the principal and
interest, for in fact such return must be regarded as indubitably and definitely
agreed upon; and this is the more so because it was secured with the bond of
Leodegaria Valdez Angeles. It is to the time of such return of the principal and
interest that such an expression refers, which returns was to be made at the
expiration of the year “if the buyer so demands.” So that if the latter
did not make demand, the time could be, as it was in fact, extended, according
to the statement made by Ramon Valdez Angeles himself in Exhibit 2, paragraph 4,
more than three years later, wherein he says:

“4th. The repurchase of the realties was not made within one year by reason
of extensions and delays requested, not only by Don Antonio Velazquez 1.° in his
lifetime, but also by his surety Doña Leodegaria Valdez upon the death of
Velazquez which occurred in nineteen hundred and five.”

That Ramon Valdez had no intention to acquire the property in question, but
what he was interested in was the payment to him of the P2,500 which Antonio
Velazquez 1.° had taken from him, is further shown by his having transferred the
property to Leodegaria Valdez (Exhibit A) more than two years before the
assignment thereof by Ramon Valdez to Leodegaria Valdez herself. If Antonio
Velazquez 1.° and his wife Gregoria Talag on the one hand, and Leodegaria
Valdez, on the other, had understood Exhibit 1 to be a sale of the property in
quetsion, Gregoria Talag would not have sold it afterwards because it no longer
belonged to her husband, nor would Leodegaria Valdez have purchased it from her,
for she had signed said supposed contract of sale as surety. Let it not be said,
as the trial court observes, that said document, Exhibit A, was not accepted by
Leodegaria Valdez, for while she did not sign it because it was executed in a
unilateral form, which is the one ordinarily adopted since the publication of
the forms of deeds given in section 127 of the Land Registration Act No. 496,
yet it is an undisputed fact, which can be inferred from the record, that
Leodegaria Valdez accepted, received, and kept said deed Exhibit A as vendor,
when her heirs relied upon it on selling these same realties to Justo Teodoro in
the document Exhibit 3.

Furthermore, Gregoria Talag, wife of Antonio Velazquez 1.°, who on account of
this circumstance ought to have been conversant with this matter, testified that
such a contract executed by her husband in favor of Ramon Valdez was one of
mortgage. And this testimony was, in no way objected to, nor contradicted.

“ART. 1281 (Civil Code). * * * If the words appear to be contrary to the
evident intention of the contracting parties, the intention shall prevail.

“ART. 1282 (Ibid.). In order to judge as to the intention of the contracting
parties, attention must be paid principally to their conduct at the time of
making the contract and subsequently thereto.”

“SEC. 288 (Code of Civil Procedure). In the construction of a statute, the
intention of the Legislature, and in the construction of an instrument, the
intention of the parties, is to be pursued; etc.”

The doctrine laid down by this court in the cases of Olino vs. Medina
(13 Phil., 379); Perez vs. Cortes (15 Phil., 211), and Padilla vs.
Linsangan (19 Phil., 65), is square in point.

Our conclusion, therefore, is that the contract, Exhibit 1, executed by
Antonio Velazquez 1.° in favor of Ramon Valdez is a mortgage, thus upholding the
assignment of error of the appellants to the action of the trial court in
considering the contract as one of sale.

As Ramon Valdez did not acquire title to the property by virtue of Exhibit 1,
he had no right to transfer it, as he did, to Leodegaria Valdez.

But Leodegaria Valdez acquired the same property and some others by purchase
from Gregoria Talag by virtue of Exhibit A; so it becomes necessary to inquire
into the validity and efficaciousness of this transfer, as evidenced by said
deed Exhibit A.

The evidence as a whole shows that of the six parcels of land covered by
Exhibit A, four were private property of Antonio Velazquez 1.°, namely, parcels
1, 2, 3, and 4 described in paragraph 6 of the complaint; and the rest belonged
to the conjugal partnership of said Velazquez 1.° and his wife Gregoria Talag.
Now, after the death of Antonio Velazquez 1.°, Gregoria Talag could not legally
sell the private properties of her deceased husband, nor those of the conjugal
partnership that would have been allotted to her said husband, and both kinds of
properties were, upon his death, transmitted to his children, the herein
plaintiffs, by operation of law.

Consequently, such a sale made by Gregoria Talag by virtue of Exhibit A is
valid only as to such part of the conjugal property as belonged to said
Gregoria, and is of no legal effect as to the other properties which belonged,
and do still belong, exclusively to the heirs of Antonio Velazquez 1.°, the
herein plaintiffs.

Leodegaria Valdez, therefore, did not by virtue of Exhibit A acquire from
Gregoria Talag, nor transmit to her heirs upon her death but such part of the
conjugal property as would have belonged exclusively to said Gregoria. From this
it follows that the heirs of Leodegaria Valdez did not acquire title but to the
aforesaid portion of the conjugal property of Antonio Velazquez 1.° and Gregoria
Talag, and therefore this portion and no more could have been, and was, legally
and effectively transmitted to Justo Teodoro by virtue of the deeds Exhibit
3.

Therefore this Justo Teodoro, the actual possessor of these lands, has no
valid title to them, except as regards said portion of the aforesaid conjugal
property.

Having reached this point, the next question that presents itself for our
consideration is that raised by the second special defense of the defendants to
the effect that “the plaintiffs have lost their right to bring this action in
view of the fact of more than ten years having elapsed from the time their right
of action accrued, that is to say, that plaintiffs’ action has already
prescribed.”

From the records it appears that of the five children of the deceased Antonio
Velazquez 1.°, three (Marcelina, Emilio, and Manuel) were minors at the time
this action was brought, namely, on the 14th of August, 1919, for at the
commencement of the trial of this case a guardian ad litem was appointed
for Marcelina and Emilio, and Manuel Gonzalez attained majority only in
December, 1919, some months after the institution of the action. Therefore, as
regards these three minors, the period of limitations fixed by the law had not
begun to run when this action was brought. (Sec. 42, Code of Civil
Procedure.)

As to Belen Velazquez, the record shows that she became of age on the 22d of
November, 1917. The complaint herein having been filed on August 14, 1919, it is
clear that this action was brought within the three years following the date
when she ceased to be a minor. For this reason, the prescriptive period for
minors had begun, but had not terminated, as to this plaintiff. (Sec. 42, Code
of Civil Procedure.)

Therefore the prescription alleged by the defendants can have no application
as to these four plaintiffs.

As to the plaintiff Florencia Velazquez, the evidence shows that she attained
majority on February 19, 1916, that is to say, more than three years before the
14th of August, 1919, when this action was brought. Therefore, if the right she
is now seeking to enforce in this case were exclusive and isolated, there could
be no doubt but that her action has prescribed, according to section 42 of the
Code of Civil Procedure. But this section was borrowed from the statutes of the
State of Ohio, wherein the following doctrine was laid down by the supreme court
of that State:

“Where the interests of two defendants are joint and inseparable, and the
rights of one are saved under the provision of the statute of limitations) on
account of his disability, such saving inures to the benefit of the other
defendant, although laboring under no disability.” (Sturges and Anderson
vs. Longworth and Home, 1 Ohio St., 545; Wilkins vs. Philips, 3
Ohio, 49.)

The first of these cases dealt with a mortgage of a land belonging to Sturges
and Anderson in favor of Longworth and Home. The creditors Longworth and Horne
brought the action for the foreclosure of the mortgage. Pending the action, it
appeared that Sturges was insane, and for this reason a guardian ad litem
was appointed for him, but that guardian never answered the complaint. A
nisi decree was entered, and the complaint was considered confessed.
Judgment was rendered in due course, ordering the sale of the land, which was
done, the sale having been made to the plaintiffs. An action to review the
judgment was initiated in the Supreme Court of Ohio, but the complaint for
review was filed five years after the entry of the original decree, for which
reason the action for review had prescribed under the laws of the State so far
as Anderson was concerned, but within five years from the removal of Sturges’
insanity, and this fact protected him against prescription. That court held
among other things: “That the interests of Sturges and Anderson cannot be
separated, but that they are both necessary parties to the proceeding in review;
and that Sturges coming within the proviso of the statute, Anderson’s rights, as
a necessary consequence, are also saved.” In the same decision, it was said that
this view was based on the doctrine laid down in Wilkins vs. Philips (3
Ohio, 49), and followed in several decisions, and could be considered as a
well-settled law.

As may be seen, the benefit of the proviso of the statute of limitations,
which was applicable to one of those two litigants, was extended to the other on
account of their interests being joint and inseparable. That jointure and
inseparability of interests consisted in that they were coowners of the land
mortgaged. (See also McGee vs. Hall, 1 S. E. Rep., 711.)

In the case before us, the plaintiffs are also coowners of the lands claimed.
It might be said that that case was one to review a judgment, while the one at
bar is for recovery of title. That is true, but the instant case is now before
us also for a review of the judgment appealed from.

Even considering this aspect of the case from the standpoint of the action
for recovery of title brought by the herein plaintiffs, there exists a community
of property between them with respect to the lands in question, since, as they
allege and we find, said lands belong to them pro indiviso (art. 392,
Civil Code). So long as this community exists, and it does exist until now, each
coowner has a right over all the lands. (Pardell and Ortiz vs. De
Bartolome and Ortiz, 23 Phil., 450.) The interests of the plaintiffs over said
lands are joint and cannot be separated—are inseparable—so long as this
community exists, which does exist until now. (Arts. 394, 395, 397, 398, 399,
Civil Code.) This is as regards their rights and obligations, in a word, their
interests. And as to the exercise of their right of action, such interests must
also be considered as joint and inseparable.

If the case at bar is identical on the point under consideration to those
cited in which the above quoted doctrine was laid down by the Supreme Court of
the very State from whose statutes section 42 of our Code of Civil Procedure now
in force was borrowed, we see no reason why said doctrine should not be applied
in this jurisdiction to its full effect and extent.

If this is so, as we do find it to be, the conclusion is inevitable that in
the instant case, the proviso in favor of the four plaintiffs above-named inures
to the benefit of the plaintiff Florencia Velazquez.

Consequently, the prescription alleged by the defendants cannot be held
applicable to the plaintiffs.

The property and possessory right of the plaintiffs to the aforesaid parcels
being clear and manifest, the next point to be examined is their claim for
damages.

The plaintiffs claim damages for “the use and occupation of said lands and
the fruits thereof not received by them.” As to the damages for the use and
occupation of the lands, there is in the record no sufficient proof of either
their existence or amount. And with regard to the fruits of the lands, first of
all, it is necessary to determine whether or not the defendants are possessors
in good faith of said realties, for if they are, they are not bound to return
the fruits received until the legal interruption of their possession. Article
451 of the Civil Code provides the following:

“Fruits received by one in possession in good faith before possession is
legally interrupted become his own.”

And article 434 of the same Code establishes a presumption of good faith in
favor of a possessor in the following terms:

“Good faith is always presumed, and the burden of proving bad faith on the
part of the possessor rests upon the person alleging it.”

No allegation was made, nor any proof presented, by the plaintiffs that the
possession of the defendants was in bad faith, it being incumbent upon them to
affirm and prove it at the trial.

Article 433 of the Civil Code and the decision of this court in the case of
Ortiz vs. Fuentebella (27 Phil., 537), are cited by the plaintiffs, but
what this article provides is that even if there is a flaw in the title or mode
of acquisition of the possessor whereby it is rendered invalid, he is deemed a
possessor in good faith if he is unaware of it, and in bad faith if he knows
it.

There is no proof that the defendants or any of them knew that in their title
or mode of acquisition there existed a flaw that rendered it invalid which does
not appear to have been declared by any court before the filing of this
complaint, nor is there any proof of any act of the defendants tending to show
any knowledge on their part that they were unduly holding the possession of the
lands. They acquired these lands in good faith, and that good faith continued at
least until they learned of the complaint. Article 435 of the Civil Code
provides:

“Possession acquired in good faith does not lose this character unless and
until acts take place which show that the possessor is not unaware that his
possession is wrongful.”

There is, therefore, no ground for holding these defendants responsible for
the damages claimed by the plaintiffs.

If the plaintiffs are entitled to recover the title to, and possession of,
the lands in dispute, another question presents itself for determination, to
wit, whether or not they must pay the debt of their father Antonio Velazquez,
which was the original cause for making the transfers aforesaid, according to
the opinion of the trial court, stated in its decision, which on this particular
point says:

“* * * The plaintiffs may claim their share in said realties, deducting
one-half of each and every one of them and the part of the usufruct that belongs
to Gregoria Talag, upon payment to Justo Teodoro or the Lilles heirs, should he
choose to rescind the contract with the Lilles people, heirs of Leodegaria
Valdez, of the amount that they are bound to pay on account of the, debt of
Antonio Velazquez, according to the price for which they were sold by Gregoria
Talag to Leodegaria Valdez, as shown by Exhibit A.”

This debt due to Ramon Valdez Angeles which amounts to P2,500, was incurred
by Antonio Velazquez 1.°, father of the plaintiffs. (Exhibit 1.) It was paid to
the former by the surety Leodegaria Valdez Angeles. (Exhibit 2.) In
consideration of this debt, which was thus assigned to Leodegaria Valdez
Angeles, and of other sums of money, with which this appeal is not concerned,
Gregoria Talag transferred the lands in question to Leodegaria Valdez Angeles in
payment thereof, executing the document Exhibit A to that end. As said transfer
is held void and of no legal effect, as regards the private property of Antonio
Velazquez 1.° and his share of the conjugal property, the aforesaid debt of
Antonio Velazquez 1.° of P2,500 stands unpaid.

The children of Antonio Velazquez 1.°, the plaintiffs herein, contend that
they are not bound to pay this debt, because the same was not duly presented to
the committee on claims and appraisal, as provided by section 669 of the Code of
Civil Procedure. But it is obvious that the defendants considered the debt as
paid with the lands in question, and it was not logical to expect them to claim
payment of said debt But now that it is adjudged in this case for the first time
that the assignment in payment of the aforesaid debt is ineffective, so far as
the exclusive property of Antonio Velazquez 1.° is concerned, would it be legal
and equitable merely to restore the things to the same situation as they were in
before such assignment and order the return of the lands to the plaintiffs,
without requiring payment of the debt which was considered by the defendants as
paid with the lands of which they are now deprived? And who must now pay such
debt of Antonio Velazquez 1.° but his heirs, the plaintiffs herein, who are the
ones to receive said lands? Nemo debet ex alieno damno lucrari.

We are of opinion that the plaintiffs are under obligation to pay the
defendant heirs of Leodegaria Valdez Angeles the sum of P2,500 in proportion to
the price of the lands in question that the defendants are bound to return to
them.

As to the interest on the said sum of P2,500, we hold that it should be
computed from the date of the judgment appealed from, wherein for the first time
such an obligation to pay the aforesaid sum was declared. The defendants
acquired the fruits of the lands and are not required to return them on account
of their possession having been in good faith. In the same way, the plaintiffs
cannot be compelled to pay interest on the debt of their father which the
creditors considered as paid and for this reason never claimed it. No
application can be made to the instant case of article 1303, and others related
thereto, of the Civil Code, because neither is the present action one for
annulment of the contract, nor are the plaintiffs a party to any of the
above-mentioned contracts.

This action is simply for the recovery of the aforesaid lands, but in the
adjudication of the controversy, and to do justice to all the parties, it is
necessary, in view of the questions raised by them in their pleadings, to
determine the points above set forth, which we deem necessary for the complete
and final decision of the litigation.

It remains for us to determine the parcels and portions thereof to which the
plaintiffs are entitled, as shown by the record. As already stated, the
defendants, through their attorney, admitted having been in possession of all
the parcels of land described in the complaint, except parcel 2 of paragraph 7
of the complaint.

It was not sufficiently proven that the defendants, or any of them, are in
possession of parcel 2 of paragraph 6 of the complaint.

Of the seven parcels in the possession of the defendants, three belong
exclusively to the plaintiffs who have inherited them from their deceased
father, the original owner of the same. These three parcels of land are those
marked as parcels 1, 3, and 4 in paragraph 6 of the complaint.

The remaining four parcels belonged to the conjugal partnership of the
aforesaid spouses Antonio Velazquez 1.° and Gregoria Talag. Upon the dissolution
of this partnership by the death of the husband, an undivided one- half of said
realties was transmitted to his children, the herein plaintiffs, as their
inheritance, and the other undivided one-half, corresponding to Gregoria Talag,
was sold by her by virtue of Exhibit A, and transmitted afterwards successively
until it reached Justo Teodoro, who thus became, and is, the owner of said
undivided one-half of these remaining four parcels of land, which are the four
parcels described in paragraph 7 of the complaint.

For the foregoing reasons, the judgment appealed from is modified, and it is
adjudged and decreed: First, that the plaintiff children of Antonio Velazquez
1.° are the exclusive and pro indiviso owners, and are entitled to the
possession of parcels 1, 3, and 4 described in paragraph 6 of the complaint, as
well as of the undivided one-half of each of the parcels described in paragraph
7 of the complaint; second, that the defendant Justo Teodoro is the absolute
owner of the other undivided one-half of each of the said parcels described in
paragraph 7 of the complaint; third, that the plaintiffs are under obligation to
pay the defendant heirs of Leodegaria Valdez Angeles the sum of P2,500, with
legal interest thereon from the date of the judgment appealed from, November 8,
1921.

Wherefore, the defendants are sentenced to deliver to plaintiffs, parcels 1,
3, and 4 described in paragraph 6 of the complaint, and the undivided one-half
of each of the four parcels described in paragraph 7 of the complaint. The
plaintiffs are sentenced to pay to the defendant children of Leodegaria Valdez
Angeles the sum of P2,500, with interest at the rate of 6 per cent per annum
from November 8, 1921, until it is fully paid, the right being reserved to Justo
Teodoro to bring such action as he may be entitled to by reason of this eviction
without special pronouncement as to costs.

The judgment appealed from is reversed in so far as it is inconsistent with
this opinion. So ordered.

Araullo, C.J., Johnson, Malcolm, Avanceña,
and Villamor, JJ., concur.

---

STREET, J., with whom concurs JOHNS,
J.:

I respectfully dissent from so much of this decision as holds that Florencia
Velazquez can recover in this case. Her right had cleary been extinguished by
the statute of limitations before the action was instituted; and her interest is
not saved by the circumstance that her younger brothers and sisters are not
barred. I deem it the more important to indicate the reasons for my dissent
because of the circumstance that the decision of the court upon this point
proceeds upon what I consider to be an erroneous application of the American
authorities.

Section 42 of our Code of Civil Procedure, dealing with exceptions in favor
of persons under disability, is taken from the Ohio statutes. It has been held
over and over again by the Supreme Court of that State that where there are
several heirs suing in a common right, the right of those who are within the
saving of the statute will be saved, while others not so circumstanced will be
barred. This is exactly the contrary doctrine to that which is attributed to the
Ohio Supreme Court by the opinion in this case. In Bronson vs. Adams (10
Ohio, 135), the action was brought by three sons to secure partition of a piece
of property which they had inherited from their father. The defendant had been
in adverse possession for a sufficient length of time to have acquired a perfect
title, and only the younger of the three sons was within the saving of the
statute. The Supreme Court held that, inasmuch as the defendant had been in
continuous possession for the time prescribed by law, the right of the two elder
sons was destroyed, while the right of the younger was preserved by his
minority. Said the court: “The three heirs held a right in common in the lots,
which the defendant occupied, and the statute extinguished the claims of
two.”

In Moore vs. Armstrong (10 Ohio, 11), this subject had been previously
discussed by the same court with much learning, and it was held upon full
consideration that a disability saving one heir from the operation of the
statute of limitations is no protection to his coheirs; and the court observed
that, whatever opinion may once have been entertained on this point, it is now
conclusively settled both in Great Britain and in the United States, that the
saving statute operates only in favor of the person laboring under disability.
“This is the rule,” said the court, “with respect both to coparceners and
tenants in common.” This case is reported in 36 Am. Dec, 63, and an elaborate
note is appended in which the authorities will be found marshalled at pages 77,
78. In the same decision the Supreme Court of Ohio referred to the case of
Wilkins vs. Philips (3 Ohio, 49), which is cited in the opinion of the
court, and that case was declared to be inapplicable, if not erroneous.

In order to appreciate the American decisions on this point at their true
value, it is necessary to bear in mind the difference between the right of
action which is exclusively joint, like that of partners at common law or joint
tenants at common law, and the right of action which is joint and several, as in
the case of tenants in common; and I take the distinction to be this: If a right
of action vested in several persons is exclusively joint in the sense that the
action cannot be maintained without joining all as plaintiffs, then by the
weight of American authority, if the action is barred as to some, it is barred
as to all; though there is a respectable line of decisions to the effect that in
this case the action can be brought in behalf of all if a right of action still
subsists in any one of the persons jointly entitled to sue. With that
controversy we are not here concerned, as the case before us arises with respect
to several coheirs, or coowners, whose tight of action is not joint but both
joint and several. Coheirs and coowners under the civil law are precisely in the
position of tenants in common at common law. In other words, the coowner has a
joint and several right of action, and can either join with others or sue
separately to vindicate his own right.

Under such conditions, that is, where the right is separable, the practically
universal rule is that the exception of the statute of limitations operates only
in favor of those who are within the saving and that those who are not will be
barred. As stated by the annotator of Moore vs. Armstrong (36 Am. Dec.,
63), the rule is: “Where the rights of the parties are not joint, the cases are
uniform, and hold that the disability of one will prevent the operation of the
statute as to him, but that those who are not under a disability will be
barred.”

A careful examination of the American decisions will show, however,
that there is one State where the benefit of the saving of the statute as to one
heir inures to the benefit of all. This is the State of South Carolina, as will
be seen from the cases collected in the article on “Limitations of Actions,” 25
Cyc., 1273, notes 61-63. That anomaly should not be perpetuated here; for it is
not only contrary to the principle underlying American cases but is inconsistent
with the conception of coownership under the Civil Code.

---

OSTRAND, J.:

I fully concur in the dissent of Mr. Justice Street in regard to the effect
of the Statute of Limitations where some tenants in common are under disability
and others are not.

But not only in regard to the Statute of Limitations has the court gone
astray; in my humble opinion, its decision suffers from other and equally grave
infirmities. By its terms Exhibit 1 evidences a sale of land; it is only by
holding that the document itself does not express the true intent of the parties
and by invoking the aid of oral evidence as to that intent that the transaction
can be construed into an equitable mortgage. This would have been permissible as
between the original parties, but here the present possessor of the land is an
innocent third party, a purchaser for value and, as far as we know, in good
faith. Under the documentary evidence before us he unquestionably holds the
legal title to the land and it is only by applying equitable doctrines that the
plaintiffs can be held to have superior rights.

It is to the public interest that bona fide possessors of land should,
as far as possible, be protected in their possession and by its reckless
application of equitable principles in rem instead of in personam
the court opens the way for fraud and injustice.

The judgment appealed from
should have been affirmed.