ALFREDO GIMENO AND DR. LEONARDO GIMENO, PETITIONERS, VS. THE HONORABLE COURT OF APPEALS AND PRUDENCIO CARTAGENA, RESPONDENTS.

This is a simpIe case of recovery of
two hectares of land filed by petitioner Alfredo Gimeno
and several others against respondent Prudencio Cartagena with the
Court of First Instance of Davao.

The land in litigation is part of a 17-hectare parcel situated in
barrio Baculin, Municipality
of Baganga,
province of Davao, presently covered by Original Certificate of
Title No. 1354 dated February 14, 1935 under a homestead patent issued in favor of Brigido Cartagena, father of Prudencio Cartagena.  During the lifetime of Brigido
Cartagena a “Deed of Partition Inter Vivos” was executed between spouses Brigido Cartagena and Isabel Ferrando and their four children and a 7-hectare portion
was allocated to Prudencio Cartagena
which includes the two hectares now being claimed by petitioners.

In their complaint filed on June 7, 1957, the Gimenos
claim that sometime in 1926 their predecessors-in-interest, brothers Exequiel Gimeno and Victorio Gimeno, now deceased, on
one hand and Brigido Cartagena
on the other, verbally agreed to jointly clear and cultivate the 17 hectares
with the understanding that when the coconuts planted by the Gimenos would have borne fruit, the land cleared by the
latter would be segregated by a competent surveyor and Brigido
Cartagena would execute papers of relinquishment in
favor of the Gimenos; that as a consideration of this
agreement the Gimenos gave P150.00 to Brigido Cartagena to help the
latter cultivate the rest of the property; and in 1948, the 17 hectares were
surveyed and subdivided into “lot 2126” of two hectares and “lot
3320” containing an area of 15.590 hectares.  Lot 2126 is the
portion now sought to be recovered by the Gimenos.

The allegations of the complaint and the evidence adduced by the
petitioners were controverted by respondent Prudencio Cartagena who claimed
that his father, Brigido Cartagena,
owned and possessed exclusively as a homestead the 17-hectare land for which
the latter was issued Original Certificate of Title 1354 since February 14,
1935; that Brigido Cartagena
declared for taxation purposes the entire 17 hectares solely in his name; that
a deed of partition was executed between Brigido Cartagena and his four children, and the area allocated to Prudencio Cartagena measured
seven hectares of which two hectares are now being claimed by the Gimenos without justification.

The trial court presided by Judge Macapanton
Abbas as well as the Court of Appeals dismissed the
complaint of the Gimenos because of “the dubious
character of plaintiffs’ evidence” as well as “laches
in the enforcement of their alleged right”, they having filed this
particular complaint only after “22 years, 3 months, and 6 days from
February 14, 1935 when OCT 1354 was issued in the name of Brigido
Cartagena” and “31 years from the date of
the alleged verbal agreement of June 21, 1926” between the Gimeno brothers and Brigido Cartagena.^[1]
The Court of Appeals further stated that petitioners (plaintiffs-appellants)
“failed to adduce clear, competent and convincing evidence that would justify this Court to hold that a fiduciary
relation existed between Exequiel and Victorio Gimeno on the one hand
and Brigido Cartagena on
the other, with respect to the two-hectare portion which is now known as lot
2126 of Baganga Cadastre, Davao.  There is no gainsaying the fact that the
plaintiffs’ evidence falls far short of the required quantum and quality that
can overthrow the homestead patent issued under OCT 1354 which, as mentioned
heretofore, has been in existence, unassailed for
more than 22 years prior to the institution of the present action.”^[2]

Petitioners now seek a reversal of the decision of the Court of
Appeals raising a number of legal questions which respondent appellate court
allegedly disposed of erroneously.

We find however that the issues are basically factual and that
they essentially involve an appreciation of the evidence adduced by the
parties.  In other words, is there clear
and convincing evidence – as the Court of Appeals puts it – to sustain the
claim of petitioners that there was a verbal agreement of purchase entered into
in 1926 between their predecessors-in-interest and respondent’s father, Brigido Cartagena, over the
two-hectare portion of land? Is there clear and convincing evidence that an
implied trust existed in favor of petitioners which respondent Prudencio Cartagena is bound to
respect and comply with? The appellate court held that there is none.  That finding of respondent court is binding
on Us in the absence of any showing that there has been a misapprehension of
facts or that a grave abuse of discretion was committed in the appreciation of
the evidence or that the situation calls for an exception to the general rule.^[3]

In the first assigned error petitioners submit that
respondent Court of Appeals erred in not holding that private respondent waived
the defenses of “indefeasibility of title, prescription, laches and lack of cause of action,” inasmuch as
respondent Cartagena failed to assert them in his
answer to the complaint, and under Rule 9, Section 2 of the Revised Rules of
Court, defenses and objections not pleaded either in a motion to dismiss or in
the answer are deemed waived.^[4]

We agree with the appellate court that there is substantial
compliance with the Rules considering that in the answer of respondent Cartagena it was specifically pleaded that the two hectares
object of the complaint are part of a bigger tract of land covered by OCT
1354 issued since February 14, 1935 in the name of respondent’s father Brigido Cartagena, and even prior
to that date respondent’s predecessors-in-interest were in possession of said
property exclusively as owners thereof, and that respondent Cartagena
merely continued the possession of his father Brigido
Cartagena after the partition of the property was
executed among the children of Brigido Cartagena in September of 1952.

It is to be noted that in the overall appreciation of the
evidence of petitioners on their claim that there was a verbal purchase of the
two hectares since 1926, both the trial court and the Court of Appeals did not
find the claim credible, and one of the factors which led the two courts to
that conclusion was the inaction of petitioners and their
predecessors-in-interest to assert their supposed right over the pro­perty in
litigation notwithstanding the allegation that there was an agreement that a
document conveying the two hectares to the Gimeno
brothers would be executed by Brigido Cartagena after the coconut trees the Gimenos
planted shall have borne fruit and the two hectares shall have been segregated,
which events according to petitioners occurred since 1943 and 1948
respectively.  It is indeed surprising
why no positive step was taken by the Gimeno brothers
to enforce the supposed verbal agreement against Brigido
Cartagena during the latter’s lifetime.  It was only after Brigido
Cartagena died and was no longer in a position to
deny or dispute the supposed agreement that this complaint was filed on June 7, 1957.  In evaluating the evidence, both the court a
quo and the appellate court found that the Gimenos‘
failure to take positive action since 1926 and before Brigido
Cartagena died sometime in 1954 greatly weakened the
claim of petitioners.  To that We agree.

In PHHC and University of the Philippines vs. Mencias, et al. this Court held among others that an
action for reconveyance of a property that was titled
since 1914 and brought only in 1957 is to be barred on grounds of laches.^[5] In Delima
vs. Tio the Court likewise pronounced that
inaction for 28 years from the time of the supposed transaction invoked by
plaintiff before she filed the action for recovery of property amounts to laches and convert what otherwise could be a valid case
into a stale demand.^[6] Again in Pabalate
et al. vs. Echarri, Jr. the land in litigation
was covered by an original certificate of title issued by virtue of a homestead
patent dated February 20, 1926 which was sold by the heirs of the
original patentee to a third person who since 1927 was in continuous exclusive
possession in concept of owner thereof. 
The dismissal of the action for recovery of said property filed only in 1959
by the heirs of the vendors, was upheld by this Court on the ground inter
alia that by the long period of 37 years and the
plaintiffs’ inaction or inexcusable neglect their claim was converted into a
“stale demand”.^[7]

In the second assigned
error it is asserted that
respondent Court of Appeals erred in not holding that a certificate of title
issued by reason of a homestead patent is not indefeasible^[8] and in support thereof petitioners invoke
the pronouncements of this Court in Nieto vs. Quines
to the effect that

“x x x a
certificate of title based on a patent, even after the expiration of one year
from the issuance thereof, is still subject to certain conditions and
restrictions.  As a matter of fact, in appropriate cases and after prior
administrative investigations by the Director of Lands, proper actions may be
instituted by said official which may lead to the cancellation of the patent
and the title, and the consequent reversion of the land to the Government.  On the other hand, a certificate of title
issued pursuant to Act 2259, after the lapse of 1 year, becomes
incontrovertible.  The inescapable
conclusion, therefore, is that, while with the due registration and issuance of
a certificate of title over a land acquired pursuant to the Public Land Law,
said property becomes registered in contemplation of Act 496, in view of its
nature and manner of acquisition, such
certificate of title, when in conflict with one obtained on the same date through judicial proceedings, must give way to the
latter.” (L-14643, Sept. 29, 1962, 6 SCRA 74, 80)

The Nieto case has no application to the present
action.  In Nieto two certificates
of title were issued – one based on a homestead patent while the other was
obtained through a cadastral proceeding, and the issue was which of the two
registrations already effected and secured should prevail.  In this Case of the Gimenos
all that is involved is the latter’s claim that the homestead patentee, Brigido Cartagena, agreed way
back in 1926 to convey to the Gimenos two hectares of
that homestead, which assertion was discarded by the trial court and the Court
of Appeals for lack of sufficient credible evidence to substantiate the
same.  Hence, the dismissal of petitioners’
complaint for reconveyance.

In their third assigned error, petitioners contend that
the survey plan prepared and approved in
1948 by the Bureau of Lands which segregated the two hectares in
question from the rest of the Cartagena
property is “the most eloquent evidence” of their ownership.^[9]
Again We state that this is a matter of appreciation of evidence which is best
left to the trial court and the appellate court which are finders of
facts.  It appears that said piece of
evidence was not given weight in the evaluation of the evidence of the
parties.  We note that the sketch plan,
Exhibit A, prepared by a private land surveyor does not bear the approval of
the Director of Lands as claimed in page 12 of the Petition for Certiorari.  All that appears is a certification of the
Acting District Land Officer that the sketch is a true and correct copy of a
plan existing in the Land Office in Davao City.  At any rate, the existence of a sketch plan
of a real property even if approved by the Bureau of Lands is no proof in
itself of ownership of the land covered by the plan.

In their fourth assigned error petitioners claim that re­spondent
Court of Appeals erred in finding that the petitioners’ witness Felimon Manguiob testified that
the subdivision plan Ex­hibit A had no technical descriptions because in truth
there was no such testimony in the record.^[10]
We note however that petitioners’ contention is premised on a wrong
interpretation of a portion of page four of the appellate court’s
decision.  The clause “without
technical description” is a specific finding of respondent court based on
the sketch, Exhibit A, for the truth of the matter is that said sketch plan is
without technical descriptions.  What the
appellate court meant and in effect stated on page four of its decision was
that according to Felimon Manguiob
the subdivision survey was effected in
June, 1948, at the instance of Brigido Cartagena, the registered owner of the title.10-a This
testimony of the witness was not however believed or given credit both by the
court a quo and the Court of Appeals.

In the fifth assigned error it is asserted that respondent
court erred in holding that fraud or bad faith is a necessary allegation in an
action for reconveyance.^[11]
Petitioners cite Sanchez vs. Vda. de Tamsi, L-16736, June
30,1961, wherein it was held that reconveyance
can be justified on the ground of error. 
Petitioners have a point in this regard, for in Sanchez it was
stated that where a property is erroneously included in a homestead patent, the
patentee by force of law becomes a trustee under an implied trust for the
benefit of the real owner.  However, that
is not the issue in this case now before Us. 
The Gimenos do not assert that there was error
or that there was fraud on the part of Brigido Cartagena in applying for a homestead patent for the 17
hectares and in securing the original certificate of title.  No; what is alleged is that there was a
verbal understanding or “purchase” in that the two hectares
cleared and cultivated by petitioners’ predecessors-in-interest would be
“deeded” in their favor, and to enforce that supposed oral agreement
entered into in 1926 this complaint was filed.^[12]

Fundamentally, therefore, the action is one for enforcement of a
verbal understanding supposedly entered into between the respective
predecessors-in-interest of the petitioners and the respondent herein, and if
the same is to prosper there must be a finding that the Cartagenas
held the two hectares in trust for the Gimenos.  It is in this context that respondent court
declared that there was need for petitioners to show that they were the owners
of the property claimed and were being deprived thereof by private respondent.^[13]
Respondent court concluded that the record is “barren of evidence” to
establish a fiduciary relationship between the homestead patentee, Brigido Cartagena and the Gimenos.

The sixth assigned error argues that respondent court
erred in not holding that petitioners sufficiently established their claim of
ownership and continuous possession on the basis of the allegation in their
complaint that they planted 377 coconuts which was admitted by respondent Cartagena in the latter’s answer
to the complaint.^[14]

On this point, We examined the answer of respondent Cartagena to the amended complaint
and contrary to the assertion of petitioners, there is no such admission on the part of defendant, now respondent, Cartagena. 
Paragraph 9 of the amended complaint reads:

“9. That the
property in the case at bar consists of 377 productive coconut trees which
produce 30 piculs of copra every after three months
or 120 piculs every year;” (p. 14, Record on
Appeal)

Paragraph 9 of respondent’s answer in turn states:

“9. That the
Defendant ADMITS that the land in question is planted to 377 fruit-bearing coconut
trees but DENIES that the produce is 30 piculs per
quarter; the truth being that the quarterly produce is at best 20 piculs or 80 piculs yearly.” (pp. 18-19, Record on Appeal)

It is obvious that what Cartagena admitted was that there
were 377 fruit-bearing coconut trees on the two hectares, but that was
all.  Note that the allegation in
paragraph 4 of the amended complaint that plaintiffs’ predecessors-in-interest
introduced the present improvements consisting mainly of coconuts, was specifically
denied in paragraph 4 of the defendant’s answer, and it was alleged that it
was Brigido Cartagena, the
patentee, with the help of his children one of whom is the defendant, who
cleared, cultivated and improved the land in question which is only a part of
the parcel covered by Original Certificate of Title 1354.^[15]

All the allegations of petitioners as to their alleged
occupation, possession and cultivation of the land in litigation were not
substantiated according to the trial court and the Court of Appeals, and We do
not disturb that finding.

The seventh assigned error contends
that respondent court erred in not holding that the trial court of Davao should have allowed counsel of petitioners to
cross-examine respondent Cartagena
on a letter allegedly sent by the latter to Mrs. Natividad
Gimeno wherein the
continuous possession of the petitioners was supposedly admitted.^[16]

The stenographic transcript of the cross-examination of
respondent Cartagena
shows that petitioners’ counsel presented to the former a certain letter
written by Atty. Juanito Hernandez to Mrs. Natividad Gimeno.  No error was committed by the trial court in
sustaining the timely objection of Cartagena‘s counsel and ruling that the best witness competent to
testify on that letter was the addressee, Mrs. Natividad
Gimeno and not Prudencio Cartagena as the letter would constitute hearsay evidence
in so far as the latter was concerned.

WHEREFORE, We find this appeal without merit and We
dismiss the same and affirm the decision of the Court of Appeals in toto with costs against petitioners.

So Ordered.

Teehankee, (Chairman), Makasiar, Fernandez, and
Guerrero, JJ., concur.

Martin, J., no part.

* The names of Petitioners were
taken from the printed Record on Appeal inasmuch as the caption in this Petition
for Certiorari did not give in full the names of Petitioners.

** Decision of February 7, 1964, of First Division composed of
Antonio Lucero, J., ponente, with the
concurrence of Jose P. Bengzon, Presiding Justice and Salvador Esguerra,
J.

^[1]
see p. 36, rollo

^[2]
p. 37, ibid.

^[3]
Vda. de Catindig, et al. vs. Heirs of Catalina Roque, 1976, 74
SCRA 83, 88.  Perido
et al. vs. Perido, et al., 1975, 63 SCRA 97,
105; Alaras, et al. vs. Court of Appeals, et
al., 1975, 64 SCRA 671; Baptista vs. Carillo, et al., 1976, 72 SCRA 214, citing Fortus vs. Novero, 1968,
23 SCRA 1330, and other cases; See also among others:  Joaquin vs. Navarro, 93 Phil. 257;
Luna vs. Linatoc, 74 Phil. 15; Tagumpay, et
al. vs. Masangkay, et al. 46 SCRA 608.

^[4]
see pp. 4-5, Printed Petition for Certiorari

^[5]
20 SCRA 1031, 1042

^[6]
32 SCRA 516

^[7]
37 SCRA 518

^[8]
see p. 10 of Printed Petition

^[9]
see pp. 12-13 of Printed Petition

^[10]
see p. 17, ibid.

10-a see p. 31, rollo

^[11]
see p. 18, Printed Petition

^[12]
see pp. 29-34, Record on Appeal

^[13]
see p. 37, rollo

^[14]
p. 18, Printed Petition

^[15]
see pp. 12-13, & 17, Record on Appeal

^[16]
p. 20, Printed Petition