TARCELA VDA. DE BOUGH, PLAINTIFF-APPELLEE, VS. NARCISO ROCHA, JOSE RAMIREZ AND REMEDIOS  RAMIREZ, DEFENDANTS-APPELLANTS.

This appeal from the decision of the Court of First Instance of Leyte, rendered jointly in its Civil Cases Nos. 161 and
163, was originally taken to the Court of Appeals but subsequently certified to
this Court, only questions of law being involved.

Sometime in July of 1935 one Matilde Cantiveros died intestate in Carigara,
Leyte.  She was survived by her husband, Bruno
Modesto, but left neither ascendant nor descendant.  On October 12 of the same year Bruno Modesto
filed an intestate proceeding in the Court of First Instance of Leyte (Sp. Proc. No. 2515), praying that he be named
administrator of the estate and eventually declared the deceased’s only
heir.  Before the peti­tion could be
finally resolved one Zosima de la Cruz presented for
probate in the same proceeding a document purporting to be the last will and
testament of the deceased.  For lack of
sufficient funds at that time to meet the considerable-expense likely to be
incurred in opposing Zosima de la Cruz’s petition,
Bruno Modesto entered into a contract with several other parties on March 4, 1936, the pertinent portions
of which provide:

SEPAN TODOS LOS QUE LA PRESENTE VIEREN

Que nosotros
Bruno Modesto, esposo de la difunta
Dña. Matilde Cantiveros y de Tanauan, Leyte, Restituto Anopol, y I. Gustavus Bough* representante de los herederos de la difunta Basilia Anopol, todos de Carigara, Leyte, y Carmen Anopol de Tacloban, Leyte, por la presente
irrevocablemente hacemos constar que en la reparticion de los bienes de la difunta Dña. Matilde Cantiveros
hecha por el Sr. Bruno
Modesto en el sentido que una tercera parte
quede con el; y una tercera parte sea dividida entre los arriba mencionados
Resti­tuto Anopol, I. Gustavus Bough, Sergio Anopol y
Carmen Anopol; y que una tercera parte
sea usada para pagar los gastos
ocasionados en la litigacion
motivada por un alegado testamento presentado por el Abogado Salazar en la Corte de la Primera
Instancia de Tacloban, Leyte; y con esta reparticion estamos conformes.

Esta tercera parte se entiende es para pager los
gastos solamente que ocasionara en la latigation de la una tercera parte perteneciente
y que corresponde a Restituto Anopol, I. Gustavus Bough, Sergio Anopol y
Carmen Anopol; y como nadie de los herederos
dispone suficientes fondos para sufragar
los gastos que necesariamente vs a ocurrir, y para pagar dichos
gastos; nosotros todos los herederos
hemos suplicado, ofrecido y entregado bajo esta escritura
al Dr. I. Gustavus Bough de Carigara,
Leyte, la una tercera parte de todos los bienes
de la difunta Dña. Matilde Cantiveros en consideracion y en compensacion para los gastos
de esta litigacion que al Dr. Bough ha compromentido
de pagar en favor de los arriba mencionados Restituto Anopol, I. Gustavus Bough, Sergio Anopol y
Carmen Anopol.

Se entiende
ademas que la parte que sera entregada al mencionado Dr. I. Gustavus Bough, en compensacion
de sus gastos sera una tercera paste de todos los biehes
de la difunta Dña. Matilde Cantiveros, sin reserva de cualquiera naturaleza; caso que el asunto se decide el Juzgado en favor del
solicitante del
abintestato Sr. Bruno Modesto; y que
esta tercera parte sera entregada al arriba dicho Dr. I. Gustavus Bough inmediatamente despues de haber dictado sentencia favorable las cortes competentes.

In time the Court of First Instance of Leyte
denied the probate of the document presented by Zosima
de la Cruz and declared Bruno Modesto the sole heir of his deceased wife.  Upon appeal to the Court of Appeals (CA–G.R.
No. 3247), the decision of the lower court was affirmed on February 29, 1940.  This decision has long become final.

Sometime in May of 1941 I. Gustavus
Bough and Carmen Anopol commenced suit in the Court
of First In­stance of Leyte (Civil Case No. 5285),
praying that Bruno Modesto be ordered to partition the properties left by Matilde Cantiveros in accordance
with the contract above-quoted.  Judgment
was rendered by said court in favor of plaintiffs Bough and Anopol,
and upon appeal to the Court of Appeals (CA-G.R. No. 2224-R), the same was
modified in a decision promulgated on June
16, 1949.  Considering the
action not as one for partition strictly but only as an action intended to
determine the rights of the parties under the terms of the private contract,
the Court of Appeals ruled:

“1. The
contract Exhibit B is declared valid and binding upon all parties thereto, with
the understanding that the same shall be effective and enforceable only upon
the net estate of the deceased Matilde Cantiveros adjudicated to her only intestate heir, Bruno
Modesto.  For the purpose of making said
con­tract effective, a copy of this judgment shall be served upon the
administrator of the estate of said deceased Matilde Cantiveros and another
copy should be filed in the record of Special Proceeding No. 2515, where the in­terested
parties may ask for the corresponding order of delivery of their respective
shares;

“2. The
plaintiff, Tarcela R. Vda.
de Bough, in her capacity as an administratrix of the
intestate estate of the deceased I. Gustavus Bough,
is hereby ordered to pay the sum of P4,250.00 to the administrator of the
intestate estate of the deceased Matilde Cantiveros as reimbursement of an equal amount paid by the latter to the heirs of the
deceased Ruperto Kapunan.  Thus modified, the appealed judgment is
affirmed in all other respects, with costs.”

This decision has also long become final.

In the meantime, during the pendency of
Civil Case No. 5285 certain transactions took place with respect to portions of
the 61 parcels of land which comprised the estate of the deceased Matilde Cantiveros.  It appears that on September 12, 1943 Bruno Modesto sold to the
spouses Jose and Remedios Ramirez a 566.46 sq. m.
parcel of land situated at District Bayabay, Carigara, Leyte  (Exh.
“1”).  This sale was
subsequently confirmed in a more formal document (Exh.
“2”) drawn up and signed anew by Bruno Modesto on January 21, 1947.  And in another separate transaction, Bruno
Modesto, in a document dated January 7,
1946 and entitled “VENTA CON PACTO DE RETRO” (Exh. “4”), conveyed to Juan Lloren
a 1,200 sq. m. residential lot located in Carigara, Leyte.

It was against the foregoing backdrop that Tarcela
Vda. de Bough, in her capacity as administratrix
of the estate of the late I. Gustavus Bough, who had
died before then, as well as his children by his first wife, the deceased Basilia Anopol, commenced in the
court a quo Civil Cases Nos. 161 and 163 against the spouses Jose
and Remedios Ramirez and against Ponciano
Lloren, respectively. 
The administrator of the estate of Bruno Modesto, who had likewise died
in the interim, was also impleaded as party
defendant.  The complaints in the two
cases are similarly worded and contain a common plea:  to order the respective defendants to deliver
to the plaintiffs the parcels of land disposed of by Bruno Modesto, allegedly
without judicial authority, during the pendency of
the special proceeding for the settlement of the estate of Matilde
Cantiveros.

Eventually, and in view of the fact that the plain­tiffs had the
same evidence in both cases, a joint trial was agreed to by the parties
although the defendants were allowed to present their respective evidence
separately.  In time the court a quo
rendered the joint decision now on appeal, the dispositive
portion of which reads:

“FOR ALL THE FOREGOING, the Court declares that the property
in Civil Case No. 161 and the properties in Civil Case No. 163 pertain to the
Intestate Estate of Matilde Cantiveros,
Sp. Proceeding 2515, and the defendants are therefore ordered to deliver the
said properties to the administrator of
the said estate subject to a refund to Ponciano Lloren of the necessary improvements he may have made on
the house built on one of the parcels in Civil Case 163 which the Court
conservatively estimates at P1,500.00 considering that the house is 60%
depreciated due to lack of painting; without costs and without damages; the
plaintiffs may file their claim for a partition of the estate in the Special
Proceedings 2515 before this Court as required in Exhibit A, and the defendants
may intervene in said Special Proceedings 2515 to claim for a reimbursement
from the share pertaining to Bruno Modesto.”

Unable to secure a reconsideration of the decision, the
defendants interposed this appeal, alleging that the trial court erred:  (1) in not dismissing the two cases
notwithstanding its finding that the plaintiffs had not acquired ownership of
the properties in question nor were they entitled to the possession of the
same; (2) in holding that the sales made to the defendants were null and void;
and (3) in not holding that the defendants are owner of the parcels of land in
question.

The defendants submit that the two cases should have been
dismissed on the basis of the following findings of the court below, to wit:

“x x x  The amended as well as the original complaint
in both cases is captioned ‘Sobre Propiedad‘
yet in the same, the plaintiffs do not pretend to have proprietary rights over
the parcels of land described in the two cases, but they seek that the said
properties be delivered to them x x x.  If the purpose of
the plaintiffs is to recovers the possession of these properties, this Court
cannot in these civil cases originally filed before it to recover such recover
such possession pass judgment on the legality of said possession, it appearing
admitted by the plaintiffs that the defendants Ramirez in Civil Case 161 had
been in possession of the property in said case since 1947 while the defendant Lloren in Civil Case 163 had possessed the lands described
in the complaint in 1945, it not appearing in the complaint that the plaintiffs
had for once been in possession of the respective properties in each of the
civil cases.  The plaintiffs neither have
a cause of action to recover the ownership of the property it not appearing in
the complaint that they claim rights of ownership over the specific properties
described in each of the Civil Cases 161 and 163.  Neither had it been proven that the
plaintiffs in the two cases have ever possessed the land that they have sought
to recover.  x x
x“

Considering the foregoing findings in relation to the relief
sought in the complaints, the cases should indeed have been dismissed.  Said relief, which is identical in both
cases, is for judgment ordering the defendants to deliver the lands in question
to the plaintiffs.  Since the latter are
not the owners thereof, nor even the previous possessors, the trial court correctly
ruled that they have no cause of action to recover either ownership or
possession.  The same court, however,
disregarded the plaintiffs’ lack of a cause of action and, proceeding upon a
theory not alleged or relied upon in the complaints, annulled the sales of the
lands in favor of the defendants, on the ground that they had been executed by
Bruno Modesto without authority of the pro­bate court in the intestate of the
deceased Matilde Cantiveros,
and ordered that they be returned to the administrator thereof so that they may
be the object of partition to be claimed therein by the plaintiffs.

Aside from the fact that the relief thus granted is not the
relief prayed for, it does not appear justified by the facts of record and is
at best premature.  It should be noted
that in Civil Case No. 5285 filed by the spouses I. Gustavus
Bough and Carmen Anopol in 1941 and then appealed to
the Court of Appeals (CA-G.R. No. 2224-R), the said court, in its decision of
June 16, 1949, spelled out the rights of the plaintiffs under the contract of
March 4, 1936 and the procedure that should be followed “for the purpose
of making said contract effective,” namely:

“… a copy of this judgment shall be served upon the
administrator of the estate of said deceased Matilde Cantiveros and another copy should be filed in the record
of Special Proceeding No. 2515, where the interested parties may ask for the
corresponding order of delivery of  their
respective shares.”

The plaintiffs did not follow the procedure indicated by the
Court of Appeals.  No judicial partition
appears to have been made in the intestate proceeding of the deceased Matilde Cantiveros.  What does appear, however, and is in fact
alleged in the complaints in these two cases, is that the plaintiffs received
from Bruno Modesto a number of par­cels of land corresponding to their share in
the estate, although they say that the same is less than the entirety of such
share.  Neither the complaints nor the
decision appealed from nor the briefs for the parties show that the delivery of
the said parcels to the plaintiffs was with the authority or subsequent
approval of the court in the intestate case, or how much of their share remains
unsatisfied.  And although there is an
allegation in the complaints that the properties still in the hands of the
administrator are insufficient to cover the unsatisfied portion, such
allegation has not been established.

We gather from the record that until now Intestate Proceeding No.
2515 has not been closed and the estate of the deceased Matilde
Cantiveros has not been definitely settled.  What the plaintiffs should have done was to
enforce the judgment of the Court of Appeals in CA–G.R. No. 2224 by presenting
their claim for partition in the said proceeding instead of filing the present
action for recovery in their own behalf. 
Considering that without having presented such claim and without
authority of the court they received from the then administrator, Bruno Modest,
a number of parcels pertaining to their share in the estate, they are in no
position to complain that Bruno Modesto, as such administrator or as the
universal heir (to the estate of his wife) could only dispose of his rights and
interest in an aliquot portion thereof – not of specific properties as he did
in favor of the herein defendants.  Thus,
until it can be shown that the parcels of land already received by the
plaintiffs are indeed short of the share to which they are entitled, as
adjudged by the Court of Appeals and that the properties still remaining in the
hands of the administrator are insufficient to cover the shortage, the judgment
appealed from, ordering the defendants to return to the estate the properties
they have purchased, is premature.  And
such showing can be made by the plaintiffs only by enforcing the judgment of
the Court of Appeals, namely, by filing a claim in the intestate proceeding for
the completion of their share.  For the
defendants to be singled out and compelled to return the properties in question
to the estate in advance of such showing would be unfair to them, since other
properties – fifteen parcels out of the 61 comprising the estate, according to
the record – were similarly disposed of by Bruno Modesto in favor of other
persons, against whom no actions for recovery appear to have been filed by the
plaintiffs.

WHEREFORE, the judgment appealed from is hereby reversed
insofar as it declares that the properties subject of these two cases pertain
to the Intestate Estate of Matilde Cantiveros Sp. Proceeding No. 2515, and orders their
delivery to the administrator thereof; and affirmed insofar as it directs the
plaintiffs to file their claim for partition in said proceeding, subject to the
right of defendants to intervene therein for the protection of their
interests.  This judgment is without
prejudice to the right of plaintiffs to pursue the corresponding remedies and
file such actions as may be proper against the herein defendants should the
properties remaining in the estate of the deceased Matilde
Cantiveros turn out to be insufficient to satisfy the
portions pertaining to plaintiffs in accordance with the decisions of the Court
of Appeals in CA-G.R. No. 2224-R.  No
pronouncement as to costs.

Concepcion, C.J., Zaldivar,
Ruiz Castro, Fernando, Teehankee, Barredo,
Villamor, and Makasiar, JJ., concur.

Reyes, J.B.L., J., concurs in
the result.

*
I. Gustavus Bough was married twice:  first to Basilia Anopol and later to Carmen Anopol.