JOSEFINA POTESTAS CABRERA AND CRESENCIA POTESTAS OMULON, PLAINTIFFS AND APPELLEES, VS. MARIANO T. TIANO, DEFENDANT AND APPELLANT.

Ciriaco Potestas and Gregoria Blanco, were parents of
five children, Isabelo, Lourdes, Clemente, Josefina and
Cresencia. Gregoria died before the second world war,
together with Cleraente, single. During their lifetime,
the spouses acquired properties, among which was a parcel of agricultural land, of about seven (7) hectares,
located at barrio Manga, municipality of Tangoib, Misamis
Occidental, planted to coconuts and fruit-bearing trees.
On July 2, 1947, Ciriaco, the surviving husband and three
(3) children (Isabelo, Lourdes and Cresencia), purportedly sold the above mentioned parcel to herein defendant
Mariano T. Tiano, for P3,500.00. At the time of the
sale, Cresencia was a minor, and the other child, Josefina,
did not sign the deed of sale, and did not know about the
transaction.

Under date of June 20, 1957, an action for “Partition
and Recovery of Real Estate, with Damages” was filed by
Josefina and Cresencia against Tiano. In the complaint,
it was alleged that they were entitled to a portion of the
land, since Josefina did not sign the sale and Cresencia
was a minor; that defendant Tiano had usurped the portions belonging to them, to their damage and prejudice in
the amount of P7,000.00, which consisted of their share in
the produce of the property, during the period of defendant’s possession.

In Answer, defendant claimed that the plaintiffs herein
knew of the sale and that he was not aware of any defect
in the title of his vendors. As a Special Defense, defendant alleged that he was the absolute owner of the
land by acquisitive prescription of ten (10) years, from

the date of purchase. Before the trial, the parties agreed
to a stipulation of facts, parts of which recite—

“3. That at the time of the sale, appearing in Doc. No. 54,
Page 81, Book No. 7, S. 1947, in the book of Notary Public Basilio
Binaoro of Tangub, Mis. Occ., Cresencia was a minor being only
16 years old, while Josefina who was long married and of legal
age did not give her consent to the same;

4. That the plaintiffs commenced this case against the Defendant on June 20, 1957, and the judicial summons was issued by the
Clerk of Court on June 21, 1957, but defendant received the same
on July 2, 1957.”

After hearing, the court a quo rendered the following
judgment—

“Wherefore, premises considered, the court hereby renders judgment declaring that the plaintiffs are entitled each to 1/8 of the
property in question and therefore, judgment is hereby ordered
declaring them entitled to partition the property in question in
proportion of 1/8 each of them, plus damages for both of them
in the amount of P1,000.0O and attorney’s fees in the amount of
P200.00.”

The trial court in the same decision, commissioned
the Deputy Provincial Sheriff, to partition the property in question
and render a report within 30 days. Defendant moved for a
reconsideration of the decision, contending that prescription had
already set in, and his (defendant’s, title, had become irrevocable,
and that the award of damages had no factual and legal basis. The
motion for reconsideration was denied on March 5, 1960. The
Commissioner’s report, partitioning the property was submitted on April
11, 1960. Defendant perfected his appeal on May 9, 1960, and on May 14,
1960, the same was given due course and elevated to this Court.

In claiming that prescription had taken place, appellant insists that the period should be counted from the
date the summons was served on him, which was on July
2, 1957. It was agreed, however, that the complaint for
the recovery of the land in question was presented on

June 20, 1957, and the summons was sent out the following day. The Civil Code, provides that—

“The prescription of actions is interrupted when they are filed
before the court, when there is a written extra-judicial demand
by the creditors, and when there is any written acknowledgment
of the debt of the debtor.” (Art. 1155).

Since the sale of the property took place on July 2, 1947,
the ten (10) year period within which to file the action
had not yet elapsed on June 20, 1957, when the complaint
was presented. While it is true that the sale in question
had taken place before the effectivity of the new Civil
Code and the law then on matter of prescription was Act
No. 190, said law, however, contained no specific provision
on the interruption of the prescriptive period; and the
established rule then, as it is the rule now, is that the
commencement of the suit prior to the expiration of the
applicable limitation period, interrupts the running of the
statute, as to all parties to the action (34 Am. Jur., Sec.
247, pp. 202-203; Peralta, et al. vs. Alipio, 97 Phil. 719).
The fact that summons was only served on defendant on
July 2, 1957, which incidentally and/or coincidentally was
the end of the ten (10) year period, is of no moment,
since civil actions are deemed commenced from date of
the filing and docketing of the complaint with the Clerk of
Court, without taking into account the issuance and service
of summons (Sotelo vs. Dizon, et al., 67 Phil. 573). The
contention that the period was not interrupted until after
defendant received the summons is, therefore, without legal
basis.

Defendant-appellant claims that he had already acquired
full ownership of the property in question because the
judicial summons, which could civilly interrupt his possession (Art. 1123 N.C.C.), was received by him only on
July 2, 1957. Conceding, for the purposes of argument,
that the article cited is applicable, still appellant cannot avail
himself of acquisitive prescription, for the simple reason

that no finding was made by the trial court that his possession from the time of the sale (July 2, 1947), was with
just title, in good faith, in the concept of an owner, public,
peaceful, adverse and uninterrupted (Arts. 1117 and 1118
N.C.C.). Good faith is a question of fact which must be
proved (Art. 1127 N.C.C.). For the purposes of acquisitive prescription, just title must also be proved, it is
never presumed (Art. 1131 N.C.C). The factual requisite
of adverse possession do not appear in the stipulation of
facts and the trial court did not make findings to this
effect. These circumstances could and/or should have been
ventilated, had the appeal been taken to the Court of
Appeals. Defendant, however, having chosen to appeal
the decision directly to this Court, he is deemed to have
waived questions of fact and raised only questions of law.
There being no factual finding by the lower court of the
presence of the requisites of acquisitive prescription, this
Court has to reject, as did the trial court, said defense.
Moreover, on July 2, 1957, when the summons was received, the ten (10) years necessary for acquisitive
prescription had not yet elapsed. In fact, said period
terminated on that very day.

As to the award of damages, We find Ourselves devoid
of ample authority to review the same, since it involves
appreciation of facts. It cannot be denied, as found by
the lower court, that plaintiffs herein are entitled to a share in the land. Verily, they should also share in the
produce, which, admittedly, was enjoyed by the defendant-appellant herein.

Wherefore, the decision appealed from should be, as it
is hereby affirmed. Costs against appellant in both instances.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion
Barrera, Dizon, Regala and Makalintal, JJ., concur.