MARGARITA BENITO AND JULIANA BENITO, PETITIONERS, VS. SAMUEL ENERO, RESPONDENT.

This
action was commenced in the Court of First Instance of Nueva Vizcaya to
revindicate the land described in the complaint and recover damages.
Defendant alleged as special defenses that he was the owner of the
above-mentioned land in virtue of the conveyances mentioned in his
answer. After the trial, the Honorable Jose R. de Venecia, Judge,
handed down a judgment “declaring the plaintiffs absolute owners with
the right to the possession of the land in question and condemning the
defendant to restore” it to the plaintiffs. On appeal, the 5th Division
of the Court of Appeals reversed the trial court’s judgment in a
decision which is now before us for review.

The facts of the case as found by the Court of Appeals may be condensed as follows:

Estefanio Benito, plaintiffs’ father, was the holder of a homestead
patent issued on August 8, 1930 covering a tract of land having an area
of three hectares plus and situated in barrio La Torre, municipality of
Bayombong, Province of Nueva Vizcaya. It was conjugal property,
Estefanio Benito being married to Apolonia Corpuz, and identified as
Cadastral Lot No. 1108.

Shortly after the issuance of the
patent Estefanio Benito, who died in 1934, donated one-fourth of that
lot to his brother, Saturnino Benito, and one-fourth to another
brother, Eugenio Benito. These portions adjoin each other and
constitute the northern half of the entire lot.

It is
admitted on both sides that these donations were void because they were
made verbally or at the most by private documents and, besides, within
five years from the date of the patent.

But on November 3,
1935, after the patentee’s death and the expiration of the prohibition
period, Estefanio Benito’s widow executed a deed in favor of each of
her brothers-in-law. Drawn in identical form and properly notarized,
the two deeds, identified as Exhibits 3 and 5, contained these
paragraphs:

“That in the lifetime of my
husband Estefanio Benito, he ceded, conveyed and transferred portions
of said land to his brothers Saturnino Benito and Eugenio Benito, in
concept of donation, and ¼ of said property, which is the northernmost
part of the land above described was ceded, transferred and donated to
Saturnino Benito, married to Agustina Apolinar.

“Now, then,
for the formalization of said donation, in view that the donation
executed by my deceased husband was executed in a private document, and
complying with the request of Saturnino Benito to formalize said
donation by way of public document in my capacity as widow of Estefanio
Benito and administratrix of the properties left by him, and in
consideration further of the fact that this act and deed is but the
formalization of the very act of my deceased husband, by these presents
I hereby convey and transfer unto said Saturnino Benito married to
Agustina Apolinar, of legal age and a resident of the barrio of Bonfal,
Bayombong, Nueva Vizcaya, the northernmost portion of the property
above described * * *.”

On each instrument the corresponding donee stamped his acceptance of the donation as in such cases made and provided.

On April 4, 1935, and April 13, 1936, Saturnino Benito and Eugenio
Benito sold their respective holdings and delivered the possession
thereof to Toribia Castriciones in consideration of P320 and P180,
respectively. On October 12, 1938, Toribia Castriciones in turn donated
both portions in a public document to Samuel Enero, her grandson, who
then and there duly accepted the donation and took immediate possession
of the land donated. Enero has been in actual possession ever since.

None of the afore-mentioned deeds were registered, and realizing the
defects in his title, Enero instituted case No. 68 in the Court of
First Instance in the same month. The case is referred to on the record
as a petition praying that “the petitioner be adjudged the absolute
owner of the two portions above described;” that “the deeds of donation
executed by the surviving spouse (Apolonia Corpuz) confirming the
donation executed by her husband in his lifetime be confirmed;” and
that “the donation executed by Toribia Castriciones in favor of the
petitioner be annotated at the back of the said certificate of title.”

Neither the petition at bar, the answer thereto, the briefs, nor the
decision of the trial court and of the Court of Appeals disclose who
the defendants or respondents are in case No. 68, but it does appear
that Apolonia Corpuz filed therein a so-called affidavit, now known as
Exhibit 7, in which she stated, among other things, that “after an
amicable settlement with the parties, I do hereby announce and state
that I withdrawn said verbal opposition and consent to have this motion
approved in favor of said petitioner.”

Case No. 68 was not
tried before or during the Japanese occupation, and as a result of war
operations, the record thereof was mixed up with other papers and was
not located until a few months after the present action was brought by
Apolonia Corpuz’ daughters against Enero.

According to the
Court of Appeals, Apolonia Corpuz at the trial admitted, as a witness,
that she had signed Exhibits 3 and 5 but undertook to prove that she
had done so because she had been led to understand that they were to
effect the transfer of the title to the land in the name of her
daughters. This testimony was not given credence by the Court of
Appeals.

The reasoning behind the Court of Appeals’ opinion runs substantially as follows:

The donations executed by Estefanio Benito in favor of his two brothers
were premature and illegal, contrary to the provisions of sections 118
and 124 of Commonwealth Act No. 141, and the widow could not, after the
death of her husband, act in his name to confirm and formalize said
donations. However, one-half of lot No. 1108 was hers, and although she
stated in Exhibits 3 and 5 that she was acting for and in the name of
her deceased husband, the conveyance resulting from her husband’s
donations was personally sanctioned in her affidavit Exhibit 7, so that
her half of the property, though in an undivided and pro-indiviso form,
had to be affected by her acts. This explains why in the case at bar
Apolonia Corpuz does not claim any right or interest over the lot in
question, which is claimed entirely by her children Margarita and
Juliana.

In conclusion, the defendant and appellant, Samuel
Enero, was absolved. The court explained: “Although, under the
circumstances of the case, it would be better to assign to him the
northern half thereof, yet the pleadings in this case do not authorize
us to make any adjudication of the property, which shall be made in
case No. 68 of the Court of First Instance of Nueva Vizcaya, where
appellant’s petition (Exhibit 6) is still pending determination.”

The plaintiffs’, now petitioners’, sole exception to the decision of
the Court of Appeals is that the Appellate Court “resorted to interpret
or construe said deeds, Exhibits 3 and 5,” which, it is contended, the
Court should not have done, “because their terms are unmistakably clear
* * *, and also because the question of interpretation or construction
was never raised in issue in the trial court, either by the parties’
pleadings, particularly the defendant’s answer or by his evidence;
neither was such issue stressed in the appellant’s, now respondent’s,
brief.”

The defendant set up title to the property in
litigation, and introduced Exhibits 3, 5 and 7, among others, in
evidence. The Court of Appeals’ decision agrees in the result with
defendant’s thesis that he was the lawful owner of the questioned
portions of the homestead. As we see it, the variance between the
position taken by the defendant and the Court of Appeals’ decision lies
in the fact that, whereas defendant’s counsel is said to have
maintained that Exhibits 3, 5 and 7 were rooted in, and therefore
dependent on, the donations made by Estefanio Benito, the Appellate
Court held that these instruments, in and by themselves, operated to
convey the property therein described or another equivalent portion.

We do not think that this variance, if variance it be, was a
substantial departure from the pleadings, nor is it contended that it
has misled the plaintiffs. The discrepancy was nothing but a divergence
in conclusions of law drawn from the facts set out in the answer and
relied upon by the defendant. This is not the kind of variance between
decision and pleadings that is forbidden by the rules of practice. Thus
it has been held that plaintiff is entitled to the relief to which the
facts entitle him even though his own theory of the relief may have
been unsound. (Truth Seeker Co., Inc. vs. Durning, 8 Fed. Rules
Service, p. 824; U. S. Circuit Court of Appeals, 2nd Circuit, January
18, 1945, cited in the footnote in I Moran’s Commentaries on the Rules
of Court on page 632.) If this is true with plaintiff, who is on the
affirmative side, it should even be more so with defendant, who is not
called upon to formulate any theory beyond stating the bare facts in
support of his denial.

On the appraisal of the deeds
executed by Apolonia Corpuz in favor of Saturnino and Eugenio Benito,
we agree with the Court of Appeals. These deeds were more than mere
formalization or ratification of the donations previously made by
Estefanio Benito to his brothers. We are of the opinion that Exhibits 3
and 5, standing alone and independent of the deceased’s donation, were
sufficient in form and intent to pass title. Note that, although
Apolonia Corpuz in the recital seemed to consider the deeds as “the
formalization of the very act of my deceased husband,” yet she said in
the habendum: “I hereby convey and transfer unto said Saturnino
Benito (or Eugenio Benito) * * * the northernmost portion of the
property above described * * *.” Regarded, as well they may be, as
deeds of donation, Exhibits 3 and 5, as already seen, were done in the
manner provided by law after the five-year period in which the
alienation of the property was prohibited, and the donations were duly
accepted by the donees. The fact that Apolonia Corpuz’ interest in the
homestead was indeterminate may have affected or voided the donations
as regards the identity of the portions donated, but it did not the
intrinsic validity of the donations. A deed which purports to convey a
greater estate than the grantor has will be void only as to the excess,
and construed as a conveyance of that which it was in the grantor’s
power to convey. (26 C. J. S., 418.)

The question which may
be open to doubt is the extent of the estate conveyed by Exhibits 3 and
5. Apolonia Corpuz was owner of an undivided half of the homestead and
her children of the other half, but the aforesaid documents purported
to convey one specified part of the entire lot. Did the said documents
operate to transfer all the grantor’s undivided interest in lot No.
1108 or did the grantees take only one-half undivided interest in the
northern portion of it, which was the subject matter of the two deeds?

We do not have to decide, and do refrain from deciding, this point,
however, because Apolonia Corpuz who, besides the respondent, is the
only person to be affected by any decision on this score is not a party
to the instant proceedings. This point will have to be left open for
consideration in case No. 68 in which she is defendant.

The
preceding discussion suggests a fundamental, may, fatal, defect in the
plaintiffs’ action which heretofore has been overlooked and which now
should be emphasized. The plaintiffs have no valid cause for the
present petition for certiorari; in fact they had no cause of action in
the first instance and the suit should have been dismissed on this
ground by the trial court. Their father’s one-half interest in lot No.
1108, which is all they inherited, is not in any shape impaired by the
decision of the Court of Appeals; nor is, and was at the time of the
commencement of the action, alive except that in the present state of
indivision of the property they are coowners of each and every part of
it. In other words, they had and have now no right to question Exhibits
3 and 5 beyond demanding that the common property be partitioned
instead of one specific part of it, the northern half, being allotted
to their mother or her successors-in-interest. Yet they did not and do
not now seek this remedy. What they sought and still seek is to recover
for themselves the land in questions as though they exclusively owned
the whole lot in fee simple.

To recapitulate, the action
should be dismissed as the Court of Appeals ruled. The plaintiff’s
right is limited to asking for the partition of lot No. 1108 according
to law and the rule of court on partition of property held in common.
This right may be pursued and decided in case No. 68, which is supposed
to be pending trial, and so should be the question relative to the
extent of Apolonia Corpuz’ share assigned by her, a question which
depends in a measure upon the parties’ intention to be determined from
the evidence. Whatever rights may have inured to the parties with
reference to the improvements they may have introduced should also be
adjudicated in the partition, or taken into account in effecting it
along with Enero’s long possession.

The decision of the
Court of Appeals will be affirmed subject to the reservations and
indications set forth in this opinion, with costs against the
petitioners.

Paras, C. J., Pablo, Bengzon, Padilla, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.