GERTRUDES DE LOS SANTOS, PLAINTIFF-APPELLEE, VS. MAXIMO DE LA CRUZ, DEFENDANT-APPELLANT.

Direct appeal to this Court on questions of law
from the judgment of the Court of First Instance of Rizal,
Branch IX, in its Civil Case No. Q-8792.

From the record of this case, we cull the following salient
facts:  On May 21, 1965, Gertrudes de los Santos filed a
complaint for specific performance against Maximo de
la Cruz, alleging, among others, that on August 24, 1963, she and several
co-heirs, including the defendant, executed an extrajudicial partition
agreement (a copy of which was attached to the complaint) over a certain
portion of land with an area of around 20,000 sq. m.; that the parties thereto
had agreed to adjudicate three (3) lots to the defendant, in addition to his
corresponding share, on condition that the latter would undertake the
development and subdivision of the estate which was the subject matter of the
agreement, all expenses in connection therewith to be defrayed from the
proceeds of the sale of the aforementioned three (3) lots; that in spite of
demands by the plaintiff, by the other co-heirs, and by the residents of the
subdivision, the defendant refused to perform his aforesaid obligation although
he had al­ready sold the aforesaid lots. 
The plaintiff prayed the court to order the defendant to comply with his
ob­ligation under the extrajudicial partition agree­ment and to pay the sum of
P1,000.00 as attorney’s fees and costs.

In his answer, the defendant admitted the due execution of the
extrajudicial partition agreement, but set up the affirmative defenses that the
plain­tiff had no cause of action against him because the said agreement was
void with respect to her, for the reason that the plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the property, and was
included in the extrajudicial partition agreement by mistake; and that although
he had disposed of the three lots adjudicated to him, nevertheless the pro­ceeds
of the sale were not sufficient to develop and improve properly the subdivided
estate.  The answer contained a
counterclaim wherein the defendant alleged that the plaintiff had likewise sold
her share in the estate for P10,000.00, and that the extrajudicial partition
agreement being void insofar as the latter was concerned, he was entitled to
one-fourth (1/4) of the proceeds as his share by way of reversion.  The defend­ant prayed that the complaint be
dismissed; that the extrajudicial partition agreement be declared void with
respect to the plaintiff; and, on his counterclaim, that the plaintiff be
ordered to pay him the sum of P2,500.00.

On motion of the defendant, the court below entered an order on July 19, 1965, declaring the plain­tiff
in default for not having answered the counterclaim.

On July 6, 1966,
the case was submitted for decision on the following stipulation of facts:

“1.  That the parties admit the existence and
execution of the ‘Extra-Judicial Partition Agreement’ dated August 24, 1963,
which we marked as Exhibit ‘A’ for the plaintiff, and Exhibit ‘1’ for the
defendant, which partition agreement was marked as Annex ‘A’ in the complaint;

“2.  That the parties agree that the original
purpose of the above-mentioned Extra-Judicial Partition Agreement was for the
distribution of the land in question for the heirs of Pelagia
de la Cruz; however the parties further agree that several lots in the said
land have been sold by some of the co-heirs, and there are now several houses
constructed therein and residents therein;

“3.  That the parties agree that the defendant is
the appointed Administrator and In-charge of the development and subdivision of
the land in question, as provided for in the afore-mentioned extrajudicial part­ition
agreement;

“4.  That parties agree that Lots 1, 2 and 3 as
described on page 3, 3rd para­graph to the last of said partition agree­ment
have been sold by the defendant here­in; and parties further agree that there
are no properly constructed roads, nor pro­per light and water facilities;

“5.  That the parties agree that the defendant is
the nephew of the deceased Pelagia de la Cruz
aforementioned, who was the owner and predecessor in interest of the land which
was the subject matter of the extra-judicial partition agreement;

“6.  That the parties agree that the plaintiff is
the grandniece of the said Pelagia de la Cruz;

“7.  That Pelagia de la
Cruz died in­testate and without issue on October 16, 1962, as evidenced by a death certificate,
which is marked as Exhibit ‘2’ for the defendant; and

“8.  That Marciana de la Cruz is the mother of the plaintiff and the
niece of the said Pelagia de la Cruz, and that the
said Marciana de la Cruz died on September 22, 1935,
as evidenced by Exhibit ‘3’ for the defendant.”

In its decision dated November
3, 1966, the court a quo held that the defendant, being a
party to the ex­trajudicial partition agreement, was estopped
from raising in issue the right of the plaintiff to inherit from the decedent Pelagia de la Cruz; hence, he must abide by the terms of
the agreement.  The court ordered the
defendant “to perform his obligations to develop Lots 1, 2 and 3 of (LRC)
Psd-29561 as described on page 2 of the Extra-judicial Partition
Agreement” (meaning, ap­parently, that the defendant should develop the
subdi­vision because said Lots 1, 2 and 3 were intended to be sold for this
purpose), and to pay the plaintiff the sum of P2,000.00
as actual damages, the sum of P500.00 as attorney’s fees, and the costs.  No disposition was made of defendant’s
counterclaim.  The defendant filed a
“Motion for New Trial” but the same was denied.  Hence, this appeal.

The seven (7) errors assigned by defendant-appellant in his brief
boil down to the following:

1.   
The court a quo erred in not holding that
the extrajudicial partition agreement is null and void with respect to plaintiff-appellee, and, consequently, that plaintiff-appellee has no cause of action against
defendant-appellant.

2.   
The court a quo erred in holding that
defendant-appellant is estopped from questioning
plaintiff-appellee’s right to have the agreement
enforced.

3.   
The court a quo erred in ordering
defendant-appellant to pay actual dam­ages to plaintiff-appellee,
and, on the other hand, in not granting the relief prayed for by
defendant-appellant in his counterclaim.

We shall discuss seriatim these errors as thus condensed.

1.  In the stipulation of
facts submitted to the court below, the parties admit that the owner of the
estate, subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died intestate on October 16, 1962;
that defendant-appellant is a nep­hew of the said decedent; that plaintiff-appellee is a grandniece of Pelagia
de la Cruz, her mother, Marcia­na de la Cruz, being a
niece of the said Pelagia de la Cruz; that plaintiff-appellee’s mother died on Septem­ber 22, 1935, thus predeceasing
Pelagia de la Cruz; and that the purpose of the
extrajudicial partition agree­ment was to divide and distribute the estate among
the heirs of Pelagia de la Cruz.

The pivotal question is whether, in the premises, plaintiff-appellee is an heir of the decedent.  We are convinced that she is not.  Plaintiff-appellee
being a mere grandniece of Pelagia de la Cruz, she
could not inherit from the latter by right of representation.

“ART. 972.  The right of
representa­tion takes place in the direct descending line, but never in the
ascending.

“In the collateral line, it takes place only in favor of the children
of brothers or sisters, whether they be of the full or
half blood.”

Much less could plaintiff-appellee inherit in her own right.

“ART. 962.  In every
inheritance, the relative nearest in degree excludes the more distant ones,
saving the right of representation when it properly takes place.  x x
x.”

Applying these two (2) provisions, this
Court, in Linart y Pavia
vs. Ugarte y Iturralde, 5
Phil., 176 (1905), said:

“x x x
[I]n an intestate succes­sion a grandniece of the deceased can not participate
with a niece in the in­heritance, because the latter being a nearer relative,
the more distant grand­niece is excluded. 
In the collateral line the right of representation does not obtain
beyond sons and daughters of the brothers and sisters, which would have been
the case if Pablo Linart, the father of the
plaintiff, had survived his deceased uncle.”

In the present case, the relatives
“nearest in degree” to Pelagia de la Cruz
are her nephews and nieces, one of whom is defendant-appellant.  Necessarily, plaintiff-appellee,
a grandniece, is excluded by law from the inheritance.

But what is the legal effect of plaintiff-appellee’s
inclusion and participation in the extrajudicial partition agreement insofar as
her right to bring the present action is concerned?  They did not confer upon her the right to
institute this action.  The express
purpose of the extrajudicial partition agreement, as admitted by the parties in
the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz. 
Indeed, the said agreement itself states that plaintiff-appellee was participating therein in representation
of her deceased mother.  The pertinent
portion of the agreement is herein quoted, thus:

“NOW, THEREFORE, we x x x and Diego delos Santos, married
to Anastacia dela Cruz;
Mariano delos Santos, married to Andrea Ramoy; Gertrudes delos Santos, married to Pascual
Acuna; Alejo delos Santos, married to Leonila
David; and Sotera delos
Santos, married to Narciso Ramota;
all in representation of our mother, MARCIANA DELA CRUZ, x x x, do hereby by these presents,
mutually, voluntarily and amicably agree among ourselves to equitably divide
the pro­perty left by the deceased PELAGIA DELA CRUZ, and adjudicate unto
ourselves definite and independent portions of the estate in the following
manner x x x.”

It is quite apparent that in executing
the partition agreement, the parties thereto were laboring under the erroneous
belief that plaintiff-appellee was one of the legal
heirs of Pelagia de la Cruz.  Plaintiff-appellee
not being such an heir, the partition is void with respect to her, pursuant to
Article 1105 of the Civil Code, which reads:

“ART. 1105. 
A partition which includes a person believed to be an heir, but
who is not, shall be void only with respect to such person.”

Partition of property effected between a
person entitled to inherit from the deceased owner thereof and another person
who thought he was an heir, when he was not really and lawfully such, to the
prejudice of the rights of the true heir designated by law to succeed the
deceased, is null and void (De Torres vs. De Torres, et al., 28 Phil.,
49).  A fortiori, plaintiff-appellee could hardly derive from the agreement the right
to have its terms enforced.

2.  The extrajudicial
partition agreement being void with respect to plaintiff-appellee,
she may not be heard to assert estoppel against
defendant-appellant.  Estoppel
cannot be predicated on a void contract (17 Am. Jur.
605), or on acts which are prohibited by law or are against pub­lic policy (Baltazar vs. Lingayen Gulf
Electric Power Co., et al., G.R. Nos. 16236-38, June 30, 1965 [14 SCRA
522]).  In Ramiro vs. Graño,
et al., 54 Phil., 744 (1930), this Court held:

“No estoppel arises where the repre­sentation
or conduct of the party sought to be estopped is due
to ignorance founded upon a mistake.  And
while there is author­ity to the contrary, the weight of author­ity is that the
acts and declarations of a party based upon an innocent mistake as to his legal
rights will not estop him to as­sert the same, especially
where every fact known to the party sought to be estopped
is equally well known to the party setting up the estoppel.  (21 C.J., 1125,
1126.)”

And in Capili, et al. vs. Court of Appeals, et al., G.R. No.
L-18148, February 28, 1963
(7 SCRA 367), this Court said:

“Finally, petitioners-appellants claim that appellees are estopped to raise
the ques­tion of ownership of the properties involved because the widow
herself, during her life­time, not only did not object to the inclusion of
these properties in the inventory of the as­sets of her deceased husband, but
also signed an extra-judicial partition of those invento­ried properties.  But the very authorities cited by appellants
require that to constitute estoppel, the actor must
have knowledge of the facts and be apprised of his rights at the time he per­forms
the act constituting estoppel, because silence
without knowledge works no estoppel.  x x
x.”

3.  The award of actual
damages in favor of plaintiff-appellee cannot be
sustained in view of the conclusion we have arrived at above.  Furthermore, actual or compensatory damages
must be duly proved (Article 2199, Ci­vil Code).  Here, no proof of such damages was presented
inasmuch as the case was decided on a stipulation of facts and no evidence was
adduced before the trial court.

We now come to defendant-appellant’s counter­claim, in which he
alleges that plaintiff-appellee sold her share to a
certain person for the price of P10,000.00, and claims that he is entitled to
one-fourth (1/4) of the proceeds by right of reversion.  It will be noted that plaintiff-appellee had been de­clared in default on
defendant-appellant’s counterclaim; but the latter did not present any evidence
to prove the material allegation therein – more speci­fically, the alleged sale
of the former’s share for the sum of P10,000.00.  That no such
evidence had been adduced is understandable, for the parties expressly
submitted the case for the resolution of the court upon their stipulation of
facts which, unfortunately, did not make any mention of the alleged sale; and
neither had defendant made any offer or move to introduce the necessary
evidence to that effect for the consi­deration and evaluation by the trial
court.

Defendant -appellant contends, however, that in view of
plaintiff-appellee’s having been declared in default,
the latter must be deemed to have admitted all the allegations in his
counterclaim, so that the court a quo should have granted the relief
prayed for by him.  We find no merit in
this contention.

Section 1, Rule 18 of the Revised Rules of Court, reads:

“SECTION 1.  Judgment by default.
– If the defendant fails to answer within the time specified in these rules,
the court shall, upon motion of the plaintiff and proof of such failure,
declare the defendant in de­fault.  Thereupon the court shall proceed to receive
the plaintiff’s evidence and render judgment granting him such relief as the
com­plaint and the facts proven may warrant. 
This provision applies where no answer is made to a counterclaim,
cross-claim, or third-party complaint within the period provided in this
rule.”

The abovequoted
rule was taken from Sections 128 and 129 of the Code of Civil Procedure.  In Macondray &
Co. vs. Eustaquio, 64 Phil., 446 (1937), this Court
said:

“Under section 128 of our Code of Civil Procedure, the
judgment by default against a defendant who has neither appeared nor filed his
answer does not imply a waiver of rights except that of being heard and of
presenting evidence in his favor.  It
does not im­ply admission by the defendant of the facts and causes of action of
the plaintiff, because the codal section requires the
latter to adduce his evidence in support of his allegations as an indispensable
condition before final judgment could be given in his favor.  Nor could it be interpreted as an ad­mission
by the defendant that the plaintiff’s causes of action find support in the law
or that the latter is entitled to the relief prayed for.  x x
x.”

Nevertheless, the basic fact appears in the stipulation submitted
by the parties that said plaintiff-appellee admitted
having received a portion of the estate by virtue of the extrajudicial
partition agreement dated August 24,
1963, to wit:

“(9). Lot 9, (LRC) Psd-29561, containing an area of
1,691 sq. m. as described in the Technical Description to be adjudicated to
Diego delos Santos, married to Anastacia
dela Cruz; Mariano Santos, married to Regina Baluyot; Hilario delos Santos, married to Andrea Ramoy;
Gertrudes delos
Santos, married to Pascual Acuna;
Alejo delos Santos, married
to Leonila David; and Sotera
delos Santos, married to Narciso
Ramota, in co-ownership, share and share alike.”

Such being the case, defendant-appellant
is apparently correct in his contention that the lower court erred in not
passing on his counterclaim and, consequently, in not sentencing appellee to turn over to him his corresponding share of
said portion received by appellee under the void
partition.  Remote relatives or unrelated
persons who unduly received and took possession of the property of a deceased person
without any right, by virtue of a null and void partition, must restore it to
the legitimate successor in the inheritance (De Torres vs. De Torres, et al., supra).  Of course, if such share has already been
disposed of by appellee to a bona fide purchaser,
as seems to be indicated in the unproven al­legations of the counterclaim, We
cannot render judg­ment awarding any specific amount to defendant-appel­lant as
his proportionate share of the proceeds of such sale for the reason that, as
already stated above, this aspect of the counterclaim has not been touched upon
in the stipulation of facts nor has it been supported by evidence which
appellant should have presented in the lower court but did not.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment
appealed from is hereby reversed and set aside; the defendant-appellant is
absolved from any liability to and in favor of plaintiff-appellee;
and, on appellant’s counterclaim, appellee is hereby
sentenced to restore or reconvey to him his
corresponding share of the property she has received under the extraju­dicial
partition hereinbefore mentioned if the same has not already been disposed of
as alleged.  Costs in
both instances against plaintiff-appellee.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Ruiz Castro, Fernando, Teehankee,
Barredo, and Makasiar, JJ., concur.