JOSE BRILLANTES, PLAINTIFF AND APPELLANT, VS. LORENZO MARGAREJO AND CELESTINA BELMONTE, DEFENDANTS AND APPELLEES.

The prayer of the complaint in this action is for the annulment of deed of
sale executed on the 10th day of August, 1903, by plaintiff’s wife, Celestina
Belmonte, which conveyed a parcel of land, forming part of her paraphernal
property, to the defendant Lorenzo Margarejo, and further for the recovery of
possession of the land therein mentioned, on the ground that the deed of sale
was executed by plaintiff’s wife after her marriage and without his authority,
knowledge, or consent. The complaint was filed on the 12th day of March, 1915.
Defendant pleaded prescription of the action thus instituted and judgment was
rendered in his favor on various grounds, including that of the prescription of
the action.

It is contended that since the evidence discloses that the wife of the
plaintiff is still alive, the action should not be held to have prescribed under
the provisions of article 1301 of the Civil Code, which are as follows:

“The action for nullity shall last four years. This term shall commence to
run: * * * when the purpose of the action is to invalidate contracts made by a
married woman, without consent or competent authority, from the date of
dissolution of the marriage; * * *”

We are of opinion, however, that the provisions of this article, as also the
provisions of article 1299 of the Civil Code, which relate to actions brought
for the rescission of contracts and which were relied upon by the plaintiff in
the court below, have been repealed by the provisions of chapter 3 of the Code
of Civil Procedure. (Cf. Willard’s Notes to the Spanish Civil Code, p. 75.)

Section 39, contained in that chapter, provides that: “civil actions can only
be commenced within the periods prescribed in this chapter after the cause of
action accrues: * * *”

Section 40, also contained in that chapter, provides that: “an action for
recovery of title to, or possession of, real property, or an interest therein,
can only be brought within ten years after the cause of such action
accrues.”

Section 43, also contained in the chapter, provides that: “civil actions
other than for the recovery of real property can only be brought within the
following periods after the right of action accrues:

“1. *           *           *           *           *           *          
*

“2. *           *           *           *           *           *          
*

“3. Within four years: * * * an action for an injury to the rights of the
plaintiff not arising on contract and not hereinafter
enumerated.”

Section 44, also contained in that chapter, provides that: “an action for
relief not herein provided for can only be brought within ten years after the
cause of action accrues.”

Since the undisputed evidence discloses that the cause of action accrued more
than ten years prior to the institution of these proceedings, there can be no
question that the action had prescribed under one or other of the above-cited
provisions of the new Code of Civil Procedure, though we do not stop to consider
or decide which of these periods of prescription should be applied in the case
at bar, because the pleadings are so inartificially drawn as to render it
difficult to determine the precise nature of the action, or rather of the theory
upon which the case was finally submitted and tried in the court below, and it
is not necessary for us to go into that question for the proper disposition of
the case.

We conclude that the judgment entered in the court below should be affirmed,
with the costs of this instance against the appellant. So ordered.

Torres, Moreland, Trent, and Araullo, JJ., concur.