TEODORICO SANTOS ET AL., PETITIONERS AND APPELLEES, VS. THE HEIRS OF PEDRO CRISOSTOMO AND FABIAN TIONGSON, OBJECTORS AND APPELLANTS.

The case in its essentials is simple enough; and in what is now
to be said we present only the decisive features of the case, ignoring
certain aspects of the appellants’ discussion with which we either
cannot agree or which we consider to be undecisive.

It appears then that the petitioners—who are Teodorico de los
Santos and the heirs of his deceased wife—are endeavoring in this
proceeding to procure the registration of a parcel of land in the
barrio of Santa Helena, municipality of Hagonoy, in the Province of
Bulacan, containing an area of 529,154 square meters, and bounded,
according to the description contained in the petition, as follows:

“Bounded on the northeast by the Manilad River; on
the southeast by the properties of Ambrosio Marasigan, Pedro Sumera
Cruz, Pachita Creek, and the properties of the heirs of Pedro
Crisostomo that are claimed by Pedro Santos and Prudencio Tanjutco; on
the southwest by the properties of the heirs of Pedro Crisostomo, that
are claimed by Julio Ramos, and on the northwest by the Rivers
Binambang, Maigsingilog, and Manilad.”

From the surveyor’s plan, Exhibit A, accompanying the petition, it
will be seen that the entire northern and northwestern boundaries of
the land claimed by the petitioners consist of a well-defined
watercourse to wit: The Binambang River, the Maicsing Hog River, and
the Manilad (or Manilao) River, which may be said to represent merely
three stages of a single continuous stream. At the southern and
southeastern border, the boundary in part consists of Estero Pachita. The Estero Kay Suca (Sapang
Kay Pare), mentioned in the document Exhibit B, is a little further to
the west and does not come into contact with the boundary of the parcel
in question. At other points the boundaries are devoid of natural
landmarks, being determined merely by contact with the land of various
owners, the exact position of whose properties is undetermined by any
of the documents used as evidence in the cause. Upon this point the
official plan is of no value except to show where the petitioners claim
the boundaries are located. The opponents to the registration are the
heirs of Pedro Crisostomo and Fabian Tiongson; and the controversy
simply is whether the title to the parcel of land, as described in the
petition and plotted in the official plan, is shown to be in the
petitioners. The opponents assert that the parcel of land in question
forms .an integral part of a much larger tract of land which is owned
in common by the heirs and successors of Pedro Crisostomo and Fabian
Tiongson, lying in the municipality of Hagonoy, in the Province of
Bulacan; and in support of this claim they have introduced in evidence
Exhibit 2, which is a certified copy of a composition title, dating
from far back in Spanish times, in favor of the heirs of Fabian
Tiongson, covering an area of more than 450 hectares of land.

We see no reason to doubt that the land in question was in fact
included in the composition title above-mentioned, and that, as a
consequence, it was formerly the property of the heirs of Fabian
Tiongson. This fact is interesting rather as a matter of history than
otherwise, and we do not mean herein to adjudicate upon this point;
for, as will be presently seen, the petitioners derive their title from
Jose Tiongson, a descendant of Fabian Tiongson, and it matters not to
the petitioners whether Jose Tiongson acquired the property in question
by descent from Fabian Tiongson or from some other source.

In order to show title in themselves, the petitioners rely upon two
species of proof, namely, Exhibit B, which is a contract of sale with pacto de retro,
executed in 1904, and oral evidence tending to show possession by them
of the property in question under said contract since that date.

The document Exhibit B of the petitioners is of capital importance
in the, case. It is a private document bearing the signatures of “Jose
Tiongson and three witnesses, and dated March 4, 1904. It purports to
be a sale with pacto de retro, transferring the property
therein described from the said Jose Tionson to Teodorico T. Santos,
the active petitioner herein, and his wife Venancia Bautista. This
document is written in Tagalog, and though two versions in Spanish are
submitted by the respective parties, we are content to accept the
version supplied by the petitioners and adopted by the appellants in
their brief. It is as follows:

“In this barrio of Marulao, municipality of
Hagonoy, Province of Bulacan, March 4, 1904: I, Jose Tiongson, single,
59 years old, a native and resident of Malolos, Province of Bulacan,
declare that I have a parcel of nipa land situated between Binambang
and Manilad Rivers and extending to Pacheta which is in this same
barrio; that I have sold it with the right to repurchase to the
spouses, D. Teodorico T. Santos and Venancia Bautista, for two hundred
eleven pesos which I have this day received. But I bind myself not to
repurchase this land until after ten years of its enjoyment. This land
has an area of two and one-half quinones, more or less, and its
boundaries are: on the north, Maiding Hog, on the south, land possessed
by D. Brigido Reyes and Valentin Pancheta which adjoins land possessed
by D. Miguel Ronquillo and Aniceto Gatmaitan as well as lands possessed
by D. Jose de los Santos towards Cay Pare Creek, and on the west, by
Binambang River. With respect to this sale with the right to
repurchase, executed in the presence of the two eye-witnesses, D. Julio
Bautista and Teodoro Panganiban, I bind myself that in case of any
interference with the possession of the land, I, Jose Tiongson, shall
appear before the courts, and should possession be lost I will
substitute other land subject to the same conditions.

“In witness whereof I execute this document and sign at the foot hereof together with my nephew D. Severo Tiongson.

The petitioners rely upon this conveyance as the origin and source
of their title and make no pretension to any part of the questioned
property otherwise than in relation with this document. In support of
this title they have shown, by oral evidence, an actual possession
thereunder for more than ten years, inferentially from the date of the
instrument itself.

At this juncture we will say that, in our opinion, a preponderance
of the rather meager testimony submitted on the point of possession
sustains the claim of the petitioners as to the fact of possession,
since 1904, of the land which they claim as covered by the contract of
sale, Exhibit B; and the finding of the trial court in favor of the
petitioners upon this point of actual possession must be taken to be
correct.

Accepting then, as a postulate, the execution of Exhibit B by Jose
Tiongson, the actual possessor of the questioned land in 1904, and the
subsequent possession of the property therein described by the
purchasers, Teodorico Santos and his wife, and the successors of the
latter, we proceed to consider the consequences of these facts.

In the first place, we observe that in our opinion the document Exhibit B is a contract of sale with pacto de retro,
notwithstanding the fact that by the terms of the agreement the
exercise of the right to repurchase is postponed for ten years from the
date of the contract. The attorney for petitioners, in his application
for a rehearing, suggest that the contract is really an antichresis;
and in support of this view a translation of Exhibit B is submitted
somewhat different from that already supplied in this opinion.

We think, however, that the document is what it purports to be; and
its character is not changed by the fact that, as will presently be
seen, the stipulation as to the time when repurchase may be effected
contravenes the provisions of article 1508 of the Civil Code. When the
stipulation in question is examined, it will be discovered that the
intention of the parties was to suppress the exercise of the right of
repurchase for the full period of ten years from the date of the
contract and, inferentially, to allow the exercise of that right after
the expiration of ten years. In the second paragraph of article 1503 of
the Civil Code it is in effect provided that if there should be an
agreement with respect to the time of repurchase, the period shall not
exceed ten years. The stipulation under consideration offends against
this provision in two particulars, namely, (1) in providing that the
right to repurchase may be exercised after ten years shall have
elapsed, and (2) in prohibiting the exercise of the same right during
the whole period when, according to the statute, it might be lawfully
exercised.

The stipulation is, therefore, illicit; and the result is that the
right of repurchase could in fact, under the second paragraph of
article 1508 of the Civil Code, have been exercised in this case at any
time after the making of the contract and prior to the expiration of
ten years. The law must here control over the revealed intention of the
parties.

In what has been said we do not mean to declare that the parties to a contract of sale with pacto de retro
can not under any conditions lawfully suspend the exercise of the right
of repurchase. Doubtless they may do so, provided there remains an
appreciable space of time for the exercise of the right within the
limitation allowed by law. For instance, if it were provided that
repurchase should not be effected before five nor after ten years from
the date of the contract, we see no reason for supposing the
stipulation to be unlawful. It is different where the parties attempt
totally to suppress the right during the whole period when it might
lawfully be exercised.

It follows from what has been said that under the contract before
us the right of repurchase expired and the property consolidated in the
purchasers, Teodorico T. Santos and his wife, Venancia Bautista, or the
successors of the latter, on March 4, 1914.

We now come to consider the point of the identity and extension of
the land included in the document Exhibit B. It will be seen that in
this contract the area of the land conveyed to Teodorico T. Santos
(Teodorico de los Santos) and his wife is 2 1/2 quinones, more
or less, or approximately in modern measurement 7hectares. Under said
document—and this too, be it remembered, a contract of sale with pacto de retro—the
petitioners are seeking to register a parcel of land covering
approximately 53 hectares,. This is a phase of the case which obviously
deserves scrutiny.

It is said in behalf of the petitioners that the parcel in question
is defined by natural boundaries; and that, therefore, the area stated
in the contract is of little moment. To this the reply is that the
description in the contract B is not made clear by reference to natural
landmarks. In the plan of survey the petitioners have, it must be
admitted, made their claim clear enough by reference to natural
landmarks, but this may merely be the result of an unjustifiable
extension of the limits of the parcel described in Exhibit B to those
natural landmarks; and such we believe to be the case. A perusal of the
evidence, in relation with the plans submitted, leads us to the
conclusion that when Exhibit B was made, the nipa grove about which the
parties intended to contract consisted of only a few hectares lying
near the Rivers Binambang and Maiding Hog, mentioned in the contract
and that by the subsequent extension of the grove by planting and
development its limits have spread to the area now claimed. In short we
think that this contract of sale does not cover by much the entire
parcel now sought to be registered.

It results in our opinion that while the petitioners may have
acquired a good title to a few hectares of land under contract Exhibit
B, they are, as to the remainder of the land embraced in their
petition, mere usurpers.

At first blush it might appear that the conclusion just stated,
namely, that the contract of sale did not really include the entire
extent of land claimed for it by the petitioners, is incompatible with
the conclusion previously announced that the petitioners had maintained
adverse possession over the whole parcel for more than ten years. Upon
reading the testimony with a special view to this apparent
inconsistency in our interpretation of the evidence, we find that the
two conclusions are compatible and legitimate. It is admitted even by
witnesses for the appellants that there have been at all times some
nipa plants scattered over the entire tract, though sparse around
portions of the border and perhaps with barren patches in the center.

We think that the petitioners, by collecting the juice from these
scattered plants, as proved, have maintained adverse possession of the
whole for more than ten years, although the main efforts of the
petitioners to bring the property to a state of productivity by the
planting of nipa may have occurred only a few years prior to the
institution of this proceeding.

We have now arrived at a point where the affirmance by this court
of the appealed judgment will be intelligible, said action being based
on the simple theory that, as to the land actually covered by the
contract of sale, the right of repurchase had irrevocably passed; and,
as to the land which has been the subject of usurpation, the
petitioners had acquired a good prescriptive title by adverse
possession.

The position thus indicated would be unassailable ii the
petitioners claimed the usurped land by the title of usurpation. The
fact is, however, as already indicated, the petitioners claim the whole
parcel of which registration is sought exclusively under and by virtue
of the .contract Exhibit B. A question is thus raised which may be
stated thus: Can the vendee in a contract of sale with pacto de retro,
prior to the date of consolidation of the property in himself, claim
the benefit of adverse possession under section 41 of the Code of Civil
Procedure with respect to land which he claims to be, but which in fact
is not, included in the contract? This question of prescription could
hardly arise directly between the parties to a contract of sale with pacto de retro
with respect to land admittedly covered by the contract, because as to
such land the rights of the parties must be determined by the contract.
But when the vendee, under the color of such a contract, goes beyond
the limits of the land described therein and becomes a mere usurper,
the question may legitimately arise; and it is presented in this case.

Our opinion upon this point is that adverse possession must be
taken to have begun with occupancy; and supposing that occupancy of the
usurped property began, as the trial court evidently believed, with the
execution of the contract of sale Exhibit B, or soon thereafter, it
results that the petitioners had acquired title by ten years’ adverse
possession, under section 41 of the Code of Civil Procedure, prior to
the beginning of these proceedings. The situation must, we think, be
governed by the rule generally applied in case of deliberate
encroachment beyond legitimate boundaries, which is, that “the intruder
gets a good title, if his occupation is hostile to the true owner and
is continued for the period required by the law of prescription. Good
authority may be cited to the effect that where an owner, holding a
particular piece of property under color of title, mistakes his
boundaries and encroaches upon land of his neighbor, intending only to
occupy what really belongs to him, his occupation of the usurped land
is not adverse to the true owner. (2 C. J., 139.) But all the courts
are agreed that deliberate usurpation of land beyond one’s true
boundaries, with the intention to assert ownership over the excess,
constitutes adverse possession, other elements concurring. (1 R. C. L.,
p. 733.)

It might be argued that, inasmuch as the entire parcel of land was
originally occupied and held under color of the title, indicated in the
contract of sale Exhibit B, and inasmuch as said contract contains a
stipulation under which the vendor could have repurchased the land, the
occupancy of the land by the petitioners, prior to the expiration of
the time for repurchase, cannot be considered adverse to the heirs of
the vendor, Jose Tiongson. We agree that the character of the occupancy
must in a sense be interpreted in subjection to the contract just
mentioned, for the petitioners claim the whole parcel under that deed
and by no other title. They are, therefore, effectually estopped order
for possession to be adverse, in the sense intended in section 41 of
the Civil Code Procedure, it must be “under right.” It is our opinion,
however, that the inseertion of a stipulation for repurchase by the
vendor in a contract of sale does not necessarily create any right
inconsistent with the right of ownership in the purchaser. Such a
stipulation is in the nature of an option, and the possible exercise of
it rests upon contingency. It creates no subsisting right whatever in
the property, and so far from being inconsistent with the idea of full
ownership in the purchaser, it really rests upon the assumption of
ownership in him. We may add that the consideration of repose, which is
the basis of the law of prescription, supports the occupant fully as
much in the situation now under consideration as in other cases
admittedly within the policy and intention of the statute.

The appellants assert that the property conveyed by Jose Tiongson
to the petitioners originally pertained to Fabian Tiongson, and at the
time the contract of sale was executed belonged pro indiviso
to his heirs and not exclusively to Jose Tiongson. It is accordingly
argued that prescription could not become effective, the land being
held in common. We understand the rule to be, however, that “where one
cotenant assumes to convey the entire estate, or any part of it, his
deed or other instrument, though legally insufficient, constitutes
color of title in the grantee, and an adverse possession thereunder for
the statutory period will ripen into title as against all the
cotenants.” (1 R. C. L., p. 743; Joyce vs. Dyer, 189 Mass., 64; 109, A. S. R., 603, and note at page 609; Lloyd vs. Mills, 32 L. R. A. [N. S.], 702.)

One of the bases of the petition to rehear is newly discovered
evidence. We have considered the nature of the matter thus presented
and are disinclined to accede to the request for a new trial on this
ground, not only because no sufficient excuse is made for the failure
to produce this proof sooner, but because the purported newly
discovered matter is irrelevant or unconclusive. In particular, it is
quite clear that the affidavit of Severo Tiongson, which is supposed to
throw light on Exhibit B, refers to a totally different document.

Petition to rehear denied. So ordered.

Mapa, C. J., Araullo, Malcolm, and Villamor, JJ., concur.