TORIBIA FONTANILLA, ET AL., PLAINTIFFS AND APPELLANTS, VS. MANUELA PACIO, ET AL., DEFENDANTS AND APPELLEES.

In 1901, Flaviano Pacio married Severa Jucutan. Herein defendants were
their children. Severa died in 1930; and thereafter Flaviano married
the plaintiff Toribia Fontanilla, who bore him the other four
plaintiffs.

The dispute between the parties in the La Union
court of first instance, concerned two parcels of land which defendants
allegedly retained without any right thereto. The litigants later
agreed to a partition of the first parcel, and the court so decreed.

As to the second parcel, a hearing was held, and it was awarded to the defendants, on the ground that it had been donated propter nuptias to Severa, in 1901, by Flaviano Pacio, who was then admittedly the owner.

According to the stipulation of facts:

“*
* * a donation propter nuptias was made in a private instrument by
Flaviano Pacio in favor of his first wife, Severa Jucutan, before their
marriage on June 4, 1901 * * *.

3. That the land
continued to be declared in the name of Flaviano Pacio notwithstanding
this donation propter nuptias until 1956 when the same was changed in
the name of the defendants Brigida Manuela and Dominga, all surnamed
Pacio;

4. That land taxes were paid in the name of Flaviano Pacio as shown by
tax receipts for the years 1931, 1933, 1934, 1935, 1940, 1942, 1943,
1944, 1945, 1946, 1947, 1948, 1949, 1955, and 1956;

5. That Flaviano Pacio died on November 2, 1951; * * *

8. That defendants lived with their father and the second wife, Toribia
Fontanilla, from the date of their marriage in 1933, except Manuela who
left on the date of her marriage in 1941, and returned in 1946, and
Dominga who left in 1943 and Brigida is presently living with the other
defendants;

9. That while the plaintiffs and the defendants lived together during
the said period, they equally shared all the harvests reaped from the
land in litigation;

10.
That the land taxes were paid both parcels (a) and (b) in the names of
the defendants starting with the year 1957 when the tax declarations
were changed into their names on December 20, 1956; * * *.”

The plaintiffs-appellants contend that the donation was void, because
it was not made in a public instrument. They are right. Art. 633 of the
Spanish Civil Code states that “In order that a donation of real
property be valid it must be made by public instrument in which the
property donated must be specifically described and the amount of the
encumbrances to be assumed by the donee expressed * * *.”

And this Court has held that a donation propter nuptias of real
property written on a private instrument is not valid even between the
parties.^[1]

The
trial judge said “a donation propter nuptias in order to be valid
between the donor and the donee, need not be embodied in a public
instrument as such formality is only necessary for registration
purposes in the office of the Register of Deeds” so as to bind third
persons. He was obviously applying the new principles in the Philippine
Civil Code effective in the year 1950.^[2]
But in 1901 when the gift was made, the law was contained in the
Spanish Civil Code, according to which, even between the parties, the
donation must be in a public instrument.

Realizing the force
of plaintiffs’ point, defendants emphasize that the deed of donation
constituted a title on which to base acquisitive prescription, inasmuch
as Severa possessed the land from 1901 to March 1930 when she
died. The stipulation of facts says nothing about such possession.
True, there was a witness, Monica Pacio, who testified; but she stated
that both husband and wife held possession of the land, and the
stipulation says that from 1933 the parties shared the harvest equally.
At any rate, it is obvious that normally, prescription by adverse
possession can not exist between husband and wife. See Art. 1109, Civil
Code of the Philippines.

Espique vs. Espique^[3]
on which the appellees rely is not controlling because the prescription
there mentioned did not refer to possession by the wife as against her
husband.

It follows that Flaviano Pacio continued to be the
owner of the land as the donation had no effect and there was no
prescription. Upon his death, the land became the joint property of his
children by the first and second marriage. Subject of course to the
rights of his surviving spouse, the plaintiff Toribia Fontanilla.

Reversing the decision in so far as this parcel is concerned, we hereby
order the return of the expediente to the court below for further
proceedings on partition in accordance with these views.

Paras, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, and Dizon, JJ., concur.

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^[1] Velasquez vs. Biala, 18 Phil., 231; Solis vs. Barroso, 53 Phil. 912.

^[2] Arts. 127, 1403, Civil Code of the Philippines.

^[3] Phil., 369; 47 Off. Gaz., 4079.