RESURRECCION TAGARAO, BUENAVENTURA TAGARAO AND SERAFIN TAGARAO, PLAINTIFFS AND APPELLEES, VS. MARCOS GARCIA ET AL., DEFENDANTS. MARGARITA GARCIA, ROSARIO GARCIA, DOLORES RUPINO,…

This action was brought by the brothers and
sisters Resurreccion Tagarao, Buenaventura Tagarao, and Serafin
Tagarao, children of the deceased Merced Garcia, daughter of the
deceased Buenaventura Garcia who was a brother of the defendant Marcos
Garcia, against the -latter and the other defendants named Paula
Tabifranca, Margarita Garcia, Rosario Garcia, Dolores Rufino and
Eleuterio Rufino, praying that judgment be rendered against the
defendants ordering them to deliver to the plaintiffs, after executing
the necessary deeds of transfer, one-fourth of the land known as lot
No. 510 of cadastral case No. 11 of the municipality of Isabela,
Occidental Negros (G. L. R. O. Cad. Record No. 100), which was formerly
covered, first by original certificate of title No. 10009 (Exhibit M),
later by transfer certificate of title No. 3001 (Exhibit 3), and at
present by transfer certificate of title No. 8782 (Exhibit 7), all of
the office of the register of deeds of said Province of Occidental
Negros.

In their amended complaint of July 29, 1931, which was
reamended on March 8, 1932, said plaintiffs prayed that should the
defendants fail to deliver to them the required portion of the land in
question, the latter be ordered to pay them the value thereof based on
the assessed value of the whole property, and that they furthermore be
indemnified for the value of 1,407 cavans of palay at the rate of P4 a
cavan, alleging that said 1,407 cavans represented their share in the
products of said land from the time the defendants took exclusive
possession thereof.

Before the plaintiffs filed their
amended complaint on the date above stated, the defendants Marcos
Garcia, Paula Tabifranca, Margarita Garcia, Rosario Garcia and Dolores
Rufino filed a demurrer to said plaintiffs’ original complaint,
alleging that it did not state sufficient facts to constitute a cause
of action and was furthermore ambiguous, unintelligible and uncertain.
The lower court sustained said demurrer and ordered the plaintiffs to
amend their complaint within the reglementary period.

When the plaintiffs amended their complaint in the sense expressed
in their pleading of February 13, 1929, said five defendants again
filed another demurrer alleging this time that the lower court lack
jurisdiction to try the case by reason of the .subject matter involved
and the lower court overruled said demurrer ordering them to answer
within the reglementary period. In compliance therewith, the defendants
on October 28, 1929, filed their answer wherein the first two
defendants, or the spouses Marcos Garcia and Paula Tabifranca, alleged
that although they formerly were the absolute and exclusive owners of
the land in question they already ceased to be so at that time, having
sold the half belonging to Paula Tabifranca to the defendants Margarita
Garcia, Rosario Garcia and Dolores Rufino, and the other half belonging
to Marcos Garcia to Eleuterio Rufino. On June 9,1931, said two
defendants filed a petition of even date stating that they had no more
interest in the case, having sold their respective participations to
the two Garcias and two Rufinos and praying in succession that they be
absolved from the complaint.

A few days later, or on July 15,1931, said two defendants Marcos
Garcia and Paula Tabifranca filed a motion to include Eleuterio Rufino
among the defendants and on the following day the lower court, granting
the motion, ordered the inclusion of Eleuterio Rufino in the case as
one of the defendants. For this purpose the plaintiffs filed their said
amended complaint of July 29, 1931, which they re-amended with a slight
addition on March 8, 1932.

The defendants Marcos Garcia and Paula Tabifranca did not answer
the plaintiffs’ last amended complaint but Margarita Garcia, Rosario
Garcia and Dolores Rufino jointly entered a general denial of all the
allegations Contained therein, alleging as a special defense (1) that
they are the exclusive owners of one-half of the land in question; (2)
that the plaintiffs have already lost their right of action because
such right, if they ever had any, has already prescribed; and (3), said
plaintiffs cannot invoke the decision rendered in civil case No. 4091
because with respect to them it does not constitute res judicata.

The defendant Eleuterio Rufino, answering said plaintiffs’ last
amended complaint, stated in his pleading of November 19, 1931, that he
denied each and every allegation contained therein, alleging as a
special defense that one half of the land in question was sold by
Marcos Garcia and purchased by him in good faith, paying the
corresponding price therefor.

After due trial the lower court rendered judgment ordering the
defendants to deliver to the plaintiffs one fourth of the land in
question after executing the necessary deeds of transfer in favor of
said plaintiffs or, in lieu thereof, to indemnify them in the sum of
P3,882 plus the value of 1,000 cavans of palay at P3 a cavan, with
costs. In said judgment said court “declared the deeds of sale executed
by Marcos Garcia in favor of the defendant Eleuterio Kufino and by
Paula Tabifranca in favor of the defendants Margarita. Garcia, Rosario
Garcia and Dolores Rufino, null and void.” The defendants Margarita
Garcia, Rosario Garcia, Dolores Rufino and Eleuterio Rufino appealed
but Marcos Garcia and Paula Tabifranca did not.

In support of their appeal, the defendants Margarita Garcia,
Rosario Garcia, and Dolores Rufino contend that the lower court
committed the eight alleged errors assigned in their brief as follows:

“1. The lower court erred in not sustaining the
demurrer of the defendants-appellants Margarita Garcia, Rosario Garcia
and Dolores Rufino to the second amended complaint of the plaintiffs.

“2. The lower court erred in admitting, under objections of the
defendants-appellants, oral and documentary evidence tending to attack
original certificate of title No. 10009 in the name of the spouses
Marcos Garcia and Paula Tabifranca issued on May 17, 1918.

“3. The lower court erred in holding that the deed of sale made and
executed by Paula Tabifranca with respect to her undivided one-half
(1/2) share of lot No. 510 of the cadastral survey of Isabela in favor
of Margarita Garcia, Rosario Garcia and Dolores Rufino, was made
without consideration and declaring same null and void being fictitious.

“4. The lower court erred in holding that the transaction made by Paula
Tabifranca in favor of Margarita Garcia, Rosario Garcia and Dolores
Rufino had no other purpose than to deprive the plaintiffs of their
shares in lot No. 510, as legitimate heirs of Ventura Garcia and Merced
Garcia.

“5. The lower court erred in condemning the
defendants-appellants Margarita Garcia, Rosario Garcia and Dolores
Rufino, jointly and severally with the other defendants to return to
the plaintiffs one-fourth (1/4) of lot No. 510 of the cadastral survey
of Isabela, or in its place, to indemnify the plaintiffs the sum of
P3,882, value of said portion.

“6. The lower court erred in
condemning the defendants-appellants Margarita Garcia, Rosario Garcia
and Dolores Rufino, jointly and severally with the other defendants, to
pay the plaintiffs one thousand cavanes of palay or its value at P3 per
cavan.

“7. The lower court erred in holding that the right
of the plaintiffs to present this action to recover a portion of lot
No. 510 of the cadastral survey of Isabela has not prescribed.

“8. The lower court erred in denying the petition for a new trial of
the defendants-appellants Margarita Garcia, Rosario Garcia and Dolores
Rufino.”

The appellant Eleuterio Rufino also contends that said court in
rendering its judgment in question committed the four alleged errors
relied upon in his brief, which read as follows:

“1. The lower court erred in admitting over the
defendant’s objection oral as well as documentary evidence of the
plaintiffs tending to attack the stability of original certificate of
title No. 10009 (Exhibit 5) in the name of the defendants Marcos Garcia
and Paula Tabifranca, relative to alleged facts that took place prior
to the issuance of said title.

“2. The lower court erred in
ordering the defendant Eleuterio Rufino, jointly with his codefendants,
to deliver to the plaintiffs one-fourth (£) of said lot No. 510, or in
lieu thereof to indemnify them in the sum of P3,882 representing: the
value of said portion.

“3. The lower court erred in holding
in its judgment that the deed (Exhibit 8) is fictitious and fraudulent
and declaring it null and void.

“4. The lower court erred in
not absolving the defendant and appellant Eleuterio Rufino from the
complaint and in denying his motion for a new trial.”

Without losing sight of the purpose of the complaint of the
plaintiffs and appellees as expressed in the prayer of their pleadings
or last amended complaints, it is clear that the first assignment of
alleged error attributed to the lower court by the appellants is
unfounded on the ground that its purpose is not to attack the validity
of the decree by virtue of which original certificate of title No.
10009 was issued in favor of Marcos Garcia and Paula Tabifranca, or
that under which transfer certificates of title Nos. 3001 and 8782,
were issued later, but to compel the defendants to give them one-fourth
of the land described in said certificates and to pay them the
indemnity referred to therein.

The facts which have been clearly established at the trial,
according to the record and the evidence before us, may be briefly
stated as follows:

The land in question has an area of 31 hectares, 3 ares and 65 centares. It was originally purchased with pacto de retro
by the defendant Marcos Garcia and his brother Ventura Garcia from
Vidal Saravia on July 20, 1900. As the latter failed to exercise his
right of repurchase the two brothers became the absolute owners of said
land and it was so held by the Court of First Instance of Occidental
Negros in case No. 274 which was instituted by Pedro Saravia, as
administrator of the intestate estate of Vidal Saravia, against said
two brothers to compel the latter to resell it to him (Exhibit L). When
the two brothers purchased said land, the defendant Marcos Garcia was
yet single because he had not even been married to his former wife, as
the defendant Paula Tabifranca is only his wife Dy a second marriage.
Marcos Garcia had by his first wife three children who are the
defendants Margarita Garcia, Rosario Garcia and the deceased Catalina
Garcia, mother of the defendant Dolores Rufino. Ventura Garcia, now
deceased, also had two children: Merced Garcia who was married to
Rafael Tagarao, and Claro Garcia.

While Mefced Garcia was still living, or at least until June, 1914,
the defendant Marcos Garcia had been delivering to her and her brother
Claro Garcia their share of the products harvested from the land in
question. Merced Garcia who, as stated, died about the year 1914 and
was followed years later by her husband Rafael Tagarao, had three
children, the herein plaintiffs Resurreccion Tagarao, Serafin Tagarao
and Buenaventura Tagarao. When this action was brought on October 14,
1928, Resurreccion Tagarao was more than 24 years of age; Serafin was
then only 23 years, 1 month and 1 day, and Buenaventura, 18 years, 4
months and 3 days.

With the plaintiffs’ grandfather, Ventura Garcia, and their mother,
Merced Garcia, already dead, the defendant Marcos Garcia claimed the
land in question in cadastral case No. 11 of the municipality of
Isabela of the Province of Occidental Negroes (G. L. R. 0. Cadastral
Record No. 100), known in said case as lot No. 510, alleging in the
pleading presented by him to that effect (Exhibit I) that he had
acquired it on July 20,-1904, when he was yet unmarried to his
codefendant Paula Tabifranca. Before the original certificate of title
acknowledging him to be the owner of the land in question was issued to
him, and during the period within which any person could ask for the
revision of the decree issued to that effect, Marcos Garcia, fearing
that Claro Garcia, brother of the plaintiffs’ mother, might frustrate
his designs by asking for said revision, executed in favor of Claro
Garcia a document binding himself to give to the latter four hectares
of said land upon the issuance to him of the corresponding certificate
of title. In view thereof, Claro did not ask for the revision of the
decree but he later brought an action, case No. 4091 of the Court of
First Instance of Occidental Negros, against Marcos Garcia to recover
from him four hectares of said land, lot No. 510 of the cadastre of
Isabela, basing his claim on the document which Marcos Garcia executed
in his favor in order to promise and bind himself to give Claro said
four hectares, because after Marcos Garcia had, obtained his
certificate of title he refused to comply with his promise; and as a
result said court, on October 10, 1927, rendered judgment against
Marcos Garcia ordering him to segregate four hectares of said land to
be delivered to Claro Garcia and furthermore to pay to the latter as
indemnity 90 cavans of palay, or the value thereof in the sum of P360.

In the certificate of title which was issued in favor of Marcos
Garcia on May 17, 1918 (original certificate of title No. 10009), by
virtue of his claim presented in said cadastral case No. 11 of the
municipality of Isabela, Occidental Negros, it was stated, as in the
decree ordering the issuance thereof, that one-half of the land therein
described belonged to him, and that the other half to hiswife by a
second marriage, Paula Tabifranca.

A few years after the issuance of said certificate of title, the
defendant Paula Tabifranca, second wife of the defendant Marcos Garcia,
sold her rights to the defendants Margarita Garcia, Rosario Garcia and
Dolores Rufino, her husband’s daughters and granddaughter,
respectively, by his first marriage, executing the deed Exhibit N dated
December 31, 1921, while the alleged purchaser Dolores Rufino was yet a
minor. This was agreed upon between her and her husband Marcos Garcia
to prevent the land, part of which belonged to her under said
certificate of title, from ever passing to her son by her first
marriage named Juan Tabigui, as she was already a widow when she
contracted marriage with said Marcos Garcia.

In the meantime the plaintiff Resurreccion Tagarao was informed
that her uncle Claro Garcia had succeeded in obtaining his share of the
land in question and, desiring to protect her rights and those of her
brothers and co-plaintiffs, she negotiated with Marcos Garcia so that
he might give them their corresponding share. Marcos Garcia at first
entertained her with promises that he would see to it that she got what
she wanted but later, at her back, he sold his share of the land to the
defendant Eleuterio Rufino, brother of his son-in-law Lope Rufino,
husband of the defendant Rosario Garcia, executing in favor of
Eleuterio Rufino the deed Exhibit 8 wherein it was made to appear that
the price -paid to him for only one-half of the land, lot No. 510, was
P6,567.

Twelve days after Paula Tabifranca had executed said deed of
transfer Exhibit X in favor of her stepdaughters Margarita Garcia and
Rosario Garcia and of her husband Marcos Garcia’s granddaughter named
Dolores Rufino, said three defendants together with Marcos Garcia
obtained transfer certificate of title No. 3001, after the cancellation
of original certificate of title No. 10009, and two days after Marcos
Garcia had executed in favor of the defendant Eleuterio Rufino the deed
of sale Exhibit 8 whereby he sold to the latter his half of the land
described in the above stated certificate of title No. 10009 (Exhibit
M), he and his daughters and granddaughter jointly with the defendant
Eleuterio Rufino succeeded in having said transfer certificate of title
No. 3001 (Exhibit 3) cancelled to be substituted, as it was in fact
substituted, by transfer certificate of title No. 8782 (Exhibit 7).

The transfer made by Paula Tabifranca in favor of her stepdaughters
Margarita and Rosario Garcia and her husband’s granddaughter Dolores
Rufino, and that made by Marcos Garcia in favor of Eleuterio Rufino,
stated in said deeds Exhibits N and 8, are fictitious and feigned in
view of the following reasons inferable from the evidence of record:

Notwithstanding the fact that in the original certificate of title
No. 10009 Paula Tabifranca’s right to one half of the property therein
described has been acknowledged, she was conscious that she was not
entitled thereto because it belonged exclusively to her husband or, at
least, he had acquired it long before he married her. This explains the
ease with which she parted with her alleged right for a sum
disproportionate to the true value of the land sold by her. The alleged
purchasers Margarita Garcia, Rosario Garcia and Dolores Rufino were not
in a financial position to pay her the alleged purchase price which,
according to Exhibit N, amounted to Pl,500; and Dolores Rufino, being
then of tender age, could not have taken part in said contract of sale,
notwithstanding that it was stated in said document that she was
represented by her father Lope Rufino, because it does not appear that
the latter was then the guardian of her property and it is a fact that
minors can not give consent to any contract.

Neither was Eleuterio Rufino in a financial position to pay what he
allegedly paid to the defendant Marcos Garcia for the latter’s share in
the land in question on the ground that the amount of six thousand five
hundred sixty-seven pesos (P6,567) which is the price allegedly paid by
him to Marcos Garcia is a fortune greater than the income he could have
had for several years, because his means of livelihood, according to
his own testimony, consisted simply of extracting tuba from
about 200 coconut trees leased from different persons and in retailing
fresh fish bought by him for a lump sum in order to obtain a small
profit. He is a brother of the defendant Rosario Garcia’s husband, and
notwithstanding that the deed Exhibit 8 was executed in his favor, the
land continues until now to be registered for taxation purposes in the
name of Marcos Garcia; and notwithstanding the alleged deed of transfer
Exhibit 8 the land in question continues to be under the Isabela Sugar
Company Inc., of Occidental Negros, as property of Marcos Garcia,
although it is divided into three portions named “three sisters—a,”
“THREE SISTERS —b,” and “HACIENDA GARCIA,” the first portion being
under the management of Macario Tori lla, husband of the defendant
Margarita Garcia; the second under the management of Lope Rufino,
husband of the defendant Rosario Garcia; and the third under that of
Claro Garcia, uncle of the plaintiffs (Exhibit D). In addition to these
reasons, it may and should be stated that Eleuterio Rufino’s testimony
explaining how the transaction between him and Marcos Garcia was
effected, does not agree with the text of the deed of transfer Exhibit
8. It is expressly stated in said document that the price paid by him
for the land in question was P6,567 and that he also assumed the lien
in the form of a mortgage constituted on said land to secure the
payment to Candido Montilla of a loan in the sum of P4,675 from which
it may be inferred that the total price paid by him for said land was
really Pll,242. Notwithstanding this, he testified that he paid only
P1,892 to the defendant Marcos Garcia. It should be stated furthermore
that on December 1, 1928, or scarcely two and a half months from the
time he bought said land from Marcos Garcia, Eleuterio Rufino leased
it, according to Exhibit 9, to Marcos Garcia’s sons-in-law and husbands
of the defendants Margarita Garcia and Rosario Garcia, when it is
natural that as he was poor and his business of tapping tuba
and reselling fishes was not lucrative, he should have personally taken
charge of the cultivation and exploitation of the land bought by him.
Furthermore, on January 10,. 1930, long after the alleged transfer of
said land, Exhibit 8, Macario Torilla and Lope Rufino, as Marcos
Garcia’s attorneys-in-fact, the latter having executed in their favor
the power of attorney, Exhibit 0-1, by virtue of which they mortgaged
the land in question in the name of their principal to Candido Montilla
on July 7, 1928, Exhibit 0, paid to Montilla the sum of P=514.25 as
interest on the loan secured by the mortgage above stated (Exhibit 4).
This last fact convinces us more that said deed of transfer Exhibit 8
is fictitious because if it were genuine, there being as in fact there
is in said document a stipulation that the purchaser Eleuterio Rufino
assumed all the lien on said property, Eleuterio Rufino, not Marcos
Garcia, personally, nor through his sons-in-law Macario Torilla and
Lope Rufino, should have paid said interest.

The foregoing proves to our satisfaction that errors 2, 3 and 4
relied upon by the appellants Margarita Garcia, Rosario Garcia and
Dolores Rufino in their brief are absolutely unfounded, and so is
alleged error No. 3 attributed to the lower court by the appellant
Eleuterio Rufino.

It follows from the foregoing conclusions and considerations that
errors 5 and 2 attributed to said court by the defendants Garcia and
Eleuterio Rufino, respectively, are likewise unfounded. If the
transfers made under the deeds which later made possible the issuance
to the interested parties of certificates of title Nos. 3001 and 8782
(Exhibits 3 and 7) are fraudulent, it is but proper, being in
accordance with law, that the defendants execute the deeds of transfer
prayed for by the plaintiffs in their complaint in order to give them
what is theirs; and this is undoubtedly one fourth of the entire land
because if one half belonged to the defendants’ predecessor in
interest, the other half belonged to the plaintiffs’ grandfather who,
as already stated, had only two children: Claro Garcia, the plaintiffs’
uncle, and Merced Garcia, their mother.

But the question now arises whether or not the three plaintiffs are
entitled to what they jointly pray for in their complaint. There is no
doubt but that the plaintiffs Serafiri Tagarao and Buenaventura Tagarao
are entitled thereto on the ground that the former was only 23 years, 1
month and 1 day, when this action was brought, and therefore the three
years exception granted by the provisions of section 42 of Act No. 190
had not yet elapsed as to him, and because Buenaventura Tagarao, then
being only 18 years, 4 months and 3 days of age, was yet a minor and
the period of prescription as to him is extended to three years after
he has attained majority.

The plaintiff Resurreccion Tagarao, notwithstanding that she was of
legal age when this action was brought, contends that neither has her
right to seek the same relief prayed for by her brothers and
co-plaintiffs prescribed, and cites in support of her contention the
ruling laid down in the case of Velazquez vs. Teodoro (46
Phil., 757). It was truly stated in said case, citing with approval a
doctrine laid down by the Supreme Court of the State of Ohio in the
case of Sturges and Anderson vs. Longworth and Home (1 Ohio St., 545), that:

“Where the interests of two defendants are joint
and inseparable, and the rights of one are saved under the provision of
the statute of limitations, on account of his disability, such saving
inures to the benefit of the other defendant, although laboring under
no disability.”

As may be seen, this ruling refers to cases in which the rights of
the defendants are joint and inseparable because when they are not so,
that is, when they are joint and several at the same time, as is the
case of the plaintiffs whose rights are joint and several, the rule
according to said court, interpreting the section from which section 42
of Act No. 190 was copied, is different; and said court stated that in
said cases the disability which protects an heir from the effects of
prescription is no protection to coheirs, or in other words, using the
same language of the author of the footnotes on the decision rendered
in the case of Moore vs. Armstrong, reported in 36 Am. Dec,
63, 78, wherein the same Supreme Court of the State of Ohio sustained
the latter point of view, “where the rights of the parties are not
joint, the cases are uniform, and hold that the disability of one will
prevent the operation of the statute as to him, but that those who are
not under a disability will be barred.”

The case of Moore vs. Armstrong, supra, has more points in common with the case at bar than those of Sturges and Anderson vs. Longworth and Home, and Wilkins.vs. Philips cited in said case of Velazquez vs. Teodoro, supra.
The question for determination in the former case was whether or not
the period of prescription runs not only against the heir who is
laboring under disability but also against his coheirs who are sui juris.
The plaintiffs, to all appearances, were the heirs of one Furgus Moore
and the heiress who seemed to be laboring under disability was a
married woman named Mrs. Fleming. The Supreme Court of Ohio decided the
question in the negative with the remark that whatever doubt might once
have been entertained on this subject, it was conclusively settled both
in Great Britain and in the United States that the statute is saved in
favor only of the person laboring under the alleged disability, adding
in succession that this is precisely the rule with respect both to
coparceners and tenants in common.

It cannot be argued that the separation of rights among the
plaintiffs was not practicable in the sense that one of them could not
have disposed of or alienate his legal portion of the thing pogsessed
in common without the consent of the others, because the law provides
otherwise. It says:

“Every part owner shall have the absolute ownership
of his part, and of the fruits and benefits derived therefrom, and he
may, therefore, sell, assign, or mortgage it, and even substitute
another person in its enjoyment, unless personal rights are involved,
but the effect of the sale or mortgage, with respect to the other
participants, shall be limited to the share which may be allotted him
in the partition upon the dissolution of the community.”

Furthermore, whosoever among said plaintiffs should have desired
the partition of the property of which he was a co-owner, could have
demanded such partition inasmuch as the law then allowed and still
allows such act (article 400, Civil Code; and section 181, Act No.
190). What particularly distinguishes the case at bar from that of
Sturges and Anderson vs. Longworth and Home, supra,
and the other cases wherein it was established that when the rights are
joint the exception which saves one of the interested parties also
inures to the benefit of the others, is that it was assumed in the
latter cases that the rights and interests involved therein pertained
to joint tenancy, not tenancy in common, which are two distinct
relations, each having its own juridical meaning. The distinguishing
feature between the one and the other, as stated in the case of Mette vs.
Feltgen (148 111., 357, 371), is that the surviving co-owner in joint
tenancy is subrogated in the rights of the deceased co-owner
immediately upon the death of the latter, by the mere fact of said
death, but this does not take place in cases of tenancy in common which
corresponds to what is known in our law as community of property
(articles 392 et seq. of the Civil Code). For this reason,
according to American jurisprudence, a co-owner in joint tenancy can
not dispose of his share or interest in the property which is the
subject matter of the joint tenancy, without the consent of the other
co-owner because in so doing he prejudices the other’s rights and
interests.

That the separation of rights and interests among the plaintiffs
was practicable is further evidenced by the fact that Claro Garcia with
whom they were entitled to onehalf of the land in question could
recover his legal portion thereof from Marcos Garcia, although
certainly not in its entirety, having failed to assert his rights. This
being so, and it being known as it is in fact known that the purpose of
the statute of limitations is no other than to protect the diligent and
vigilant, not the person who sleeps on his rights, forgetting them and
taking no trouble of exercising them one way or another to show that he
truly has such rights, it is logical to conclude that the right of
action of the plaintiff Resurreccion Tagarao is barred, and the fact
that that of her brothers and coplaintiffs Serafin and Buenaventura
Tagarao still subsists does not inure to her benefit.

Although Resurreccion Tagarao could have enforced the right which
she exercised in. this case on May 17, 1918, when Marcos Garcia and
Paula Tabifranca obtained original certificate of title No. 10009
(Exhibit M) or shortly afterwards, or long before, that is, from the
death of her mother Merced Garcia in 1914 or 1916, she did nothing to
protect her rights. On the contrary, she allowed said spouses to
perform acts of ownership on the land covered by said certificate,
publicly, peacefully, uninterruptedly and adversely to the whole world
including herself, and from that time until the filing of her first
complaint more than ten years had elapsed. It is for this reason why it
cannot be sustained that the defendants Marcos Garcia and Paula
Tabifranca, after it has been shown that the transfers made by them are
null and void, being fictitious and false, hold the land in question in
trust, because if they ever held it in said capacity it had been during
the lifetime of the plaintiffs’ mother to whom said defendants used to
give part of the fruits thereof. But after she had died, their
possession was under the circumstances above stated and the law
provides that in whatever way the occupancy by a person claiming to be
the owner of a real property may have commenced, if said occupancy is
under claim of title and is furthermore open, continuous for ten years
and adverse, it constitutes sufficient title for the occupant thereof
(sections 40 and 41 of Act No. 190), and there can be no other
exception to this rule than the disability of persons who are entitled
to said property, by reason of age, some mental defect, or
imprisonment, for whom the same law provides the exceptions contained
in its section 42.

It having been established by the evidence for both the plaintiffs
and the defendants that Candido Montilla holds a lien on the land in
question, which is noted at the back of transfer certificates of title
Nos. 3001 and 8782 (Exhibits 3 and 7) for a loan in the sum of P4,675
which he granted to Marcos Garcia in the honest belief that the latter
was the true owner of the land described in certificates of title Nos.
10009 (Exhibit M), 3001 (Exhibit 3), and 8782 (Exhibit 7), it is but
just that said lien be acknowledged by the plaintiffs Serafin Tagarao
and Buenaventura Tagarao, with the necessary reservations in favor of
said two plaintiffs.

It should be stated in passing that the land in question, lot No.
510 of cadastral case No. 11 of Isabela, Occidental Negros, is assessed
at P15,530, and therefore one-twelfth (1/12) thereof is worth M.,294.17
on that basis.

As to the indemnity which the plaintiffs claim from the defendants,
the conclusion arrived at by the lower court in its decision and
judgment is supported by the evidence, that is, the plaintiffs’ share
of the crops from 1918 to 1929, including that of Resurreccion Tagarao,
should be 1,000 cavans of palay. However, it being clear that
Resurreccion Tagarao’s action is barred, it should be understood that
only the plaintiffs Serann Tagarao and Buenaventura Tagarao are
entitled to compel the defendants to pay to them the value of
two-thirds of the 1,000 cavans of palay at the rate of P3 a cavan.

For all the foregoing, the judgment appealed from is affirmed in so
far as it favors the plaintiffs Serann Tagarao and Buenaventura
Tagarao, and said defendants are hereby ordered to execute in favor of
said Tagarao brothers the deed or deeds necessary to transfer to them,
by virtue of this judgment, two-twelfths (1/12) of the entire lot No.
510 of the cadastre of Isabela, Occidental Negros, including the
portion transferred to Claro Garcia (G. L. R. O. Cad. Record No. 100);
to indemnify each of them in a sum equal to what he may pay to the
mortgage creditor Candido Montilla to free his said portion from the
lien thereon in favor of said Montilla; or likewise to pay to each of
them, upon failure of the defendants to deliver said portion and
execute the necessary deed of transfer, the sum of P1,294.17; and
furthermore to pay, as indemnity, the value of two-thirds of 1,000
cavans of palay, at the rate of P3 a cavan, with costs against the
defendants. Said judgment is reversed as to the plaintiff Resurreccion
Tagarao. So ordered.

Street, Abad Santos, Hull, Vickers, Imperial, and Butte, JJ., concur.

MALCOLM, J., concurring in part and dissenting in part:

I concur with the opinion of Justice Villa-Real, but in addition
desire to append the following observations: The case at bar is
permeated with fraud. To do justice to the parties, all three of the
plaintiffs should be permitted to enforce their equitable rights. This
can be done if the rule announced in the case of Velazquez vs.
Teodoro ([1923], 46 Phil., 757), be accepted as stating a rule of
property and practice which should be followed. The judgment of the
trial court should be affirmed.

GODDARD, J.:
I concur with this opinion of Justice Malcolm.

VILLA-REAL, J., concurring in part and dissenting in part:

I agree with the majority opinion in so far as it favors the
plaintiffs Serafin Tagarao and Buenaventura Tagarao, but I regret
having to dissent therefrom in so far as it declares that Resurreccion
Tagarao’s right of action is barred.

After a lengthy disquisition during which American and English
jurisprudence was examined, the majority lays down the general rule
that in all actions involving community of property or tenancy in
common, the disability of a co-tenant or a co-owner to bring an action
does not benefit those who are sui juris.

The rulings in the various supreme courts of the American Union on
this point are stated in 37 Corpus Juris, page 1031, paragraph 441, as
follows:

“Disability of one of several parties.—The
authorities are not in harmony upon the question of the effect of the
disability of one or more of several parties when one or more are sui juris.
Thus it has been held that if one co-tenant is a minor the disability
will save the interests of his co-tenant from the operation of
limitations in actions for land, and this rule is extended to tenants
in common as well as joint tenants,—the latter being a somewhat
anomalous doctrine,—although in personal actions it is held otherwise,
and one plaintiff may be barred while another is saved. On the other
hand it is held that, where the right is joint so that all must sue,
all must have the right to sue when the suit is brought, and if one is
barred at that time all are barred, although some may have labored
under disability. Perhaps the rule which is best supported by the
authorities is that if the right is joint and several the disability of
one will save him but will not avail another who is not under
disability, and that if the right is joint so that the suit cannot be
brought except by the parties jointly then the rights of all are saved
if any is under disability; and one of coheirs or tenants in common is
saved by his own disability notwithstanding his co-tenant is sui juris
and barred, and the saving as to the former will not save the latter,
upon the principle that each may sue for his own share severally. This
general rule is subject to qualifications, however, and while it is
held that if the cause accrues to two jointly who are under disability,
the statute will not run until the disability is removed as to both,
the application of the rule is confined to cases where all the parties
are under disability when the cause accrues and if one is not under
disability the statute will run against all; and this latter branch of
the rule is confined in some cases to actions other than for the
recovery of land in which the rule is applied that as each may sue for
is own share, even though all may join, the bar as to one will not
operate against the other who is under disability.”

It is inferred from the foregoing that one of £he best rules laid
down by the authorities on the matter is that if the right is joint so
that the suit cannot be brought except by the parties jointly, the
rights of all are saved if any is under disability. It will be seen
that the rule that when a co-tenant or co-owner is sui juris,
the fact that his co-tenants or co-owners are laboring under disability
does not save him from the prescription of the right of action if it is
not exercised in due time, is not absolute. The rule is applicable only
when a co-tenant or co-owner may exercise his right of action
independently of his co-owners or co-tenants; but not when the action
necessarily has to be brought jointly by all the co-owners or co-tenants.

In the case of Palarca vs. Baguisi (38 Phil.,
177,180,181), this court through Justice Fisher, interpreting section
114 of the Code of Civil Procedure, stated as follows:

“* * * We hold that a co-owner cannot maintain an
action in ejectment without joining all other persons interested.
Section 114 of the Code of Civil Procedure requires that every action
must be prosecuted in the name of the real party in interest, and that
any person who has an interest in this subject matter and who is a
necessary party to a complete determination of the questions involved
should be made a party to the proceeding. The same article provides, in
its last paragraph, that if any person having an interest in the
subject of the action, and in obtaining the relief demanded, refuses to
join as plaintiff with those having a like interest, he may be made a
defendant, the fact of his interest and refusal to join being stated in
the complaint. Were the courts to permit an action in ejectment to be
maintained by a person owning merely an undivided interest in any given
tract of land, a judgment in favor of the defendant would not be
conclusive as against the other co-owners not parties to the suit, and
thus the defendant in possession of the property might be harassed by
as many succeeding actions of ejectment, as there might be co-owners of
the title asserted against him. The evident purpose of section 114 is
to prevent the multiplicity of suits by requiring the person asserting
a right against the defendant to include with him, either as
co-plaintiffs or as co-defendants, all persons standing in the same
position, so that the whole matter in dispute may be determined once
and for all in one litigation.”

We have not examined, nor do we need to do so, the procedural laws
of the State of Ohio to the doctrine of the Supreme Court of which the
majority unconditionally adheres, inasmuch as we have our own civil
procedural law section 114 of which, taken from the Code of Civil
Procedure of California, enumerates those who should be joined as
plaintiffs as well as those who should be joined as defendants in an
action. I agree that American jurisprudence should be followed as
persuasive authority in all that which is in accord with our laws,
customs and social condition, particularly if the legal provision to be
interpreted or construed has been copied from some law of the State the
Supreme Court of which has rendered the decision invoked. But in the
case at bar we have our own law on civil procedure regulating the form
and manner of bringing actions and the persons who should bring them
and against whom they should be brought. If section 114 of our Code of
Civil Procedure, as interpreted by this court, does not allow the
bringing of an action for the recovery of a common property, as the one
in question, by any co-tenant or co-owner without the consent of the
Others, and if under the American decision on which the majority
opinion is based “if the right is joint so that the suit cannot be
brought except by the parties jointly then the rights of all are saved
if any is under disability,” then the appealed judgment should be
affirmed in all its parts.

For the foregoing considerations, I am of the humble opinion that
inasmuch as Resurreccion Tagarao, independently of her co-owners
Buenaventura Tagarao and Serafin Tagarao, could not bring the present
action for the recovery of their undivided portion of lot No. 510 of
cadastral case No. 11 of Isabela, Occidental Negros, G. L. R. O.
Cadastral Record No. 100, in question, which belongs to the plaintiffs
and defendants in common and undivided shares, the disability of her
minor brothers saves her, and her fate follows theirs.