SOFIA PAMITTAN ET AL., PLAINTIFFS AND APPELLANTS, VS. GABRIEL LASAM AND QUIRINO MALLONGA, DEFENDANTS. GABRIEL LASAM, APPELLANT.

The parties filed a partial agreement as to the facts in which it
is recited in substance that the plaintiffs are the only surviving
heirs of Bernarda Pamittan; that Bernarda Pamittan and the defendant
Gabriel Lasam were married on June 10,1880; that Bernarda died
intestate in the month of September, 1908, without having left
descendants or ascendants; that Bernarda Pamittan and Gabriel Lasam
during their married life acquired the fourteen parcels of land
described in paragraph 2 of the complaint with the exception of parcels
7 and 8; that on January 24, 1930, Gabriel Lasam filed a petition in
the Court of First Instance of Cagayan for the registration of the
title to parcels 2, 3, 4, 5, 6, 7, and 12, alleging that he is the
absolute and exclusive owner of the same; that on March 30, 1932, after
a declaration of general default, a decree was entered in his favor as
to all of the said parcels except parcel No. 7 which is still pending.
On April 12, 1933, the General Land Registration Office issued the
certificates in accordance with the said decree of March 30, 1932; that
Gabriel Lasam had paid various taxes on said lots since 1908 amounting
to P13,506.22; and the parties reserved the right to present additional
evidence. After due hearing, the trial court rendered judgment for the
plaintiffs and decreed the partition of lots Nos. 1, 2, 3, 4, 5, 6, 9,
10,11, 12 and 13. The court found that parcels Nos. 7 and 8 were the
exclusive property of the defendant Lasam and that parcel No. 8 had
been validly donated to and accepted by the municipality of Solano on
March 13, 1906, and therefore ceased to be a part of the conjugal
property of Gabriel Lasam and Bernarda Pamittan.

Both parties appealed from the decision. The plaintiffs as
appellants excepted to the decision of the court with relation to
parcel No. 7. The trial court found that this parcel of land, although
acquired during the existence of the conjugal partnership, was proven
to be the exclusive property of the husband Gabriel Lasam. This parcel
of land belonged originally to Domingo Narab who had a possessory title
to the same duly registered on June 27, 1873. This Domingo Narab was
indebted to Isidro Lasam, the father of the defendant Gabriel Lasam, in
the sum of P1,000 about the year 1880; in payment of this debt, Narab
transferred the title to the said parcel No. 7 to Isidro Lasam who in
turn gave it to his son Gabriel Lasam, then recently married, as
advancement on his inheritance. Although Gabriel Lasam’s claim as to
the manner in which he acquired parcel No. 7 rests largely on his
testimony and although the evidence to overcome the presumption that
property acquired by either spouse during marriage is conjugal
property, must be clear and convincing, we find no valid reason for
overturning the findings of the trial court with respect to parcel No.
7. The transaction took place nearly fifty years ago and both the
original owner and the father of the witness are dead. Although there
was no formal transfer from the father to the son, the documentary
evidence of the possessory information was given to the son which was,
according to a prevalent custom, deemed sufficient transfer when
accompanied by delivery of possession. No evidence to the contrary was
offered so that in this case the question whether the presumption has
been overcome turns on the credibility of the witness Gabriel Lasam and
the incidental inferences that may be drawn from all the facts and
circumstances of the case. We accept the findings of the trial court
under the familiar rule applicable as to the weight to be given to such
findings on appeal.

The defendant Lasam submits the following first assignment of error:

“The trial court erred in declaring that the
parcels of land described in paragraphs Nos. 9, 10, 11 and 13 of the
plaintiffs’ complaint still belong to the conjugal partnership of the
defendant-appellant, Gabriel Lasam, and his deceased wife, Bernarda
Pamittan, simply because the cessions or donations made by said spouses
of said parcels in favor of the third persons now occupying them, were
not reduced to writing in accordance with article 633 of the Civil Code
(page 23, B. of E.).”

It appears that parcels 9 (3 hectares 42 ares) and 10 (1 hectare 40
ares) were donated by the spouses Gabriel Lasam and Bernarda Pamittan
during their marriage to Tomas Lasam, the brother of Gabriel Lasam, who
has been in continuous possession ever since; that parcel 11 was
donated by the spouses to Pedro Taguinod, brother-in-law of Gabriel
Lasam, who was succeeded in 1929 by his son; Taguinod and his son have
been fn continuous possession of said lots since the donation; that
parcel No. 13 (1,628 square meters) was donated by the spouses to
Vicente Carag who has been in continuous possession since the donation.

These small tracts of land appear to have been given to the donees
by the spouses without the execution of any public instrument by either
the donors or the donees, as required by article 633 of the Civil Code.
The donees were not made parties to this suit and we are therefore not
called upon to determine what rights if any they acquired by
prescription. (Cf. Pensader vs. Pensader, 47 Phil., 959.) The
trial court therefore correctly held article 633 of the Civil Code
applicable, which conditions the validity of the donation of real
property upon the execution and delivery of a public instrument
specifically describing the property donated and a similar acceptance
by the donee. The first assignment of error of the appellant Lasam must
therefore be overruled.

His second assignment of error is as follows:

“The trial court erred in not declaring that the
defendant-appellant, Gabriel Lasam had acquired ownership by
prescription over the parcels described in paragraphs Nos. 1, 2, 3, 4,
6, 6 and 12 of the plaintiffs’ complaint.”

We find no merit in this assignment. It was agreed in paragraph 2
of the stipulation of facts that Bernarda Pamittan and the defendant
Lasam acquired said tracts of land during their married life; but Lasam
contends that “he has acquired ownership of the same by prescription
and hence said properties no longer form part of the conjugal
partnership.” (Brief, page 4.)

Upon the death of Bernarda in September, 1903, said lands continued
to be conjugal property in the hands of the defendant Lasam. It is
provided in article 1418 of the Civil Code that upon the dissolution of
the conjugal partnership, an inventory without delay (desde luego). (Alfonso vs. Natividad, 6 Phil, 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., l£3; Molera vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41 Phil., 713.)

In the last mentioned case this court quoted with approval the case of Leatherwood vs.
Arnold (66 Texas, 414, 416, 417), in which that court discussed the
powers of the surviving spouse in the administration of the community
property. Attention was called to the fact that the surviving husband,
in the management of the conjugal property after the death of the wife,
was a trustee of unique character who is liable for any fraud committed
by him with relation to the property while he is charged with its
administration. In the liquidation of the conjugal partnership, he had
wide powers (as the law stood prior to Act No. 3176) and the high
degree of trust reposed in him stands out more clearly in view of the
fact that he was the owner of a half interest in his own right of the
conjugal estate which he was charged to administer. He could therefore
no more acquire a title by prescription against those for whom he was
administering the conjugal estate than could a guardian against his
ward or a judicial administrator against the heirs of an estate.
Section 38 of Chapter III of the Code of Civil Procedure, with relation
to prescription, provides that “this chapter shall not apply * * * in
the case of a continuing and subsisting trust.” The surviving husband
in the administration and liquidation of the conjugal estate occupies
the position of a trustee of the highest order and is not permitted by
the law to hold that estate or any portion thereof adversely to those
for whose benefit the law imposes upon him the duty of administration
and liquidation. No liquidation was ever made by Lasam—hence, the
conjugal property which came into his possession on the death of his
wife in September, 1908, still remains conjugal property, a continuing
and subsisting trust. He should have made a liquidation immediately (desde luego).
He cannot now be permitted to take advantage of his own wrong. One of
the conditions of title by prescription (section 41, Code of Civil
Procedure) is possession “under a claim of title exclusive of any other
right”. For a trustee to make such a claim would be a manifest fraud.

Under this view, the decision of this court in the case of Palma vs.
Palma (G. R. No. 36299, 57 Phil., 990), relied upon by the appellant
Lasam, and the decision of this court in the case of Bargayo vs. Camumot (40 Phil., 857), relied upon by the appellees are not in point.

Finding no error, we affirm the judgment of the trial court without special pronouncement as to costs in this instance.

Malcolm, Villa-Real, Imperial, and Goddard, JJ., concur.