1. REALTY; PROOF OF OWNERSHIP; ESTOPPEL. — In the year 1891 the then apparent owner of certain real estate directed a survey of the same from which a plan was made which included the realty within the land of another person, and as a witness, he then signed a document by which the owner of all the land transferred it to a third party. Held, That such acts on his part are inconsistent with a claim to any portion of the property thus surveyed, described, and conveyed, and that the evidence is sufficient to overcome the uncertain testimony of the plaintiff heird as to their continuous claim and occupation of said property.

Lucas Alconaba formerly owned a house in Borongan Samar, which was destroyed by an order of the local government authorities in the year 1885, for the reason that it stood upon the public street. It appears to have been of the depth of 5 brazas, and the entire lot occupied in connection therewith to have had a depth of 8 brazas, which left in the neighborhood of 3 brazas of land adjoining the street on the east, apparently the property of Lucas. The plaintiffs, his heirs, bring this action to recover his lot, or so much thereof as remains, from the defendant, the owner of the adjoining property on the eastward who, in 1905, included it with his property, placing a house upon it. The evidence is conflicting as to what was done with the remnant of Lucas’s land in the intervening years, the plaintiffs testifying that they had fenced it and kept it clean, while the defendant claims that it has been unoccupied and had been abandoned by the former owner.

Whatever the plaintiffs may have done on the land in question after the death of their father, it is clear from the evidence that he, in his lifetime, made no further claim to it. On the contrary, in 1891, when Juan Florentino Abinez, the father of the defendant, was buying the adjoining property, a survey was made of it under the direction of Lucas Alconaba as first judge, who, together with the second judge, measured the land, while the clerk made the plan of it by their direction. This plan shows that it extends from the land of Juan Veros in a westerly direction a distance of 26 varas and 1 palmo to the street, thus including the remnant of Lucas’s land. Not only did he take part in this survey, but as a witness he signed the document transferring the title from the former owners to Abinez. This action is entirely inconsistent with any claim on his part to a portion of the land thus described and conveyed and more than counter-balances the uncertain evidence of the plaintiffs as to their continuous claim and occupation of the property sued for.

Even in relation to real estate, similar action, amounting to a disavowal of a claim on which the other party relied and on the faith of which he incurred expense, has been in some jurisdictions held sufficient to constitute a strict estoppel.

The judgment of the Court of First Instance is affirmed, with costs of this instance against the appellants. So ordered.

Arellano, C.J., Torres, Mapa, Carson and Willard, JJ., concur.