1. ESTATES; RIGHTS OF INHERITANCE; COLLATERAL HEIRS. — The plaintiff who joins as the representative of his grandfather in a complaint with others, who are brothers and nephews of the predecessor in interest, lacks such right of representation, for it belongs in the collateral line only to the nephews and not to the grandnephews. Hence, a sister and nephews of the deceased having appeared to claim the inheritance, they, as the nearest of kin, exclude such a remoter relative as the grandnephew.

2. ID.; CONJUGAL PROPERTY; WIDOW’S RIGHTS. — The widow who claims without contradiction to be coowner with the deceased in the property he left, which the law presumes to be conjugal partnership property, is entitled to one-half thereof, and also to usufruct of a half of the remaining half, according to articles 837 and 953 of the Civil Code; and so long as this usufruct of hers is not paid this half of the remaining half is subject to payment thereof, under article 838.

The spouses Apolinario Cedeno and Roberta Montesa acquired during their marriage a piece of land, apparently of an area of 2 cavanes of corn upon which they had planted fruit trees. Apolinario Cedeno died in 1895 and Roberta Montesa in 1909. It is alleged that during the lifetime of these spouses, from 1886 to April, 1909, on which latter date Roberta Montesa died, Andres Candia was holding and cultivating the said land, but that, as stated in the complaint, he did so merely under a lease and paid the said spouses one hundred pesos semiannually; that, from May, 1909, he refused to pay the emphyteutic rent for the cultivation of the land, appropriated the land and claimed ownership thereof; and that he also took possession of four mares, twelve carabaos, and several pieces of furniture which were in the house erected on the said land — a house worth 50 pesos — which he also seized and claimed as his property. Apolinario Cedeno had three brothers and one sister, Macario, Domingo, Leon, and Cristeta, of whom only the last mentioned is living. Macario left five children, among them Tomas Cedeno; Domingo, the same number, among them a daughter named Sofia, who died leaving a son, Manuel Sarita; and Leon, four, among them, Gregorio Cedeno. All of these except Gregorio Cedeno and his brothers sue for the ownership of the land and the other personal property of ownership of the land and the other personal property of Andres Candia which, together with the fruits thereof, they requested the Court of First Instance of Cebu to sentence the latter to return to them and, further, that he indemnify them in the amount of P800, and pay the costs.

Andres Candia, a nephew of Roberta Montesa, as the son of her sister, testified that he had been brought up, from the time he was very young, in the house of the spouses Cedeno and Montesa; that he worked on the house which those spouses left at their death when it was under construction, and, from his boyhood, assisted in the cultivation of the land; that said Apolonio Cedeno, otherwise known as Isidario Cedeno, was a cabeza de barangay of the pueblo of Sibonga, who, in order to pay certain shortages of the cabeceria under his charge, on the 24th of June, 1881, sold the said land to Juan Basa Villarrosa, who held it in quiet and peaceable possession for twenty-four years and at his death such possession was continued by his sons, Sinforoso and Vicente Villarrosa, from whom witness, Andres Candia, acquired the property by purchase; that at no time di he hold the same as a lessee nor pay for it any emphyteutic rent whatever; and that he never had in his possession the animals mentioned in the complaint.

The scour absolved the defendant from the complaint, on the grounds that, with regard to the animals and real property sued for, there was no proof whatever that they were in the possession of the spouses at the time of their death, and, with respect to the land: (1) That the defendant was the possessor in good faith continuously and was presumed to hold under just title so long as the contrary should not be proved; and (2) that neither the plaintiffs nor their alleged predecessors in interest made demand for it during the period of twenty-six years, since the ownership thereof was conveyed by Isidario or Apolinario Cedeno to Juan Basa Villarrosa, on the 24th of June, 1881, it being evident that during this very long period of time they did not obtain possession of the property.

The judgment having been appealed through a bill of exceptions and the appeal having been heard, we determine: With respect to the personal property, that the opinion of the trial court is unchangeable, as, in this regard, it has not been impugned as erroneous on appeal, and is certainly in accord with the merits of the case; and, as concerns the land, (1) that this action is one for the recovery of possession from the present possessor, and, in order to bring it, the plaintiffs make use of hereditary right, by styling themselves the heirs of Apolinario Cedeno; (2) that the plaintiffs are, on the one side, Cristeta Cedeno, who is a sister of the deceased Apolinario Cedeno, on another, some nephews and nieces of the latter, his brother Macario’s children; and on the other, some children of Domingo Cedeno, among them, Manuel Sarita, the principal plaintiff, in representation of his deceased mother, Sofia, also a daughter of Domingo Cedeno; (3) that they assert their hereditary right in an intestate succession, and that the land in question was the community property of the deceased spouses, Cedeno and Montesa, as established hypothetically, especially by the plaintiffs’ witnesses, Estanislao Solano and Irineo Tormis; (4) that, such being the case, they could demand, as the legitimate heirs of Apolinario Cedeno, only one-half of the land, but not the other half which belonged to Roberta Montesa, of whom they are not heirs ab intestato, from the fact that they are collateral relatives of this woman’s husband: so that the claim to all the land is manifestly unfounded; (5) that, moreover, it is manifestly unfounded in so much as Sofia’s son, Manuel Sarita, in representation of his mother, could not act as a plaintiff, nor could she, Sofia, do so by representing her father, Domingo; on the hypothesis that the right of representation in the collateral line can only take place in favor of the children of brothers or sisters (Civil Code, art. 925, par. 2), and the said Manuel Sarita is not a child of a brother, as are the children of Macario and Domingo Cedeno; and, finally, that it was manifestly imprudent also to include as plaintiffs Gregorio, Lorenzo, Abundio and Jose, the children of Leon Cedeno, a brother of the deceased Apolinario Cedeno, when, as the first of them testified, they did not attempt to take part in this litigation:jgc:chanrobles.com.ph

"JUDGE. Is M Sevilla your attorney?

"WITNESS. No, sir.

"Q. Have you employed him? — A. No.

"Q. Have you spoken to him about this case? — A. No, sir.

"Q. So, then, you were never in Mr. Sevilla’s office? — A. I do not know where it is.

"Q. Have you authorized this action against Andres Candia? — A. No, sir.

"Q. Have your brothers, Lorenzo, Juan, and the others, done so? — A. They have not.

"Q. So that in this suit neither you nor your brothers now have any claim against Andres Candia? — A. No."cralaw virtua1aw library

Elsewhere this same witness said:jgc:chanrobles.com.ph

"My uncles and cousins spoke to me about the institution of this suit; I told them that it could not be, because the land was purchased by Juan Villarrosa at the time that our deceased uncle found himself obliged to cover certain shortages against him in the cabeceria; it was sheen that he sold the land."cralaw virtua1aw library

In view of the foregoing considerations, we decide, with respect to the exercise of the hereditary right derive from the intestate succession of Apolinario Cedeno:chanrob1es virtual 1aw library

First. That Manuel Sarita, the principal plaintiff, in whose house, according to Exhibit D, there was drawn up at his request the engagement of all the plaintiffs to confide the suit to the attorney who has conducted it, has absolutely no such right, because he cannot represent his grandfather Domingo, since, as aforesaid, in the collateral line the right of representation can only take place in favor of the children of brother or sisters, but not in favor of the grandson of a brother, such as is the said Manuel Sarita, the son of Sofia Cedeno who, in turn, was the daughter of Domingo Cedeno.

Second. That, on the hypothesis that such hereditary right derived from the intestate succession of Apolinario Cedeno, does exist, it could only be exercised by Cristeta Cedeno, the children of Macario Cedeno, and those of Domingo Cedeno, but not by Manuel Sarita, because in inheritances the nearer relative excludes the more remote, excepting the right of representation in proper cases (Civil Code, art. 921); from which it is inferred that, in pushing forward Cristeta Cedeno, the children of Macario Cedeno and those of Domingo Cedeno, to exercise such a hereditary right, it should have been noticed that the personality of these parties as the nearest relatives excluded that of Manuel Sarita, the son of Sofia Cedeno, of a more remote degree.

Third. That, on the same hypothesis, in the eyes of the law no meaning whatever could be given to the document, Exhibit H of the plaintiffs, wherein it is made to appear that the widow of Apolinario Cedeno, Roberta Montesa, implored of the heirs of her deceased husband that she be allowed to continue in the possession of the land and the house of the family; inasmuch as, as coowner of such property, she was entitled to one-half of the other half of the same, pursuant to the provisions of articles 837 and 953 of the Civil Code, and until she was satisfied for her part of usufruct, this held of the other half remained liable for the payment of such part of usufruct. (Civil Code, art. 838.)

Fourth. The hypothesis disappears from the moment that it is proved that at the death of such alleged predecessor in interest in the inheritance, the land in question was not owned by him, it having been transferred in 1881, according to a conclusion established by the trial judge. Therefore, the action for the recovery of possession, derived from such alleged inheritance, cannot exist.

This transfer of the land affected by Isidario or Apolinario Cedeno was originally the title alleged by the defendant — a title which must not be presumed in the present case, but proved. It is true that the possessor, in the capacity of owner, has in his favor the legal presumption that he holds under lawful title and cannot be compelled to exhibit it. (Civil Code, art. 446); but it also true that when the defendant agrees with the plaintiffs that the thing demanded belonged to a determinate person during his lifetime from whom these latter claim to derive their right, the existence is thereby admitted of a right of ownership opposed to title of the present possessor, and hence logically the necessity for the latter to prove his title and exhibit it, in order to destroy the contrary presumption in favor of that prior ownership.

The defendant, according to the finding of the trial judge, has proved that he has such a title, by the exhibition of three documents: one, of the sale of Isidario or Apolinario Cedeno to Juan Basa Villarrosa (Exhibit 2); another, of the sale with pacto de retro by the latter’s son, Sinforoso Villarosa, to the defendant (Exhibit 3); and the other of a final sale by the other son, Vicente Villarosa, to the same party, Andres Candia (Exhibit 4).

Against this finding of the lower court, the appellants allege: 1. That Isidario Cedeno, the vendor, has nothing to do with Apolinario Cedeno, his predecessor in interest; and, 2. That the land in Talamban known as that of Juan Basa Villarosa is about 15 or 20 brazas distant from the land in Talamban which is concerned in this litigation.

But the finding impugned is in no wise erroneous. Tomas Cedeno, one of the plaintiffs, testified that his uncle Apolinario had the baptismal or Christian name of Isidario, was better known by the nickname of Adiot, and we the only cabeza de barangay in Sibonga with the surname of Cedeno. Domingo Cedeno, who was erroneously made to appear as a plaintiff, said that the original owner of the land in question was "his deceased uncle, Isidario Cedeno," and that Isidario was the true name. The averment of the appellants that "the finding of the court is precisely contrary to the agreement made by both parties," (brief, 8) is in all respects incorrect. "In the said agreement, they say, no other name than that of Apolinario was recorded and admitted to be the name of the plaintiffs’ predecessor in interest. By that same agreement the defendant could not be heard to prove another so different name as that of Isidario for the purpose of confusing it with that of Apolinario . . . (brief, 8). The agreement only says: "By agreement between the attorneys for both parties, the complaint in this case is understood to be amended in the sense that the name of Apolinario Cedeno, which occurs in the first line of the first paragraph of the complaint, is substituted for the name of Apolinario Cedeno; it being agreed that the amended answer which the court has just admitted refers to the complaint so amended." The only point that appears to be agreed upon is that where the plaintiffs say in their complaint Apolinario, the same shall be read Apolinario; but it was not agreed that the party Apolinario might not be known by any other name than that of Apolinario, nor that the defendant should not try to prove another name as that of Isidario.

It is also in all respects inexact that the land in Talamban, the subject matter of the complaint, which formerly belonged to Apolinario Cedeno, is different from the land in Talamban which the defendant claims was sold by Isidario Cedeno to Juan Basa Villarosa. The complaint says: "Boundaries: On the north, by Calixto Nejarda; on the south, by the river called Grande and Alejandro Mirafuentes; on the east, by the same river, Grande; and on the west, by a large rock." Defendant’s Exhibit 2 says: "Bounded on the north by Calixto Nejarda; on the east by Calixto Nejarda; on the south by Alejandro Mirafuentes; and on the west by Miguel and a large rock." The plaintiffs’ witnesses, Solano and Cuestas, and the plaintiffs themselves, Sarita and Tomas Cedeno, designate the same boundaries as does the defendant, giving also as the eastern boundary, besides the river, Calixto Nejarda . . . The interposition of "Miguel" as being on the west, written in other documents as on the south, is perfectly explained by the defendant: It refers to Miguel Calixto who broke up the ground between the large rock and the land in dispute; and so it is that in subsequent documents it also appears as the western boundary.

For the preceding reasons, the judgment appealed from is affirmed, with the costs of this instance against the appellants.

Torres, Mapa, Johnson, Carson, and Trent, JJ., concur.