[ G. R. No. 23781. March 16, 1926 ] 48 Phil. 884
[ G. R. No. 23781. March 16, 1926 ]
FELIPE GUINTO ET AL., PLAINTIFFS AND APPELLANTS, VS. FERNANDO LIM BONFING AND CAMILA ABENDAN, DEFENDANTS AND APPELLEES. D E C I S I O N
STREET, J.:
This action was instituted in the Court of First Instance of Cebu by the four plaintiffs, bearing the surname of Guinto, against Fernando Lim Bonfing and Camila Abendan for the purpose of obtaining a judicial declaration to the effect that the plaintiffs are owners in equal shares of a lot, with the improvements thereon, situated in the burnt district of Cebu, and to compel the defendant Bonfing to surrender the possession of the same to the plaintiffs and to pay a sum of money by way of indemnity for the exclusion of the plaintiffs therefrom. It appearing that the four plaintiffs are minors, the court, on the motion of their attorney, appointed Dalmacio Rallos as their guardian ad litem for the purpose of their proper representation before the court. Upon hearing the cause on the merits the court absolved the defendants from the complaint, without costs; and the plaintiffs appealed. It appears that the four plaintiffs are the minor children of Mariano Guinto (died, July, 1915) by his wife, Camila Abendan, one of the defendants in this case. Before his marriage with Camila Abendan, Mariano Guinto had acquired the lot in question, and he therefore held the same as separate property. On November 9, 1913, the two spouses united in the execution of the document Exhibit A, whereby they sold this land, with its improvements, to one Estanislao Labucay for the sum of Pl,500, with stipulation for the exercise of right of repurchase for the period of two years, or until November 9, 1915. As Mariano Guinto died before the period for redemption expired, he was unable to effect the repurchase; and as the date for the consolidation of the property in the purchaser approached, his widow, Camila Abendan, made an arrangement with the defendant Fernando Lim Bonfing by which the latter undertook to supply the money necessary for the redemption of the property; and on the date mentioned the redemption was effected by the payment of P1,900 to Labucay. Though the money was paid directly by Bonfing to Labucay, the parties treated Camila Abendan as the person redeeming, and in order presumably to secure the rights of Bonfing a document was executed on the same date, whereby Camila Abendan, in the character of owner, sold the property to Bonfing under a contract of sale with pacto de retro for eighteen months. However, the period stipulated for the redemption of the property in this contract passed without the exercise of the power of redemption by Camila Abendan, and under the contract the property consolidated in the purchaser. Meanwhile Camila Abendan had been paying rent for the use of the property; and this she continued to do for some time at the rate of P22.80 per month until November 9, 1916, when she ceased to make further payments. Accordingly, after the expiration of the period of redemption, Bonfing instituted an action in the Court of First Instance of Cebu (civil case No. 2576) for the purpose of recovering the property as well as the sums for which Camila Abendan was in arrears for rent. In this action the minor children, plaintiffs in the present action, were joined as codefendants with their mother, but no service of process appears to have been made upon any of them, and no guardian ad litem was appointed in that action to represent them in the proceeding. An appearance, however, was entered in their behalf by an attorney, though no authority therefor is shown. In the same proceeding Camila Abendan appeared and, after a demurrer had been overruled, answered. An answer was also filed in behalf of the minors by the same attorney representing the mother, though no authority is shown authorizing the interposition of such answer for them by said attorney. Upon hearing the cause in the case mentioned (No. 2576) judgment was rendered in favor of the plaintiff Bonfing; and in due time the judgment was carried into effect, with the result that the lot in question was taken from the defendants and placed in the possession of Bonfing. In the present action the four plaintiffs, minor children of the deceased, Mariano Guinto, who were named as codefendants with the mother in the action (No. 2576) above- mentioned, seek to recover the property, and the contention for them is that they inherited the property from their father and that their rights have not been cut off by the judicial proceeding above mentioned. Camila Abendan is of course a formal defendant only in the present action, having no interest in the property that could now be asserted by her. The defendant Bonfing relies upon the title which he is supposed to have acquired by purchase from Camila Abendan, and also upon the judgment entered in his favor in civil case No. 2576, the record of which was introduced in this case by both parties. The first question which arises upon the foregoing facts is, What rights did Bonfing acquire by the document in which Camila Abendan sold the property to him on November 9, 1915? The answer to this of course is that he acquired only such rights as Camila Abendan possessed and was able to convey. In this connection it will be borne in mind that she obtained the money from Bonfing by which the property was redeemed from the prior contract of sale made by herself and husband under the former sale to Labucay. The redemption of this property by her had the effect of revesting the property in the vendor, or vendors; but as Mariano Guinto was then dead the title reverted to the persons in whom the reversionary interest was then vested, namely, the heirs of Mariano Guinto, since the property belonged to him exclusively and was not a part of the conjugal estate. Camila Abendan was the natural guardian of the children and in effecting the repurchase of the property she must be taken to have acted in the interest of all the parties in interest, including herself and the children. Certainly, it cannot be conceded that she acquired any interest adverse to her own children other than such as the law concedes to the widow. But the defendant relies upon Alfonso vs. Natividad (6 Phil, 240, 245), as authority for the proposition that the repurchase of the land by Camila Abendan after the death of her husband gave the sole ownership to her. The validity of this proposition as applied to the present case cannot be admitted; and one point which distinguishes the present case from the case cited is that the property there in question pertained to the conjugal estate, whereas the property with which we are now concerned was the separate property of the husband. The most that can be conceded to Camila Abendan as a result of the repurchase from Labucay is that she acquired a lien upon the redeemed property to the extent necessary to reimburse her for the outlay. This equitable right undoubtedly passed to Bonfing, even supposing that he had not independently acquired an equitable lien, as he probably had, by advancing the money directly to Labucay to redeem the property from the latter. Moreover, it is to be remembered that, as widow of Mariano Guinto, Camila Abendan had the usufruct of an undivided one-fifth part of the property which of course passed to Bonfing. The undivided four-fifths pertaining to the children was not, and could not be conveyed by her to Bonfing, and that interest remained undisturbed in them. But it is claimed,—and this brings us to the second contention of the defendants,—that the interest of the children in the property, if any such existed, was destroyed by the judgment in civil case No. 2576, which is relied upon as res judicata against them. This proposition cannot be admitted, for the reason that these children were not brought before the court in said case in a manner necessary to give the court jurisdiction over them. In an action in court an infant must appear either by his general guardian or guardian ad litem appointed by the court in which the action is brought. (Sec. 116, Code of Civ. Proc.) The record in the case referred to shows that the children were not represented by anybody other than the attorney interposing an answer in their behalf, which act was merely officious. We are not unmindful of the fact that the complaint in civil case No. 2576 alleges that Camila Abendan had been appointed legal guardian of her minor children, and although this allegation is denied in both answers we may assume it to be true. But it will be noted that Camila Abendan did not purport in her answer to be speaking in the role of guardian for them; nor does any such fact appear in the answer filed in their behalf. It furthermore appears that only Camila Abendan was served with process, while the law expressly requires that a minor shall be personally served, and if he is under 13 years of age also his father, mother, or guardian. (Sec. 396, Code of Civ. Proc.) It is clear therefore that the minor defendants in that case—plaintiffs in the case now under review— were not properly before the court, and hence they were not affected by the judgment. As already suggested, the defendant Bonfing has a lien upon the undivided interest of the plaintiffs to the extent necessary to reimburse him for such part of his outlay as is proportional to the value of their part in relation to the whole, with interest thereon at the lawful rate from November 9, 1915. At the same time he is bound to account to the plaintiffs for four-fifths of the income produced by the property from the date of the filing of the complaint. Upon examining the data pertinent to this problem, including the agreed statement as to the income-producing power of the property since December 26, 1918, we find that the two items very nearly compensate each other, and we hereby declare that Bonfing’s lien has been satisfied by the income which he has received from the property to the date of the entry of this judgment. Judgment will therefore be entered reversing the appealed decision and declaring the proprietary interest of the parties as follows: The four plaintiffs, Felipe, Jose, Cesar and Carolina Guinto are owners in common of an undivided four-fifths of the property described as lot No. 2186 of the Cebu burnt area district and as more particularly described in transfer certificate of title No. 1348 of the office of the register of deeds for the Province of Cebu, with the improvements thereon, and they are also the owners of the nude property in the remaining undivided fifth of the same property, subject to the usufructuary right of the widow so long as the same shall subsist. The defendant, Fernando Lim Bonfing, is the owner of the usufructuary interest of Camila Abendan in an undivided one-fifth of this property, so long as the same shall subsist, and he will be required to account to the plaintiffs for their share of the income hereafter. We note that the defendant Bonfing has obtaind a transfer certificate of the Torrens title to the property to be issued to himself; and he will be required to surrender the same in order that another may be issued defining the interest of the litigants in conformity with this decision. No express pronouncement will be made as to costs. So ordered. Avanceña, C. J., Johnson, Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.