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[ GR No. 39327, Jun 23, 1934 ]



G. R. No. 39327

[ G. R. No. 39327, June 23, 1934 ]




This is an appeal from a judgment of the Court of Firt Intance of Cebu in an action of reivindicacion in which the plaintiff, who are the heir of Vicente Veloso, pray that they be declared the owner of an undivided half interet in lot No. 778 of the cadatral urvey of Cebu and praying further for the cancellation of certificate of tranfer No. 879 iued to the defendant.

The parties filed an agreed tastement of fact which is as follow:

"Que en la Oficina del Regitrador de Titulo de Cebu obran archivado lo iguiente documento:

"(a) Un certificado original de titulo No. 1004 referente al Lote No. 778 expedido a favor de Josefina Gantuangco, viuda. Dicho certificado de titulo e expidio en Manila el dia 2 de enero de 1918 en virtud del decreto No. 3838 y de la deciion, que ya e firme, del Juzgado de Primera Intancia de Cebu de fecha 29 de noviembre de 191.

"(b) Un documento de donacion de dicho Lote No. 778 otorgada por Josefina Gantuangco, como donante, y Jose P. Avila, como donatario. Dicho documento fue otorgado el dia 17 de abril de 1929 y ratificado ante notario publico el dia 27 de dicho me. El referido documento e ha incrito en la Oficina del Regitrador de Titulo de Cebu el dia 14 de mayo de 1929.

"(c) En virtud del documento de donacion mencionado en el incio (b), eexpidio por el Regitrador de Titulo de Cebu el certificado de tranferencia de titulo No. 879 referente al mencionado Lote No. 778 a favor del demandado Joe P. Avila. Dicho certificado fue expedido el dia 14 de mayo de 1929.

"Amba parte convienen en la autenticidad de lo dncumento mencionado en lo incio (a), (b) y (c). Lo demandante, in embargo, impugnan la validez de dicho docuraento."

A well stated in the brief of the appellant, the principal question involved in this case is whether lot No. 778 aforesaid was community property of the spouses Vicente Veloso and Josefina Gantuangco or paraphernal property of the latter. If community property, the appellant a the heir of the deceaed Vicente Veloso, are entitled to an undivided half interest in the same. It is to be noted that the genuinene of the deed of gift made by Josefina Gantuangco in favor of the defendant is not questioned nor do we find in the brief of the appellant any serious claim that Josefina had no interest in the lot which he could donate to the defendant.

Upon the decisive issue whether said lot was the community property of the spouses or the paraphernal property of Joefina, the evidence both documentary and oral is conflicting. It appear that Vicente Veloso and Josefina Gantuangco were lawfully married in the year 1877 and lived for about two year in the municipality of Carcar in the Province of Cebu; that they had no resources of their own and lived with the mother of Josefina named Placida Regis. In 1879 Vicente served for one year as assistant teacher with a alary of P10 a month. But a he was given to drinking excessively and maltreated his wife, they separated in the year 1880 and never lived together again. Vicente left home without bidding farewell and since that time Josefina had no new of him. She lived in the barrio of Valladolid in the municipality of Carcar with her mother until the year 1890 when he moved to Manila. Later he moved to Romblon where he remained till the year 1902 when he returned to Cebu where he lived with her mother till her (Joefina's) death in April, 1929.

Lot No. 778 was acquired in part in the name of Josefina by her mother and after the death of the mother Josefina purchased the remaining outstanding interest of Victoriana Regis with fund Josefina inherited from her mother. We think the trial court was entirely correct in rejecting the testimony of Dorotea Veloso, one of the plaintiff, who was the only witness who attempted to assert that Vicente Veloso had any interest in lot No. 778.

It is to be noted that Josefina obtained a Torrens title to lot No. 778 by virtue of a final decree of the Court of First Intance of Cebu dated November 29,1921. Vicente Veloso died on October 1, 1921, and Josefina on April 29, 1929. This suit was filed on June 21, 1929. The fact that Vicente Veloso, in his lifetime, and his heir for so many year after his death, took no action to challenge the Torren certificate issued to Josefina by decree of the Court of First Instance of Cebu in the year 1916 is a circumstance strongly corroborating the direct evidence that Vicente Veloso had no interest in lot No. 778.

The judgment appealed from is affirmed with costs againt the appellant.

Villa-Real, Abad Santo, Hull, and Diaz, JJ., concur.