FIRST DIVISION

[G.R. No. L-29771. May 29, 1987.]

CONSOLACION LUMAIN DE APARICIO, accompanied by her husband

BENITO APARICIO , plaintiffs-appellees, vs. HIPOLITO PARAGUYA ,
defendant-appellant.

SYLLABUS

1. CIVIL LAW; WILLS; INSTITUTION OF HEIRS; DECEDENT WITHOUT ANY

COMPULSORY HEIRS MAY DISPOSE ALL OR ANY PART OF HIS ESTATE IN FAVOR OF
ANY PERSON HAVING CAPACITY TO SUCCEED. — The Court nds it unnecessary to
determine the paternity of appellee Consolacion in this case. In the last will and
testament of Fr. Lumain he not only acknowledged appellee Consolacion as his natural
daughter but designated her as his only heir. Said will was duly probated in Court. As Fr.
Lumain died without any compulsory heir, appellee Consolacion is therefore his lawful
heir as duly instituted in his will. One who has no compulsory heirs may dispose by will
of all his estate or any part of it in favor of any person having capacity to succeed.
2. ID.; MORAL DAMAGES; ESSENTIAL INGREDIENT. — Appellee merely
pursued an honest claim to the property in question. No bad faith had been imputed nor
had the alleged damages suffered been established. The essential ingredient of moral
damages is proof of bad faith and the fact that moral damages was suffered as shock,
mental anguish, or anxiety although the amount of damages suffered need not be
shown.

DECISION

GANCAYCO , J : p

Trinidad Montilde, a young lass of Tubigon, Bohol had a love affair with a priest,
Rev. Fr. Felipe Lumain and in the process she conceived. When she was almost four (4)
months pregnant and in order to conceal her disgrace from the public she decided to
marry Anastacio Mamburao. Father Lumain solemnized their marriage on March 4,
1924. 1 They never lived together as man and wife. On September 12, 1924, 192 days
after the marriage, Trinidad gave birth to Consolacion Lumain. As shown by her birth
certificate her registered parents are Trinidad and Anastacio. 2 On October 31, 1936, Fr.
Lumain died but he left a last will and testament wherein he acknowledged Consolacion
as his daughter and instituted her as the sole and universal heir of all his property rights
and interests. 3 This was duly probated in the Court of First Instance of Bohol on June
11, 1938 and on appeal it was affirmed by the Court of Appeals. 4
Soon after reaching the age of majority Consolacion led an action in the Court
of First Instance of Bohol against Hipolito Paraguya for the recovery of certain parcels
of land she claims to have inherited from her father Fr. Lumain and for damages. After
trial on the merits a decision was rendered on July 6, 1962, the dispositive part of which
reads as follows:
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 "PREMISES CONSIDERED, the Court renders judgment:

(a) Declaring that plaintiff is entitled to the possession of the third

parcel of land described in the 6th amended complaint, with all the
improvements. If defendant Hipolito Paraguya is possessing this property, he is
hereby ordered to vacate it and deliver its possession to plaintiff;

(b) Declaring defendant Hipolito Paraguya owner of the second parcel

of land described in the 6th amended complaint, with all the improvements. If
plaintiff is possessing this land or any portion thereof, she is hereby ordered to
vacate said property and to deliver its possession to defendant Paraguya;

(c) Declaring defendant Hipolito Paraguya owner of Portions B and A

of the sketch Exhibit E-1, with all the improvements. If plaintiff is possessing
these portions or any part thereof, she is hereby ordered to vacate the same and
to deliver its possession to defendant Hipolito Paraguya;

(d) Declaring that plaintiff shall be entitled to the possession of

Portions H, F and G, of Sketch Exhibit E-1, with all the improvements. If defendant
is possessing these portions or any part thereof, he is hereby ordered to vacate
them and to deliver the possession thereto plaintiff Consolacion Lumain Aparicio;
and

(e) Sentencing plaintiff to pay the Court the docketing fees and all
other legal expenses.

The present judgment is rendered without special pronouncement as to

costs." 5

Not satis ed therewith, the defendant now interposed this appeal to the Court of
Appeals alleging the trial court committed the following errors: Cdpr

"I

THE LOWER COURT ERRED IN DECLARING THAT THE PLAINTIFF-

APPELLEE IS ENTITLED TO THE POSSESSION OF PORTION G OF THE SKETCH
EXHIBIT 'E-1,' WITH ALL THE IMPROVEMENTS.

II
THE LOWER COURT ERRED IN DECLARING THAT PLAINTIFF-APPELLEE IS
A NATURAL CHILD OF THE LATE REV. FR. FELIPE LUMAIN.

III

THAT THE LOWER COURT ERRED IN NOT DECLARING THAT THE

PLAINTIFF-APPELLEE IS LIABLE TO PAY THE DEFENDANT-APPELLANT FOR
MORAL DAMAGES AS ALLEGED IN THE COUNTER-CLAIM." 6

In a resolution of September 27, 1968, the Court of Appeals forwarded the

records of this case to this Court as appellant does not question the ndings of facts
of the court a quo but only the correctness of the conclusions drawn therefrom. 7
The undisputed findings of facts of the trial court are:
"It is a fact admitted in the evidence of both parties that the spouses
Roman Lumain and Filomena Cosare were the owners of the parcels of land
identified as first, second and third parcels in the sixth amended complaint.
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 The testimonial evidence has established the following facts.

The spouses Roman Lumain and Filomena Cosare and their children Rev.
Fr. Felix Lumain and Macario Lumain are dead. This fact is corroborated by the
following death certificates:

(a) Exhibit I — death certi cate showing that on August 20, 1929
Roman Lumain, husband of Filomena Cosare, was buried in the Catholic
Cemetery of Tubigon, Bohol;

(b) Exhibit J — death certi cate showing that Filomena Cosare, wife of
Roman Lumain, was buried on October 6, 1934 in the Catholic Cemetery of
Tubigon, Bohol;
(c) Exhibit K — death certi cate showing that Rev. Fr. Felipe Lumain,
son of Roman Lumain and Filomena Cosare, was buried on November 3, 1936 in
the Catholic Cemetery of Tubigon, Bohol;

(d) Exhibit L — death certi cate showing that Macario Lumain,

husband of Ceferina Falcon and son of the spouses Roman Lumain and
Filomena Cosare, was buried on May 20, 1941 in the Catholic Cemetery of
Tubigon, Bohol.

It appears proven at the same time that Ceferina Falcon de Lumain died on
June 29, 1953, as shown by Exhibit M.

Several witnesses had declared that the spouses Roman Lumain and
Filomena Cosare were possessing as owners and enjoying the products of the
three parcels of land described in the complaint; that after their death, it was their
two children Rev. Fr. Felipe Lumain and Macario Lumain who succeeded them in
the possession of the same property.

Defendant Paraguya disclaims no right over the third parcel of land

described in the 6th amended complaint. As a matter of fact, in the course of the
trial the Court rendered judgment declaring plaintiff Consolacion Lumain Aparicio
owner of said property. This judgment, however, was set aside because plaintiff's
counsel manifested that he would present evidence for damages, in connection
with this property which, according to plaintiff, had been possessed by defendant
Paraguya.
Defendant claims right over the second parcel of land described in the 6th
amended complaint, alleging that he had bought it from the late Roman Lumain,
the admitted original owner. In support of his contention, defendant offered in
evidence Exhibit 7 which is a deed of pacto de retro sale for the sum of P170. The
parcel of land sold in this document is described as follows:
'Por el Noreste linda con el terreno del vendedor, por el Sureste con
el de Macario Lumain, por Suroeste con el del vendedor y por el Noroeste
con el del mismo vendedor y con el rio Bateria.'
If the boundaries of the land mentioned in Exhibit 7 were compared with
the boundaries of the second parcel of land described in the 6th amended
complaint, one would not hesitate to conclude that this parcel of land described in
the complaint is the same property sold to defendant Hipolito Paraguya on
August 1, 1928, for the sum of P170.00, by means of Exhibit 7.

It is true that vendor Roman Lumain reserved the right to repurchase the
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 property at any time, but in the light of the provisions of Article 1508 of the old
Civil Code which is the law applicable to the case, it is obvious that Roman
Lumain and his heirs have lost the right the redeem the property. Article 1508 of
the old Civil Code provides:

'The right referred to in the next preceding article, in default of an

express agreement, shall endure four years, counted from the date of the
contract.
Should there be an agreement, the period shall not exceed ten
years.'

Although the area of the land mentioned in Exhibit 7 is 13,000 square

meters, while the area of the land described as Parcel 2 is 14 ares and 64 centares
or 1,464 square meters, we think that this discrepancy is just a result of mistake.
Our Supreme Court ruled that the correct boundaries of a land prevail over the
discrepancy as regards its area.
We, therefore, conclude that the property described as second parcel of
land in the 6th amended complaint belongs to defendant Hipolito Paraguya.
Although Exhibit 7 is a private document we entertain no doubt as to its
authenticity established by testimonial evidence of defendant. Moreover, Macario
Lumain, son of Roman Lumain, had signed as instrumental witness to this
document and if we compared his signature on Exhibit 7 with his signatures on
the documents Exhibits C-1, C-2, C-3, C-4 and C-5 offered in evidence by plaintiff,
there would be no doubt that the signature a xed on Exhibit 7 is the authentic
signature of Macario Lumain.
In connection with this case, the Court issued on August 7, 1952 the
following order (Exh. D):

'When this case was called today, Atty. Diosdado R. Delima and
Conrado D. Marapao, counsel for the parties, submitted the following
agreement:
'Comes the undersigned attorney and respectfully proposes for an
appointment of a Commissioner of the Court for the following purposes:
1. To localize Parcel II of the Second Amended Complaint under
Tax No. 6862 superseded by Tax No. 20836 in the name of Roman
Lumain;
2. To localize all the portions in the said parcel which are
claimed by Hipolito Paraguya and to make a sketch of the portions
showing its relative positions with one another, showing its dimensions in
meters, and showing its relative position in relation to the whole parcel;
3. To localize the portion in same parcel which are claimed by
Ceferina Falcon and to make a sketch of the said portion showing its
dimensions in meters and showing further its relative position in relation to
the whole parcel.

The expenses of the Commission of the court to be shared pro rata by

Consolacion Lumain Vallesteros, Ceferina Falcon and Hipolito Paraguya.

WHEREFORE, it is respectfully prayed that the above enumerated

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 proposals be granted by the Court and a Commissioner duly appointed to carry
out.
Tagbilaran, Bohol, August 7, 1952.

(Sgd.) DIOSDADO REYES DELIMA

Attorney for the Plaintiff

I AGREE:
(Sgd.) CONRADO MARAPAO
Attorney for the Defendants
Ceferina Falcon and Hipolito
Paraguya'

IN VIEW WHEREOF, the court hereby appoints Mr. Genaro Galon as

Commissioner in charge to localize the properties in accordance with the
foregoing agreement. Mr. Galon shall submit his report within the period of fteen
days. Before making this localization, Mr. Galon shall notify the attorneys of both
parties two weeks in advance.
By agreement of the parties, the trial of this case is hereby postponed until
further assignment.
SO ORDERED.
Given in open Court, Tagbilaran, Bohol, August 7, 1952.

(Sgd.) HIPOLITO ALO

Judge, 4th Judicial
District'
In compliance with this order, the appointed commissioner Genaro Galon
submitted his report (Exhibit E); and attached thereto is the sketch marked Exhibit
E-1.
According to the report (Exhibit E), the land covered by tax declaration No.
20836 — which is the rst parcel of land described in the 6th amended complaint
is represented in the sketch Exhibit E-1 by the space enclosed within the black
lines. For clari cation purposes the Court had marked with letters H, B, A, G and F
the portions enclosed within the black lines. 'The space marked letter C, outside
the black lines, represents the land of Macario Lumain, acquired later by
defendant Hipolito Paraguya. LexLib

Defendant Paraguya offered in evidence Exhibit 5, a deed of pacto de retro

sale executed in his favor by the late Macario Lumain on December 6, 1937. This
document describes the following parcel of land:

'El citado terreno es parte de la Declaracion No. 20836 a nombre de

mi difunto padre Roman Lumain y linda por el Noreste con el del vendedor
y mide 39.30 metros; por el Sureste linda con el del mismo vendedor y
mide 67.90 metros; por el Suroeste linda con la carretera provincial y mide
27.00 metros y por el Noroeste que tiene cinco lados linda con el del
mismo vendedor y mide por dichos cinco lados 81-60 metros.'
If we linked the land described in Exhibit 5 with Portion A of the sketch
Exhibit E-1, which portion, according to the report of Commissioner Galon, was
indicated by defendant Paraguya as property belonging to him, we would nd
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 that the land described in Exhibit 5 is the same Portion A of the sketch Exhibit E-1,
taking into account the length of the sides of Portion A and the length of the sides
of the land sold under Exhibit 5. Portion A is precisely the portion claimed by
defendant, according to Commissioner's report.

The authenticity of the signature of Macario Lumain on Exhibit 5 has been

established by witnesses, and corroborated by documents Exhibits C-1, C-2, C-3, C-
4 and C-5 offered in evidenced by plaintiff.
The includible conclusion, therefore, is that Portion A of the sketch Exhibit
E-1 was bought by defendant Hipolito Paraguya from Macario Lumain. Let us not
lose sight of the fact that the land described in Exhibit 5 and Portion A of the
sketch Exhibit E-1 have identical descriptions: On the NE is bounded by the land
of Macario Lumain which was inherited by him from his father; on the SE by the
same vendor Macario Lumain and provincial road; and on the NW by the same
vendor. Macario Lumain has also lost the right to repurchase.
The report of the commissioner Exhibit E also states that defendant
Hipolito Paraguya claimed to be the owner of Portion B of the sketch Exhibit E-1.
During the trial, Hipolito Paraguya maintained that on August 28, 1948 he bought
from Raymundo Garduque a parcel of land by means of Exhibit 6-A. This
document describes the property as follows:
'Este terreno es parte de la Declaracion No. 20836 a nombre del
difunto Roman Lumain. Y linda por el Norte, con el del difunto Macario
Lumain; por el Este, con el del difunto Roman Lumain; por el Sur, con la
Carretera Provincial; y por el Oeste, con el del mismo difunto Roman
Lumain.'
Defendant Paraguya further maintains that Raymundo Garduque had
bought this property from Roman Lumain by means of Exhibit 6 which is
translated into English in Exhibit 6-1. Exhibit 6-1 describes the property sold by
Roman Lumain to Raymundo Garduque as follows:
'On the North, it is bounded by the rice field of Macario Lumain
which adjoins the parcel of rice field of the vendor; on the East, land of
vendor; on the South, is Provincial Road; and on the West, it is bounded by
the land of the vendor.'
If we link the description of Exhibit 6-1 with the description of Portion B of
the sketch Exhibit E-1, there would be no doubt that this Portion B is the same
land sold by Roman Lumain to Raymundo Garduque, by means of Exhibit 6,
bearing in mind that the boundaries of Portion B tally with the boundaries of the
land described in Exhibit 6. We, therefore, conclude that Portion B also belongs to
defendant Hipolito Paraguya.
The report of the commissioner Exhibit E reads as follows: cdll
'En complimiento a la orden de este Juzgado de fecha 7 de Agosto,
1952 en la causa arriba titulada, el que suscribe como commissionado en
dicho asunto, previa noti cacion por escrito a ambas partes y a sus
respectivos Abogados, se contituyo al barrio de Tangnan, Tubigon, Bohol,
para localizar el terreno bajo declaracion Tax No. 20836 a nombre de
Roman Lumain y de las porciones reclamadas por Hipolito Paraguya y
Ceferina Falcon Vda. de Lumain, y con asistencia de las partes se prodedio
la localizacion de los mismos, de cuyo resultado, tiene la honra de someter
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 a Su Señoria el adjunto croquis con los siguientes:

1. que la porcion limitada con lineas de tinta negra representa el

terreno indicado por la demandante Consolacion M. Vallesteros, como
terreno de Roman Lumain, bajo declaracion Tax No. 20836.
2. Que la pintada con lapiz encarnado, representa la reclamada
por Hipolito Paraguya bajo declaraciones Tax Nos. 13497 y 13819 de
Hipolito Paraguya.
3. Que la pintada con lapiz azul, representa el terreno
reclamado por Ceferino Falcon Vda. de Lumain.
4. Que la manchada con puntitos de lapiz azul, representa la
porcion reclamada por Hipolito Paraguya, que segun el lo adquirio de
Pelagio Torrefranca.
5. Que la porcion comprendida entre lineas de tinta negra
angulos, A, B y C, representa el terreno descrito en la declaracion Tax No.
6862 en nombre de Roman Lumain de Acuerdo con su croquis
correspondiente.
Es todo, lo que al que suscribe puede informar a Su Señoria, para su
consideracion y efectos procedentes.
Respetuosamente sometido.
Tagbilaran, Bohol, 22 de Septiembre, 1952.
(Fdo.) GENARO GALON
Commisionado'
Defendant Hipolito Paraguya claims right over portion G of the Sketch
Exhibit E-1, which portion is within the space enclosed within the black lines of the
sketch Exhibit E-1.
Hipolito Paraguya maintains that he had bought this Portion G from
Pelagio Torrefranca by means of a document which was lost. He offered,
however, in evidence Exhibits 8 and 9, statements of the sister and brother of the
deceased Pelagio Torrefranca to the effect that the latter had sold a parcel of
land to Hipolito Paraguya.
But if we examine the sketch Exhibit E-1 we will nd that the land of
Pelagio Torrefranca is outside the land of Roman Lumain enclosed within the
black lines. The land of Pelagio Torrefranca is even intercepted by other lands
belonging to Juan Acidillo and Valerio Roba. If we also examine the plan Exhibit
11 of the land of Roman Lumain surveyed by a surveyor, we will nd that the land
of Roman Lumain is bounded on the North by Valerio Roba and Jorge Acidillo.
The land of Pelagio Torrefranca is not mentioned and possibly it is on the North
of the lands of Valerio Roba and Jorge Acidillo.
Consequently, the land bought by defendant Hipolito Paraguya from
Pelagio Torrefranca is outside the land of Roman Lumain described in the plan
Exhibit 11. It must not be forgotten that this plan was offered in evidence by
defendant.

In the light of the foregoing, we conclude that out of the rst parcel of land
described in the 6th amended complaint defendant had only acquired Portions A
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 and B described in the plan Exhibit E-1.
We do not overlook the fact that Macario Lumain, as co-owner of the rst
parcel of land described in the 6th amended complaint could not select any
portion thereof as his own, as long, as there was no actual partition of the
property. We believe, however, that it would be more advantageous to the plaintiff
to disregard this procedure, since a partition would be more costly for her, for in
such case defendant would claim reimbursements for necessary and useful
expenses. Moreover, the sales took place almost 10 years before the ling of the
complaint, and it would be unjust for defendant Paraguya to suffer the adverse
effects of the laches committed by plaintiff.
Plaintiff maintains that she is entitled to inherit the property of the
deceased Rev. Fr. Felipe Lumain on the ground that she had been recognized as
daughter of the latter in his testament Exhibit A-1 which has been duly probated
by this Court and the Court of Appeals, as shown from Exhibit A-2.
Defendant, on the other hand, maintains that plaintiff is not entitled to
inherit the property of the deceased Rev. Fr. Felipe Lumain for the reason that she
is an adulterous child. He further maintains that the acknowledgment of plaintiff
by the late Fr. Felipe Lumain is null and void she being not a natural child of the
latter. In support of this contention, defendant offered in evidence Exhibit 2 which
is the marriage certi cate of Anastacio Mamburao and Trinidad Montilde, mother
of plaintiff. According to this certi cate, the marriage of both spouses took place
on March 4, 1924. Defendant also offered in evidence Exhibit 1 showing that
plaintiff was born on September 12, 1924. Taking into account both documents, it
can be said that plaintiff was born six months after her mother's marriage to
Anastacio Mamburao. During the trial Trinidad Montilde declared that she had
never lived together with her husband and at present the latter is living with
another woman.

Bearing in mind the date of the birth of plaintiff, it is evident that her
mother Trinidad Montilde was still single at the time she was conceived. It is a
legal presumption that plaintiff is the daughter of the spouses Anastacio
Mamburao and Trinidad Montilde, but bearing in mind that this presumption is
disputable and was successfully overcome by Trinidad Montilde, plaintiff's
mother, we nd no other avenue than to declare that plaintiff is a natural child of
the late Rev. Fr. Felipe Lumain. Consequently, she can be acknowledged by the
latter as his own child.
But in the remote possibility that plaintiff is not a natural child of the
deceased Fr. Felipe Lumain, we still maintain that, under the latter's will (Exhibit A-
1), she is entitled to claim the disputed property, she having been instituted in the
will as universal heir. This document contains the following provisions:
'4. — Dono tambien a la mencionada niña, Consolacion M. Lumain,
mi homestead consistentente en una parcela de terreno de 24 hect. situada
en el barrio de Calatrava, Carmen, Bohol, con todas sus mejoras; todas
Acciones e interesesen la JAGNA ELECTRIC SERVICE CO., Jagna, Bohol;
todos los bienes muebles e immuebles que me corespondan de la herencia
de mis padres; y todos los bienes e intereses que yo consiga en lo futuro.
(The following words are written in pencil without initial of the testator:
Estoy asegorado por la Insular Life Assurance Co. en la cantidad de Dos
Mil Pesos, y la beneficiaria de mi Poliza es la misma consolacion.)
Is plaintiff entitled to claim the entire rst parcel of land described in the
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 6th amended complaint? Let us not forget that the spouses Roman Lumain and
Filomena Cosare died leaving two legitimate children: Rev. Fr. Felipe Lumain and
Macario Lumain. Let us not either forget that Fr. Lumain died ahead of Macario
Lumain. Under the circumstances, therefore, Fr. Lumain did not become the owner
of the share of Macario Lumain, he having died ahead of the latter. Macario
Lumain could not either inherit the share of his brother, because the latter had
instituted the plaintiff as his legal heir. Plaintiff, on the other hand, cannot inherit
the property of the deceased Macario Lumain in view of the following provisions
of Article 943 of the old Civil Code:
'A natural or a legitimated child has no right to succeed ab intestate
the legitimate children and relatives of the father or mother who has
acknowledged it; nor shall such children or relatives so inherit from the
natural or legitimated child.'
In the light of the foregoing, it is obvious that, after the death of Fr. Felipe
Lumain, plaintiff and Macario Lumain became co-owners of all the properties left
by their deceased parents. Consequently, plaintiff is only an owner of one-half
(1/2) undivided share of said properties and the remaining undivided half belongs
to the heirs of the late Macario Lumain who took no intervention in this case. And
because of this fact, the Court can not render a judgment determining the
ownership of the property in question, on account of the fact that the heirs of the
deceased Macario Lumain are not parties to this case.

Considering, nevertheless, that a co-owner can le an action to recover the

possession of a property from any stranger, the Court believes that this aspect
can be determined by the Court in its judgment.
It appears from the record that plaintiff was exempted from payment of
legal fees on account of her alleged poverty. But it appears from the evidence that
she is not a pauper, she having several properties not involved in the present
action. She shall, therefore, be sentenced to pay the Court the docketing fees and
all other legal expenses.
Plaintiff's evidence regarding damages is insu cient, for the reason that
this court can not determine exactly the source of those damages. As may be
seen from this decision, plaintiff had led six complaints and had been changing
the lands she was claiming, as well as the defendants, thus showing that she had
led at random her actions. Because of this, the Court cannot determine what
property shall be the basis of damages and who are the persons liable." 8

Under the rst assigned error appellant contends that portion G of the sketch
Exhibit E-1 with all the improvements belongs to him and that he is entitled to its
possession. In support thereof appellant argues —
"This particular portion of land known as portion G of the sketch Exhibit 'E-
1' declared in the name of the real owner of the defendant-appellant herein under
Tax Dec. No. R-13497, (Exh.: '9-b') formerly under Tax Dec. No. 23216 (Exh.: '9-a')
in the name of the former owner Rev. Father Pelagio Torrefranca is outside the
land in question. (See IV last paragraph of p. 23 & 24; letter B last paragraph of p.
31 and letter C 1st paragraph of p. 32, Record on Appeal; (See also IV 2nd
paragraph of p. 41, Record on Appeal).
We nd support in this contention from the report of the Commissioner
(Exhibit 'E') in paragraph 2 and 4 of said report: (See Record on Appeal, pp. 59-
60).
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 Par. 2 of the Commissioner's Report (Exhibit 'E') states:
'Que la pintada con lapiz encarnado, representa la reclamada por
Hipolito Paraguya bajo declaraciones Tax Nos. 13497 y 13919 de Hipolito.'
(p. 60, Record on Appeal)

Par. 4 of the said Commissioner's Report (Exhibit 'E') states:

'Que la manchada con puntitos de lapiz azul, representa la porcion
reclamada por Hipolito Paraguya, que segun el lo adquirio de Pelagio
Torrefranca.' (P. 60, Record on Appeal)

The name of Pelagio Torrefranca or the land of Pelagio Torrefranca is not

mentioned because the Blueprint (Exh.: '11') was made long time ago in 1910
before Pelagio Torrefranca bought the land from Valerio Roba (the former owner).
Exh.: '11' is offered in evidence by the defendant Hipolito Paraguya to
show to the Court that the land of Pelagio Torrefranca, identi ed as G (in Exh. 'E-
1') is outside the land of Roman Lumain as can be seen by comparing the
blueprint (Exh. '11') and the sketch (Exh. 'E-1').

If the land of Pelagio Torrefranca which is now owned by the defendant

Hipolito Paraguya (Letter G in Exh. 'E-1') is outside the land of Roman Lumain
(outside of heavy lines of Blueprint Exh. '11' and sketch of Galon Exh. 'E-1') then
the plaintiff can not be given such land for she is only claiming interest in and to
that parcel of land of Roman Lumain bearing Tax No. 20836. In the original
complaint as well as the several amended complaints, the six amended complaint
and supplemental complaint Tax Dec. No. 23216 of the late Rev. Father Pelagio
Torrefranca (now owned by defendant-appellant Paraguya, Letter G in Exh. 'E-1')
is not included. Tax No. 23216 has been revised to R-13497 in defendant-
appellant's name. Still this land identi ed as Letter G in Exh 'E-1' now under Tax
Dec. No. R-13497 is not included in all the plaintiffs' complaint (see Exhibits '9-a'
and '9-b,' 10 and 10-a to 10-g).

In the Blueprint (Exh. '11') the name of Valerio Roba appeared as the owner
of that parcel known as Portion G (as shown in Exh 'E-1') for at that time in 1910
Valerio Roba was still the owner. The blueprint (Exh. '11') was made and surveyed
in 1910. But after 1910 Pelagio Torrefranca acquired this land (Portion G) from
Valerio Roba. This particular Portion G is now declared under Tax Dec. No. R-
13497 in the name of defendant-appellant Hipolito Paraguya and formerly
declared under Tax Dec. No. 23216 in the name of the former owner Pelagio
Torrefranca. (See Exhibits '9-a', '9-b', '10' and '10-a' to '10-g' and Exhibits '8' and
'9').

The Court should take notice that the land in the name of former owner
Valerio Roba (known as Portion G in Exhibit 'E-1') is the land acquired and owned
by Rev. Father Pelagio Torrefranca and later sold by Rev. Father Pelagio
Torrefranca to the defendant-appellant Hipolito Paraguya is outside the land
(outside the Black Lines of Exhibits "11" and 'E-1') of the late Roman Lumain as
shown in the blue print (Exhibit '11') a map of the land of the late Roman Lumain
made and surveyed in 1910. There is no question therefore that this Portion G
(shown in Exh. 'E-1') is not the land of the late Roman Lumain, hence outside the
land in question. The Court has no jurisdiction over this land Portion G as shown
in Exhibit 'E-1' for it is not a part of the land of Roman Lumain whose properties
are the ones in question (See Exhibits '11' and 'E-1' — These two Exhibits '11' and
'E-1' should be compared as they are closely connected to each other.)
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 This is supported by the ndings of the Lower Court found on page 61, 1st
Sentence of the 3rd Paragraph of the Decision, (p. 61 Record on Appeal) which
states: 'But if we examine the sketch Exhibit 'E-1' we will nd the land of Pelagio
Torrefranca is outside the land of Roman Lumain enclosed within the black lines.'
And on page 62, 1st Sentence of the 1st Paragraph of the Decision (p. 62, Record
on Appeal) which states: 'Consequently, the land bought by defendant Hipolito
Paraguya from Pelagio Torrefranca is outside the land of Roman Lumain
described in the plan Exhibit 11.' " 9

We nd the contention to be well-taken. Appellees con rmed that said portion G

of Exhibit E-1 which appellant bought from Pelagio Torrefranca is outside the land of
Roman Lumain enclosed with black lines of Exhibit E-1, and thus is outside the land of
Roman Lumain as described in Exhibit 11. 1 0
Under the second assigned error appellant points out that appellee Consolacion
Lumain is the legitimate child of spouses Anastacio Mamburao and Trinidad Montilde
as she was born on September 12, 1924, 192 days after the marriage of said spouses
citing the provision of Article 255 of the Civil Code (then Article 108 of the Spanish Civil
Code) —
"ART. 255. Children born after one hundred and eighty days following
the celebration of the marriage and before three hundred days following its
dissolution or the separation of the spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other than that of
the physical impossibility of the husband's having access to his wife within the
rst one hundred and twenty days of the three hundred which preceded the birth
of the child.
This physical impossibility may be caused:

(1) By the impotence of the husband;

(2) By the fact that the husband and wife were living separately, in
such a way that access was not possible;

(3) By the serious illness of the husband."

Appellant further argues there is no evidence of physical impossibility on the part of

husband Anastacio to have access to his wife Trinidad in the rst 120 days of the 300
days which preceded the birth of the child. Under Article 115 of the Spanish Civil Code,
now Article 265 of the Civil Code, it is provided that: cdrep

"The liation of legitimate children is proved by the record of birth

appearing in the Civil Register, or by an authentic document or a nal judgment."
(Italics supplied.)

Appellant concludes appellee Consolacion is the legitimate child of said

Mamburao spouses as shown by the birth certificate. 1 1
Appellant also avers that the declarations of Trinidad Montilde against the
legitimacy of appellee Consolacion cannot prevail over the presumption of legitimacy
under the provisions of Article 109 of the Spanish Civil Code, now Article 256 of the
Civil Code.
However, the Court nds it unnecessary to determine the paternity of appellee
Consolacion in this case. In the last will and testament of Fr. Lumain he not only
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 acknowledged appellee Consolacion as his natural daughter but designated her as his
only heir. Said will was duly probated in Court. As Fr. Lumain died without any
compulsory heir, appellee Consolacion is therefore his lawful heir as duly instituted in
his will. 1 2 One who has no compulsory heirs may dispose by will of all his estate or any
part of it in favor of any person having capacity to succeed. 1 3
The third assigned error wherein appellant contends appellee should pay him
moral damages is obviously without merit. Appellee merely pursued an honest claim to
the property in question. No bad faith had been imputed nor had the alleged damages
suffered been established. The essential ingredient of moral damages is proof of bad
faith and the fact that moral damages was suffered as shock, mental anguish, or
anxiety although the amount of damages suffered need not be shown. 1 4
WHEREFORE, with the only modi cation that portion G of sketch Exhibit E-1 and
its improvement of the questioned property is hereby declared to be owned by
appellant who is entitled to its possession, the judgment appealed from is hereby
AFFIRMED in all other respects without pronouncement as to costs.
SO ORDERED.
Yap (Chairman), Narvasa, Melencio-Herrera, Cruz and Sarmiento, JJ., concur.
Feliciano, J., on leave.

Footnotes

1. Exhibit 2.
2. Exhibit 1, TSN, Dec. 22, 1955, pp. 15-28.

3. Exhibits A & A-1.

4. Exhibit A-2.

5. Pp. 68-70, Record on Appeal, p. 34, Rollo.

6. Pp. 1-2, Appellant's Brief, p. 55, Rollo.

7. Pp. 73-84, Rollo.

8. Pp. 47-68, Record on Appeal.

9. Pp. 6-7, Appellant's Brief; p. 55, Rollo.

10. P. 3, Appellant's Brief; p. 65, Rollo.

11. P. 3, Appellant's Brief; p. 65, Rollo.

12. Articles 840 and 842, Civil Code.

13. Supra.
14. Articles 2217 and 2220, Civil Code; Silva v. Peralta, 110 Phil. 57; Strebel v.
Figueras, 96 Phil. 321; Lopez v. PANAM, 16 SCRA 431; Darang v. Belizar, 19 SCRA
214.

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