Núñez v. Heirs of Rivera

19 P.R. 701

Opinion

Me. Justice Wole

delivered the opinion of the court,

The judgment in this case must be affirmed principally on the ground that prescription has run in favor of the defendant, Isabel Núñez Rivera. Numerous other persons were made defendants in this case, but as Isabel Núñez Rivera is in possession of the property in litigation claiming it as her own, and as she is alleged to be the person who holds adversely to the claims of the complainants, no other defendants need be considered.

Gonzalo Núñez Rivera and Matilde Núñez Aguayo are the complainants in this case and each is an heir of Juan Basilio Núñez y Urquizn although by different mothers. Their father was married twice. From 1842 to 1863 the said Juan Basilio Núñez was in possession of the property, Isleta, composed of 430 acres, with the consent of Francisco Stewart, the real owner, who on October 8, 1863, sold the property to the said father of the complainants. Of this property Juan Basilio Núñez sold to others two portions of land consisting of 88 and 135 acres respectively. He died testate in Jersey City, New Jersey, in April, 1892, and named as Ms sole heirs the persons who would have naturally been entitled to inherit, namely, the children of both marriages and his second wife. Isabel Núñez Eivera was one of the daughters of Jnan Basilio Núñez by his first wife.

These facts appear in substance from the first 13 paragraphs of the complaint. The remaining paragraphs thereof are as follows:

“14. That the acquisition by the defendant, Isabel Núñez y Rivera, sprang from an entirely different source, viz., from one Manuel Saturnino Rivera who had absolutely no title of ownership and who neither had nor derived any right to the property claimed, ‘Isleta,’ under or by virtue of the title of the lawful owner, Juan Basilio Núñez. And your petitioners further allege that Manuel Saturnino Rivera, in order to obtain an ostensible though fictitious title to the said property, ‘Isleta,’ based on absolutely no grounds of ownership, sold and conveyed to María Engracia Náter by public deed dated June 30, 1869, 147 cuerdas of the aforesaid property for a fictitious cash consideration of $14, without possessing any real or effective right of ownership or possession. The said María Engracia Náter in turn conveyed the same to José Dolores Infante y Santana under deed of conveyance dated August 12, 1880, and the latter shortly after reconveyed them under deed dated August 24, 1880, to the said María Engracia Náter, who transferred 87 or 90 cuerdas thereof a short time thereafter to her grandchild, Isabel Núñez Rivera, the defendant herein, by deed of November 7, 1881.

“15. That the eldest of the coheirs, Isabel Núñez y Rivera, entered into possession of the aforesaid property, ‘Isleta,’ — that is to say, of the portion thereof which originally consisted of 147 cuerdas, in the name and right of her putative father, and of his family during his absence in the United States, in the year 1885, and has remained in possession up to the death of her father and ancestor, Núñez Ur-quizu, in New York in-1892, since which date she has unlawfully held and retained possession of an area reduced to 87 or 90 cuerdas, depriving her brothers and coheirs from the enjoyment or benefit thereof without allowing them any share in the property or in the proceeds thereof. Of the said piece or portion of the said property, ‘Isleta,’ withheld by María Engracia Náter and Isabel Núñez Rivera, the following lot is recorded in the registry of property in favor of the latter:

“ ‘1. Rural. A piece of land segregated from another and larger piece described as follows: Situated in the ward of Juan Sánchez at the place known as “Isleta” of the jurisdiction of Bayamón. It consists of from 87 to 90 cuerdas, more or less. It is bounded on the north by the town of Bayamón; on the south by property of Fernando Segundo Montilla; on the west by property of Cándido Cobián; and on the east by that belonging to the Succession of Morales and of the aforesaid Montillar. From north to south the said property crosses the road leading to Guainabo and from east to west a part of another road which leads to Rio Hondo. On the said property there is a frame dwelling house of one story with zinc roofing.’

“16. That neither Juan Basilio Núñez Urquizu, Ms first nor second wife, nor his heirs, the plaintiffs herein, have executed any deed or conveyance of any class whatsoever, nor have they agreed so to do, in favor of Manuel Saturnino Rivera or of any of the defendants of the before-described property, ‘Isleta,’ either in whole or in part.

“17. That the 87 or 90 cuerdas 'of the said property, ‘Isleta,’ withheld by Isabel Núñez y Rivera, are estimated to have yielded an average annual return amounting to $90 monthly, and the remainder $80 monthly.

“18. That the plaintiff, Gonzalo Núñez y Rivera, left this Island during his minority without being cognizant of the foregoing particulars, and returned to Porto Rico about the end of the year 1909.

“19. That Amalia Aguayo y Canales, the second wife of Juan Basilio Núñez Urquizu, died in Bayamón on November 26, 1898, her only daughter, the petitioner Matilde Núñez y Aguayo, inheriting all her rights.

“20. That on various occasions during the month of April, 1890, and during the year of 1910 and from the year 1890 to date, the defendants have acknowledged expressly and impliedly at times, and expressly on other occasions, that the plaintiffs are entitled to their inherited undivided shares in the 147 cuerdas forming part and comprising the remainder of the property, ‘Isleta,’ and described in the fifteenth paragraph of this complaint.

“21. That the heirs of Josefa Rosenda Núñez Rivera, namely Herminio, Isabel, Mercedes, and Belén Padial Núñez, appear in this action as defendants on account of their refusal to' come in as party plaintiffs.

“Wherefore, the plaintiffs pray that this honorable court in due course render final judgment ordering the defendants to proceed to the legal partition and division of the said inherited estate, ‘Isleta,’ described and referred to in paragraphs 14 and 15 of this complaint, decreeing the restitution or delivery to your petitioners of the ownership interests or the parts thereof that may pertain to them under the law, or in lieu of same, their value in currency, together with the proper share of all classes of proceeds arising, or that could have arisen, since the year 1885, the amount of which to be determined by experts up to the time of the restitution, as well as the costs and disbursements of this action.”

Isabel Núñez Rivera on answering the complaint denied the averments of the same that .militated against her and set up two defenses. The first of these defenses was that the action, being a personal one, had prescribed by reason of section 1865 of the Civil Code, more than 15 years having elapsed, and as a second defense, the acquisition of a title by ordinary prescription in virtue -of section 1858 of the Civil Code.

_ If paragraph 14 of the complaint be examined, it will be seen that, standing alone, it admits that in its origin the acquisition of the property was a just and sufficient one, in the absence of bad faith, upon which to found, with the necessary lapse of time, a title by ordinary prescription, a defense alleged by the defendant. In such paragraph Isabel Núñez Rivera appears to have derived a title from Manuel Saturnino Rivera and, ultimately, from her grandmother, María Engracia Náter; while paragraph 14 of the complaint avers that Manuel Saturnino absolutely lacked a title and that María Engracia Náter paid a fictitious sum for such property, there is no charge in that paragraph of lack of good faith against the defendant, Isabel Núñez Rivera. Indeed, there is no charge of bad faith against María Engracia Náter other than that the price of her purchase from Rivera was fictitious, an averment entirely consistent with the payment of a valuable consideration and, bence, of good faith on her part.

As good faith is always presumed, where a complainant admits a just title in the 'defendant or his predecessors in title and also admits the necessary lapse of time to found the title by prescription, the lack of good faith must be alleged and the burden of proving it is cast on such complainant, supposing’ always that the defendant is relying on a title by prescription. The only averment of bad faith is contained in the fifteenth paragraph of the complaint.

Under this state of the facts the complainant would have been bound to prove that Isabel Núñez Eivera took possession of 147 acres of land belonging to the property Isleta at the instance and in the name of her legitimate father and his family from the time of his absence in the United States since 1885 and thenceforward. The facts of the trial were quite otherwise. Isabel Núñez Eivera acquired her property in 1881 and recorded her rights in the registry of property. There was no satisfactory proof, if any at all, that the defendant knew that her father ever owned the property in question. Her grandmother, María Engracia Náter, lived on the property with the full knowledge of Juan Basilio Nú-ñez, the son-in-law of the said María Engracia Náter. As we have indicated before, the fact that there was a false recital of the purchase price would not prove the bad faith of Maria Engracia Náter. In one of the subsequent deeds in the chain of titles of the defendant the fact of the true consideration between the parties was stated, but even if the consideration was a false one, it would not prejudice the defendant, Isabel Núñez Eivera.

There was some effort at the trial to show that rents were received by Isabel Núñez Eivera, but the proof only tended to show that Fidel Gfuillermety collected the rents and transmitted them to'Josefa Núñez Eivera, a sister. There was no proof that Isabel Núñez Eivera took charge of the land in the name and at the instance of her father or his family.

It will be noticed that in paragraph 20 of the complaint it is charged that the defendants have acknowledged the hereditary shares of the complainants in'the property Isleta. The only proof tending to show snch claim is evidence that Gonzalo Núñez, in 1890, renounced all his rights in the small part of the inheritance of his parents in favor of the heirs of Josefa Núñez Eivera. We agree with the appellants that this renunciation was not binding on Gonzalo Núñez because of the lack of the necessary legal conditions, but on the other hand the acceptance of this renunciation on the part of the heirs of Josef a, Núñez Eivera was not binding on Isabel Núñez Eivera and, furthermore, no reference was made in this renunciation to any specific property. There is no proof that Isabel Núñez Eivera ever acknowledged the proprietorship of the complainants or either of them.

The court below seems to incline to the opinion that Isabel Núñez Eivera showed a good title in herself without rely-, ing on the question of prescription, and we are likewise' inclined to think so. The deed of Manuel Saturnino Eivera was executed in 1869 and this trial was begun in 1911, consequently more than 40 years have elapsed since the alienation from Manuel Saturnino Eivera to María Engra-cia Náter. María Engracia Náter was in possession of the finca apparently claiming its ownership. The deed to her rh-citfed that Manuel Saturnino Eivera acquired the property from Juan Basilio Núñez. After' this lapse of time the presumption would be in favor of the correct recital in the deed, and subdivision 33 of section 102 of the Law of Evidence says that a document or writing more than 30 years old is genuine, when the same has since been generally acted upon as genuine by persons having an interest in the question, and its custody has been satisfactorily explained. The document in question is more than 30 years old and its possession antedates the possession of Isabel Núñez Eivera in 1881. We think that the defendant made out a good presumptive title to tlie property in question and that such presumptive title was not destroyed by the proof of the complainant.

It becomes unnecessary to consider the other defense in regard to the prescription of the action.

The judgment must be affirmed.

Affirmed.

Chief Justice Hernández and Justices del Toro and Aldrey concurred. Mr. Justice MacLeary did not take part in the decision of this case.