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.

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OSTRAND, J.,

For various reasons I find myself unable to concur in the majority opinion. not belonging to the estate and before the expiration of the period of redemption.  In the earlier case  the land  was community property; in the present case, while the land was the property of the deceased husband, the house built thereon was, as we shall presently see, community property, if not the exclusive property of the widow.

The decision in the Alfonso vs.  Natividad case, supra, may or may  not be the best law, but it is not indefensible and  it has stood unchallenged for nearly twenty years.  It must therefore  be considered to have become a rule of property and  should not now be disturbed.  Judicial changes in property  rules are retroactive in effect and therefore particularly objectionable.

2. It also  seems to me that the  court has  adopted an ultra-technical  attitude in attacking  the  validity  of the judgment of  the Court of First Instance in civil case No. 2576.  It may well be conceded that the service of the summons upon the minors was irregular  and precedents  can, perhaps, be found in American jurisprudence for the views expressed in  the majority opinion, but I doubt the wisdom of applying  such precedents here and do not think it is in harmony with the liberal spirit of our Code of Procedure.

There have been, and still are, many lawyers in this country who are not fully familiar with all of the rules of procedure and  if strict  technical criteria are to be applied, there are no doubt many old judgments which may be set aside on purely technical grounds and great injustice  thereby often wrought.  In the case in  question (No. 2576)  there is no indication of fraud or collusion and there can  in the circumstances be  no doubt whatever that the result  would have been the same if separate copies of the  summons had been served on the minors.   If service had been so made, there could have been no question as to the validity of the judgment; the presumption is that the lawyer who appeared for the minors in court was duly authorized and inasmuch as the minors had a legally appointed  guardian, there  was no necessity for appointing a  guardian ad litem.

3.  From the strict interpretation of the law of procedure applied to civil case No. 2576, the court has gone to the opposite extreme in the present case.   The action is brought to recover possession of the property in question, the complaint alleging that the defendant Bonfing had acquired it through fraud and collusion.  The defendant Bonfing, as a special defense, pleads res judicata through the judgment in case No.  2576.  At the trial of the case no effort was made to prove that the former judgment was obtained by fraud nor was it even suggested that the judgment was invalid for irregularity in the service of  the summons, but in a  memorandum filed after the trial, counsel for the plaintiffs  argued  that  the  minors had not  been properly represented  inasmuch  as no guardian ad litem had been appointed.  The court below held that this  fact  had not been alleged and  therefore was not in issue and rendered judgment  in favor of the defendants upon the issues presented  by the pleadings.   On appeal to this  court the plaintiffs reiterate the  argument made in the court below; nowhere in  the briefs is it intimated that the  service  of summons  in case  No.  2576 was  insufficient.

It  appears from the record of case No. 2576, introduced in evidence by the defendant, that the lot  in question, measuring 297 square  meters, was  originally the property  of Mariano Guinto, but that the house thereon was built after his marriage to Camila Abendan  with money furnished by the latter's  mother, now deceased.   Article 1404 of the Civil Code provides that "buildings constructed during the marriage on land belonging to one of  the spouses shall also belong to  the partnership,  but the value of the land shall be paid to the spouse owning the  same."

The house was therefore at least community property if not the exclusive property of the widow.  It is true that she on  the  witness stand stated  that the house was built "to be given to the children," but there was no formal donation  of it  to them, and if so they acquired no title thereto. It is also  true that  in a transfer certificate  of  title from the Cebu burnt area  district to Mariano Guinto, the latter appears as the sole owner  of the land, but the certificate was issued subsequent to the sale of the property to  Lim Bonfing, mentions no improvements, and, moreover, under section 70 of the Land Registration Act  is subject to the rights of Mariano Guinto's widow "incident to the relations as husband and wife."

From what has been said it is clear that the widow Camila Abendan's interest  in the property was much  greater than the mere usufructuary right conceded her in  the majority opinion and it is not disputed that the defendant Lim Bon fing has acquired all  such rights and  interests.  We have no data in the record from which the exact extent of these rights can be definitely determined; it is possible that evidence might have been brought in showing that the widow was the sole owner of the house instead of only a co-owner. It is also possible that the  house is worth more than the 297 square meters of land upon which it is built.  The defendant Lim Bonfing  may have improved the property and be entitled to reimbursement for such improvements.  In regard to none of these  things, have we any  evidence before us.   It will, perhaps, be said that it was the duty of the defendant Lim  Bonfing to  present such evidence, but he met successfully the issues raised by the pleadings and at the trial of  the case and could neither be expected nor required to do more.  Upon the principal  issues raised for the first time by this court on appeal he  has  never had a hearing or his day in court.

Upon the issues presented to the court below, its judgment was correct and should have been affirmed.   If  this court desired to raise  new issues, the case should have been remanded to the court below for a new trial upon such issues.  The irregularity of the procedure adopted by  this court in the present case is not  non-prejudicial, but goes to the merits.