The spouses Apolinario Cedeno and Roberta Montesa acquired during their marriage a piece of land, apparently of an area of 2 cavanes of co upon which they had planted fruit  trees.  Apolinario Cedeno  died in 189 and Roberta Montesa in 1909.  It is alleged that during the lifetime of t spouses, from 1886 to April, 1909, on which latter date Roberta Montesa d Andres Candia was holding and cultivating the said land, but that, as sta in the complaint, he did so merely under a lease  and  paid the said  spo one hundred pesos semiannually; that, from May, 1909,  he refused to pay the emphyteutic rent for the cultivation  of the land, appropriated  the and claimed ownership thereof; and that  he also took possession of  four mares, twelve carabaos, and several pieces of furniture which were in the erected on  the said land  a house worth  50 pesos  which he also  seiz and claimed as his property. Apolinario Cedeno had three brothers and one sister, Macario, Domingo,  Leon, and Cristeta, of whom only the last ment is living. Macario left five children, among them Tomas Cedeno;  Domingo, same  number,  among  them a daughter named Sofia, who died leaving a son,  Manuel Sarita; and Leon, four, among them, Gregorio Cedeno.   All o these except Gregorio Cedeno and his brothers sue for the ownership of the land and the other personal property  of Andres Candia which, together with the fruits thereof, they requested the Court of First Instance of Cebu to sentence the latter to return to them and, further, that he indemnify the the amount of P800, and  pay the costs.

Andres Candia, a nephew of Roberta Montesa as the son of her sister, testified that he had been brought up, from the time he was very young, i the house  of the spouses Cedeno and Montesa; that he  worked on the house which those spouses left at their death when  it was under construction and, from his boyhood, assisted in the cultivation of the land;  that sai Apolonio Cedefio, otherwise known as Isidario  Cedeno, was a cabeza de barangay of the  pueblo  of Sibonga, who, in order  to  pay  certain shortages of the cabeceria under his charge, on the 24th of June, sold the said land to Juan Basa Villarrosa, who held it in quiet and peac possession for twenty-four years and at his death such possession was continued by his sons, Sinforoso and Vicente Villarrosa, from whom witnes Andres Candia, acquired the property by purchase; that at no time did he hold the same as a lessee nor pay  for it any emphyteutic rent whatever; and that he never had in his possession the animals mentioned in the complaint.

The court absolved the defendant from the complaint, on the grounds that, with regard to the animals and real property sued for, there was no proof whatever that they were in the possession of the spouses at the time of t death, and, with respect to  the land:  (1)  That the defendant was the possessor in good faith continuously and was presumed to hold under just so long as the contrary should not be proved; and (2) that neither the plaintiffs nor their alleged predecessors in interest made demand for it the period of twenty-six years, since the ownership thereof was conveyed Isidario or Apolinario Cedeno to Juan  Basa Villarrosa,  on the 24th of J 1881, it being evident that during this very long period  of time  they d obtain possession of the property.

The judgment having been appealed through a bill of exceptions and the appeal having been heard, we determine: With respect to the  personal property, that the opinion of the trial court is unchangeable, as, in thi it has not been impugned as erroneous on appeal, and is certainly in acco with the merits of the case; and, as  concerns the land, (1) that  this a one for the recovery of possession from the present possessor, and, in or to bring it, the plaintiffs make use of hereditary right, by styling them heirs of Apolinario Cedeno; (2) that the plaintiffs are, on the one side; Cedeno, who is a sister of the deceased Apolinario  Cedeno, on another, some nephews and nieces of the latter, his brother Macario's children; an the other, some children of Domingo Cedeno, among them, Manuel Sarita, th principal plaintiff, in representation of his deceased mother, Sofia, als daughter of Domingo Cedeno;  (3)  that they assert  their hereditary right an intestate succession, and that the land in question was the community property of the deceased  spouses, Cedeno  and Montesa,  as  established hypothetically, especially by  the plaintiffs' witnesses, Estanislao Sola Irineo Tormis; (4) that, such being the case, they could demand, as the legitimate heirs of Apolinario  Cedeno, only one-half of the land, but no other half which belonged to Roberta Montesa, of whom they are not heirs ab intestato, from the  fact that they are collateral relatives of this w husband: so that the claim to all the land is manifestly unfounded; (5) t moreover, it is manifestly unfounded in so much as Sofia's son, Manuel  S in representation of  his mother, could not act as a plaintiff, nor could Sofia, do so by representing her father, Domingo; on  the hypothesis that right  of representation in the collateral line  can only take place in f the children of brothers or sisters (Civil Code, art. 925, par. 2), and t Manuel Sarita is not a child of a brother, as are the children of Macario Domingo  Cedeno; and;  finally, that it was  manifestly imprudent also to include as plaintiffs Gregorio, Lorenzo, Abundio  and Jose, the children Cedeno, a brother of the deceased Apolinario  Cedeno, when, as the first them  testified,  they  did  not attempt  to take part in this litigation 

"Judge. Is  Mr. Sevilla your attorney? 

"Witness.  No, sir. 

"Q. Have you employed him? - A. No. 

"Q. Have you spoken to him about this case? - A. No, sir. 

"Q. So, then, you were never in Mr. Sevilla's  office? - A. I do not kno
    it is. 

"Q. Have you authorized this action against Andres Candia? - A. No, sir.

"Q. Have your brothers, Lorenzo, Juan, and the others, done so? - A. The
    have  not. 

"Q. So that in this suit neither you nor your brothers now have any claim
    against Andres Candia? - A. No."

Elsewhere this same witness said: 

"My uncles and cousins spoke to me about the institution of this suit; I them that it could not be, because the land was purchased by Juan Villarrosa at the time that our deceased  uncle  found himself  obliged cover certain shortages against him in  the cabeceria; it was then that sold the land."

In view of the foregoing considerations, we decide, with respect to the exercise of the hereditary right derived from the  intestate succession Apolinario Cedeno:

First. That Manuel Sarita, the principal plaintiff, in whose house, accused Exhibit D, there was drawn up at his request the engagement of all the plaintiffs to  confide the suit to the attorney who has conducted it, h absolutely no such right, because  he cannot represent his grandfather Domingo, since, as aforesaid, in the collateral line the right of represent can only take  place  in favor  of  the children of brothers or  sister not in favor of the grandson of a brother, such as is  the said Manuel Sarita, the son of Sofia Cedeno who,  in turn, was the daughter of Domingo Cedeno.

Second.  That, on  the  hypothesis that such  hereditary right derived the intestate succession of  Apolinario Cedeno, does exist,  it could o exercised by Cristeta Cedeno, the children of Macario Gedeno, and those Domingo Cedeno, but not by  Manuel Sarita, because in inheritances the nearer relative excludes the more  remote, excepting the right of representation in proper cases (Civil Code, art. 921); from which it is that, in pushing forward Cristeta Cedeno, the children of Macario Cedef and those of Domingo Cedeno, to exercise such a hereditary right, it sh have been noticed that the personality of these parties as the nearest relatives excluded that of Manuel Sarita, the son of Sofia Cedeno, of a more remote degree.

Third. That, on the same hypothesis, in the eyes of the law no meaning whatever could be given to the document, Exhibit H of the plaintiffs, wherein it is made to appear that the widow of Apolinario Cedefio, Roberta Montesa, implored of the heirs of her deceased husband that she be allowed  to continue in  the possession of the land and the house of the family; inasmuch as, as co-owner of such property, she was entitled one-half of it and, besides, had a right of usufruct to one-half of the other half of the same, pursuant to the provisions of articles 837  and of the Civil Code, and until she was satisfied for her part of usufruction half of the  other half remained liable for the payment of such part of usufruct.  (Civil Code, art. 838.)

Fourth. The hypothesis disappears from the moment that it is proved that at the death of such alleged predecessor in interest  in the  inheritance land  in  question  was not owned by him, it having been transferred in 1881, according to  a conclusion established by the trial  judge.   The the action for the recovery of possession, derived from such alleged inheritance, cannot exist.

This transfer of the  land  affected by Isidario or Apolinario Cedeno w originally the title alleged by the defendant  a title which must not presumed in the present case, but proved.  It is true that the  possess the capacity of owner, has in his favor the legal presumption that he h under lawful title  and cannot be  compelled  to exhibit it (Civil Code 446) ; but it is  also true  that when the defendant agrees with the plaintiffs that the thing demanded belonged to a determinate person during his lifetime from  whom  these latter claim to derive their right existence is thereby admitted of a right of ownership opposed  to that the present possessor,  and hence logically the necessity for the latte prove his title and exhibit it,  in order to destroy the contrary presure in favor of that prior ownership.

The defendant, according to the finding of the trial judge, has proved he has such a title, by the exhibition  of three, documents:  one, of sale by  Isidario or  Apolinario Cedeno to Juan Basa Villarrosa  (Exhib another, of the sale with pacto de retro by the latter's son, Si Villarrosa,  to the defendant  (Exhibit 3);  and the other,          of final sale by the other son, Vicente Villarrosa, to the same party, And Candia (Exhibit 4).

Against this finding of the lower court, the appellants allege: 1. That Cedeno, the vendor, has nothing to do  with  Apolinario  Cedeno,  his predecessor in interest; and, 2. That the land in Talamban known as tha Juan Basa Villarrosa is  about 15  or 20  prazas distant from the land Talamban which is concerned in this litigation.

But the finding impugned is in no wise erroneous.  Tomas Cedeno,  one o the plaintiffs, testified that his uncle Apolinario had the baptismal o Christian name of Isidario, was better known by the nickname of Adiot, was the only cabeza de barangay in Sibonga with the surname of Cedeno. Domingo Cedeno, who was erroneously made to appear as a plaintiff, said that the original owner of the land in question was "his deceased uncle Isidario Cedeno," and that  Isidario was the true name.  The averment of the appellants that "the finding of the court is  precisely contrary agreement made by both  parties" (brief, 8) is in all  respects  incorrect the said  agreement, they say, no other name than that of Apolinario wa recorded and admitted to be the name of the plaintiffs, predecessor in interest.  By that same agreement the defendant could not be heard to prove another so different name as that of Isidario for the purpose of confusing it with that of Apolinario   *  *   *"   (brief, 8).  The agr only says: "By agreement between the attorneys for both parties, the complaint in this case is understood to be amended in the sense that th name of Apolonio Gedeno,  which occurs in the first  line of the first paragraph of the complaint, is substituted for the name of  Apolinario Cedeno; it being agreed that the amended answer which the court has just admitted refers to the complaint so amended."  The only point that appears  to be agreed upon is that  where the plaintiffs say in their complaint Apolonio, the same shall be read Apolinario;  but it was not agreed that the party Apolinario might not be known by any other name than that of Apolinarlo, nor that the defendant should not try to prove another name as that of Isidario.

It is also in all respects inexact that the land in Talamban, the subject of the complaint, which formerly belonged to Apolinario Cedeno, is diff from the land in Talamban which the defendant claims  was sold by Isidario Cedeno to Juan Basa Villarrosa:   The complaint says: "Boundar On the  north, by  Calixto Nejarda; on the south, by the river called Grande and Alejandro Mirafuentes; on the east, by the same river, Grand and on the west, by a large rock." Defendant's Exhibit 2 says: "Bounded the north by Calixto Nejarda; on the east by Calixto Nejarda; on the so by Alejandro  Mirafuentes; and on the west  by Miguel  and  a  large rock."  The plaintiffs' witnesses, Solano and Cuestas, and the plaintif themselves, Sarita and Tomas Cedeno, designate  the same boundaries as does the defendant, giving also as the eastern boundary, besides  the Calixto  Nejarda  *  *  *.  The interposition of "Miguel" as being on t west, written in other documents  as on the south, is perfectly explain the defendant: It refers to Miguel Calixto who  broke up the ground between the large rock and the land in dispute; and so it is that in subsequent documents it also appears as the western boundary.

For the preceding reasons, the judgment appealed from is affirmed,  wit the  costs of this  instance against  the appellants.

Torres, Mapa, Johnson, Carson, and Trent, JJ.. concur.