It  appears in this  case  that in the year  1903 Matea Rosales leased to the defendant Florencio Noel the  piece of land  in  litigation  in  this  suit.  The  lessee  immediately erected thereon a camarin  which first served as a tienda for his daughter-in-law and later for a number of Chinamen to whom he sublet it.  Matea Rosales died in the year 1904 and her  niece Filomena  succeeded  her.  The latter on  the 15th  of  February, 1905, sold  to Juan Mercado (through Mateo Mercado),  with the  right to repurchase, a certain parcel of land which  is claimed by the  plaintiff  to have been  all  of the land which she inherited from her aunt Matea, including the portion leased to  the defendant, and by the defendant to have been  only such part of the land so inherited as had not been  so leased.   On  the  21st  of March 1905,  Filomena Rosales by a written instrument transferred to the  defendant the land  which in 1903 had been  leased to him by Matea Rosales.  After these transactions had occurred Filomena  Rosales died intestate and an administrator was  duly  appointed to administer upon her estate.  Sometime during the year 1907 it seems that the plaintiff presented to the commissioners  appointed  to receive  claims against the  estate  of the said  Filomena Rosales, deceased, the debt

which had formed the consideration for the sale  with  the right  to repurchase made  to him  by Matea Rosales, which  claim was duly allowed  as a  valid and subsisting claim against said estate.  From the record  it appears that  to  satisfy  said  claim  it was necessary to sell the land which had formed the  subject matter of said sale with the right  to repurchase and pursuant to such necessity said land was  sold at public sale by the administrator of said estate sometime during the year  1907.  The land  so publicly sold was  purchased  by the plaintiff.  The land advertised and  sold by the administrator was described  as all of  the land of which the said Matea Rosales died seized,  including the land theretofore leased and sold to  Florencio Noel as heretofore mentioned. The  defendant,  on  being notified  of the  attempt of said administrator to sell the parcel of land of which he claimed to be the owner,  entered  a protest to said administrator against such  sale.  Notwithstanding  the protest  the administrator sold or attempted to sell the  land  described, including that belonging  to the  defendant.  The defendant is now in possession  of the land and has  been ever since the execution of the lease in 1903.   This action was commenced by the plaintiff to quiet title to the said land and for a mandatory injunction  prohibiting the defendant from  exercising any rights in relation thereto or of performing any acts in contravention  of the  rights asserted by the plaintiff.   While the prayer for relief does not in terms ask  for the delivery of possession of the land and is not the prayer  usually found in an action of ejectment to test the title to land  and to recover possession  thereof, we, notwithstanding, treat it as such, the parties  having themselves  during the  whole course of the  proceedings acted upon that theory.

Upon the trial  the learned court below found in favor of the plaintiff, declaring that  he was  the owner of the land,  and ordered restitution of  possession, the  defendant to pay the costs of the action.

We are of the opinion that the judgment cannot stand upon  the facts.  Th§ lands of which Matea Rosales died seized are described as  measuring 38 meters and 30 centimeters front and 33 meters and 30 centimeters deep.  The lands which form  the subject matter of the pacto de retro are described as being 30 meters and 48 centimeters front and  30 meters and  88 centimeters deep.  It appearing that the lands in dispute in this litigation are located upon the corner of the lot described as 38 meters and 30 centimeters front, and it appearing that said  lot so claimed by the defendant  would occupy the space which  is indicated by the difference between the description of the lot of which Matea died seized  and  the description of the lot  sold by her to the  plaintiff under pacto de retro,  it is clear  to our minds that the change  in the  description from the original lot to that sold under pacto  de retro indicates a clear intention to exclude from the pacto de retro the lot occupied by the defendant as lessee.  As a matter of fact, the description in the pacto de retro does not cover the lot in litigation.   The plaintiff, relying upon the pacto de retro, must stand  or fall  by its terms reasonably interpreted.  There is no  part of the record from which we could draw  the inference that Matea Rosales in executing the pacto de retro intended to convey more land than was actually described therein.  Neither does it appear from the record that, prior to the  dispute which terminated in this litigation, the plaintiff himself was under the impression or had the belief that he  had  acquired more  land than that  actually described in the instrument which he  accepted.  There being, then, nothing  in  the whole case  from which we  can adjudge that the intention of the  parties was  to deal with  other or  different land than that described  by the instrument which  they executed, we  must construe that instrument according to its terms.   By so doing we exclude the transfer of the  land in litigation from the terms of said instrument. It being clear that the sale with the right  to repurchase was not  intended to include  and did  not include the piece of land  here in litigation, it necessarily follows that  the sale by Filomena Rosales to Florencio Noel, the defendant, of said land was a valid sale and conveyed the ownership of said land.   Therefore, at the time of the sale by  the administrator in the  year 1907, the defendant had been  the owner  and in undisturbed possession of the  land  in  question for  more than two years.  The  sale by the administrator  was not really a sale at all but  merely an attempt to sell  which,  for the reasons we have just presented, was wholly futile.   The administrator, being powerless to  sell the land  in dispute, could convey nothing whatever to plaintiff in this case by virtue of said attempt to sell.

For  these reasons we  hereby reverse the judgment and dismiss the complaint upon the merits.  So ordered.

Arellano, C. J., Mapa, Johnson, Carson, and Trent, JJ., concur.
 
 

---

 

DISSENTING:

TORRES, J.,

I am of the opinion that, upon other grounds, the judgment should be  affirmed.