The parties to this suit admit that the land, the recovery of the possession of which the plaintiffs endeavor to  obtain, belonged to Jose Velasquez,  the  latter's father,  until the year 1897; that in that year the said Velasquez was married, in second wedlock, to Maria  Soratos to whom  he gave the said land in dowry by a private document which the plaintiffs signed in proof of their assent  to the  creation of the said dowry in favor of their stepmother,  Maria Soratos; and, that the latter,  after Velasquez' death,  sold the land aforementioned, in the year 1904, to the herein defendant who has been in possession thereof  ever since, under such a title, as owner.

In view of these facts the court decided the case in favor of the plaintiffs, on the ground that the gift of the land as a dowry, to Maria Soratos, made as it was by a private document,  was  entirely null  and void  in law,  for which reason it could not convey the ownership of  the said land to Maria Soratos  who, consequently,  could  not transfer the same, by contract of purchase and  sale,  to  the herein defendant.

This conclusion of the court is entirely  in accord  with the  law and should  be affirmed.   The legal  provisions relative to the necessity of the execution of a  public instrument to  impart validity to the creation of  a  dowry when, as in the present case, it consists of real property, are  clear and precise.

Article 1338 of the Civil Code prescribes as  follows:

"The parents and relatives of the spouses and the persons not belonging to the family may create the dowry in favor of the wife,  either before or after  the celebration of the marriage.

"The husband may also  create it before the marriage, but not after it."

"A dowry  created," textually says article 1339, "before or at the time of the celebration of the marriage shall be governed in all that is not provided  in this chapter by the rules for gifts made in  consideration thereof."

And these  gifts, that is to say, those made by reason of the marriage or in  consideration  thereof, are  governed, according to  article 1328, by the rules established in title 2 of book 3, among which is found the provisions of article 633, the literal tenor of which is, in part, as follows:

"In order that a gift of real property may be valid it  shall be made in a public instrument, stating therein in detail the property bestowed as a gift and  the  amount  of the charges which the done must satisfy."

This last provision being applicable in the matter of the dowry herein concerned, it is  evident  that, pursuant to articles 1339 and 1328, cited above, the creation of the said dowry is null and void because it was not made in a public instrument, prescribed  by law  as a necessary and indispensable requisite for its validity.

The appellant  maintains  that the  execution of a public instrument is not necessary for the creation of a dowry, except in the case where it is intended to enforce it against a third  person, and, in support  of this theory, he cites article 1280 of the Civil Code, which provides as follows:

"The following must appear in a public instrument:

*       *       *      *       *       *       *

"3. Marriage contracts, and the creation and increase of dowries, whenever  it is  intended  to  enforce them  against third persons."

From  this the appellant makes the deduction that  the creation  of a dowry is valid and effective among the same parties who  intervened  therein, without need of a public instrument.  As  may be seen, the appellant's argument is based on a mere inference, and not on the language of the law.  Opposed to this inference, there are categorical and definite legal provisions which destroy it completely.  Thus, for example, with respect to marriage contracts, there is article 1321 of the Civil  Code, which  prescribes that "marriage contracts  and modifications  made  therein must  be contained in a public instrument executed before the celebration of the marriage."

Explaining the meaning and scope of this article, Manresa, in  his  Commentaries on  the  Civil Code,  says  that "marriage  contracts contained in private documents have no force whatever, either between the parties or as regards third parties"  *  *  *   "It is not enough, then," he adds in another part of  the same Commentaries, "that  the act be recorded in writing, even in a public document; a public instrument, executed  before a notary, is  absolutely necessary."

And Mucius  Scsevola says,  in  commenting on the  said article 1280, in  connection with article 1321:

"The deduction appears to be made from the rule of the code that when  it is not intended to enforce the said  contracts (marriage contracts, creation and increase of  dowry) against third persons, the formality of an instrument  may be dispensed with;  but,  aside from the fact that  the expression is absolutely incorrect, because reference was made to the intention, which implies a general protective measure for third parties, we find that article  1321, without  any distinction whatever between  prejudice  and no  prejudice to third persons, directs that marriage contracts and modifications made therein must be contained in a public instrument executed before the celebration of the marriage."

Restricting the discussion to the dowry, it has already been herein before shown that its creation is subject to the rules governing gifts, and that one of these rules, established by article 633 of the Civil Code, requires the execution of a  public instrument to validate the gift of real property and, therefore,  likewise the  creation of  a  dowry when it consists of real  property.

In his commentary on the said article 633,  Manresa  lays down the following:

"The gift of real property is valid only when made by a public instrument.  The framers of the Civil Code did not believe that sufficient force would be given to such  a  gift by article 1280,  according to which,  acts and contracts, the object of which is the transmission of property rights, must appear in  a public  instrument,  because article 633 does not require any  special  formality with which the  contracting parties may compel each other  to  comply,  when once they have validly bound themselves  to fulfill the obligation (article 1279), but the validity of the gift is made to depend upon that formality."

The same author, in another part of his work, says:

"Article 633 provides, in order that a gift of real property may be valid, that it must be made by a public  instrument       *   *   *   It  can not be  denied  that the law  requires a public instrument as a necessary requisite for validity, not as a mere formality or as a probatory document  *   *  *, because if it could  be  dispensed  with and the  parties still be bound, at all events, in any form, the requirement would be ridiculous; a requirement which the law deems necessary for validity could be dispensed with, or,  what amounts to the same thing, there would be no such necessity, nor would the instrument have any bearing whatever in  the matter of the origin and force of the obligation  *  *  *.  It is not a question of form (he concludes), it is a question of substance."

To the same extent that a public instrument  is required for the validity  of  a gift, it is necessary for the creation of a dowry consisting of real property, even for those who execute it.

It is also maintained by the appellant that the plaintiffs are barred from challenging the validity of the  creation of the dowry here  in question,  on account  of their having consented to its  creation and taken a direct part therein by  signing the  instrument in which  a  record  was  made of the conveyance  of the  land as  a dowry to  their stepmother, Maria Soratos; but,  as the judge well  says in  the judgment appealed  from, an  instrument creates no impediment when  it  is  a violation of a  positive  requirement established with reference to its  validity and the  form of its execution. This doctrine  is recognized   as true by the appellant himself;  he says in his brief that "it is true that no impediment exists in an instrument when the instrument  is  null and  void."  And  the  private document subscribed by the plaintiffs, considered as an instrument of dowry, is in fact null, void, and ineffective.

The judgment  appealed from  is affirmed, with the costs of this instance  against the appellant.  So ordered.

Arellano, C. J., Torres and Johnson, JJ., concur.

Carson  and Moreland, JJ., dissent.