Under the name of the heirs of Jumero, fifteen persons, as the grandchildren and great grandchildren of  Benedicto Jumero, demand the restitution of a piece of land which is, and has been for the past forty years, in the possession of Jacinto Lizares,  This land  has an area of five hectares and sixty ares, and adjoins on  the north, east,  and  west,  the property of Aniceto Lacson, and on the south, that of Gregoria Vinco.  It  is alleged in the  complaint  that this land belonged to Benedicto Jumero, and that he willed it to his four children, all now deceased as well as the said Jumero, named  Luisa, Felix,  Florentino, and  Pedro, and that  the plaintiffs, grandchildren and great grandchildren, descend from the  three last  mentioned. The only descendant  of Luisa, Gregoria Meruegos,  is not a party to the suit and therefore  appears  as  a defendant together with  Jacinto Lizares.

At the  conclusion of  the  trial,  Florentine's  children, named Anatolio, Hilaria, and Felisa, having testified as witnesses for the defendant, Lizares, in opposition to the allegations of the complaint, were  likewise therein  included as defendants, by an amendment authorized by the court.  So that, of the heirs of Benedicto Jumero, the descendant of one entire branch, Luisa, and three of those of another branch, that of Florentino, impugned the complaint and take no part in the claim for the restitution of the land of  their common predecessor in interest.

The following facts are admitted: First, that all the heirs named Jumero are actually the descendants of Benedicto Jumero; second, that the  land, which is  the subject of the suit, passed into the possession of Jacinto  Lizares,. for the sum of 50 pesos, about forty years before; and third, that the reason for this  transfer was  the fact that Nicolas Jumero, a son of Felix, was drafted for the army, and to secure His release from the military service, or to pay the attorney who was to negotiate the release, the 50 pesos were required.

The whole question involved is whether the 50 pesos were received as a mortgage loan, as the plaintiffs claim, or as the price of sale, as maintained from the beginning by the defendants, Jacinto Lizares and  Gregoria Meruegos,  and subsequently by Anatolio, Hilaria, and Felisa Jumero, the latter  represented  by her husband, Basilio Alferio.  The plaintiffs claim that the land was delivered  under mortgage in order that Lizares might have the usufruct until it should be redeemed through the payment of  the  50 pesos.  The defendants assert that the land was sold outright to Lizares for the price of 50 pesos.

The Court of First Instance of Occidental Negros decided the case in favor of the defendants and absolved them from the complaint.   The plaintiffs appealed.

Having forwarded a  bill of exceptions,  with a right to a revision  of the evidence, two errors are alleged in this instance against the judgment of the lower court.

First.  For having admitted, notwithstanding the objection of  the  plaintiffs,  the testimony  introduced by  the appellees relative to the purchase of the land in question by Jacinto Lizares.

Second.  Because  the trial judge entertained doubt  as to the character of the contract,  by virtue of which  the defendant, Jacinto Lizares, possesses the land in question, and  because,  by reason of this  doubt,  he  absolved  the defendants, and did not declare that there was a preponderance of evidence in favor of the plaintiff appellants.

With respect to the first assignment of error, it is alleged that, as the question involves the purchase of real estate, the testimony of witnesses is not admissible, and that at the time the land in question was supposed to  have been purchased, the laws  of the Partidas were in force,  and,  in accordance with law 6,  title 5, of the 5th Partida, it was necessary for the validity of the contract that the sale  be made by a public instrument.  The law cited provides that the  purchase  and sale may be made in  two ways - by a public instrument, and without one.  The first is when the vendee says to the vendor: "I wish that a document of sale be made."  Such a sale, although the vendee and the vendor a!gree on the price, is not completed until the instrument is made and executed, because, before that is done, one or the other  may repent.   The sale may be made  without an instrument when the vendee and the vendor both agree upon the price thereof and exchange the thing for the price, without mentioning  the instrument.

The first assignment of error is  therefore without foundation.  In accordance with the legislation of the Partidas, patterned after  the Roman Law, the contract of purchase and  sale is eminently consensual  and, consequently, only requires consent for its perfection.   In order that an instrument be  necessary, it was required that this  form should also  be the subject of consent and  that the validity of the contract  be made dependent thereon: I wish a bill of sale to be made of the thing sold, was what the vendee should say to the vendor, according to the law cited, in order that he might not be bound until  after the execution of the instrument.

As to the second assignment of error, it is true that the trial judge  while in doubt, and by reason of his doubt, which still  existed after weighing the contradictory  testimony, decided the suit  in favor of the defendant.  In so doing, he committed no error whatever, but, on the contrary, complied with the second paragraph  of  article 6 of the Civil Code, which provides:

"When there is no law exactly applicable to the point in controversy, the  customs of the place shall be observed, and, in the absence thereof, the general principles of law."

And it is a general principle of law that, in case of doubt, the condition of he who possesses is the better one.  The defendant in whose favor the  doubt was  decided  is  the possessor.

But, in reality, it was not  a case of doubt, neither with respect to the law nor the facts adduced by the witnesses, whose  testimony,  rationally  weighed, does not show  an evident preponderance of proof in favor of the plaintiffs, but all to the contrary.

By law, in conformity with article 448 of  the Civil Code, this case  could not but be decided in favor of the defendant.

"The possessor by virtue of ownership has in his favor the legal presumption  that he  holds  possession by  reason of  a sufficient title and he  can not be  forced  to show  it."

The defendant, Lizares, who  has  possessed the land in litigation for forty years, alleges that he is in  possession thereof by virtue of a title of purchase and sale, which is a title of transfer of ownership; he is,  consequently,  the possessor under title of ownership, and, in conformity with the law, he has in his favor the legal presumption that he possesses the land under sufficient title and he can not be obliged to  produce it.  A purchase verbally  made gives a perfect title which, with the occupation or possession of the  thing, confers ownership upon the  possessor, provided  that  he holds himself out as its owner, until it be proved that he is not.  It was incumbent upon  the plaintiffs to prove a character distinct from that of owner, and only then could they compel  the  defendant to prove  (rather than  to show,  as very properly observes the learned commentator, Manresa) the title which  actually confers  upon him  the status  of owner.  But the plaintiffs  were unable to prove a character distinct from that of owner, by due and sufficient proof of a title under mortgage,  or that of antichresis, which  latter was certainly unknown in the  Philippine Islands before the ¦publication of the Civil Code, except in  exceedingly rare cases of pretorian pledges judicially established and approved - and this they  were unable to do, for the reason that, as established  at the trial, no  instrument whatever was executed of the alleged mortgage or of Such an antichresis;  and, at all times, at least since the promulgation of  the Civil Code, the  mortgage and the antichresis, as restrictions of ownership, must necessarily be recorded in writing,  under the first  paragraph of rule 4 of the transitory provisions of the Civil Code, in connection with articles 1875, 1279, and 1280.

On these  grounds  alone,  the judgment  appealed from should be affirmed.  But conceding, for a moment, some value to  the testimony taken, and on the hypothesis that it were necessary to  consider it  critically and reasonably in order to  reach a conviction beyond all doubt, by a preponderance of evidence offered by  one of the litigating parties, even then, and in such a case, this preponderance could not be admitted in favor of the plaintiffs.

The following witnesses testified for the plaintiffs:  Dionisio Acodo,  as to the delivery  of the 50 pesos under security  of the land; Gregoria Vinco, Romualda Jumero,  and Cosme Jumero,  to the  effect  that,  twenty years  before, according to the first two, and two years before, according to the last, the  defendant, Jacinto Lizares,  had negotiated with their predecessors in interest, Felix Jumero and Pedro Jumero,  respectively, for the conversion of the mortgage into a sale; Rufino Brasileno, with respect to what  he  had heard Jacinto Lizares say to Gregoria Vinco and  another woman,  that if they  had not  sued him,  he would have allowed them to redeem the land; and Aniceto Lacson, as to his attempt, at the request of Jacinto Lizares, to buy the land for  the latter.

Examining all this testimony in detail, the following particular can not but be criticised:

First.  Gregoria Vinco, the adjacent owner to the south of the land in litigation, testified that twenty years before Jacinto Lizares  sent for her father-in-law, Felix Jumero, who went to  the house of Jacinto Lizares in company with his  eldest son, Nicolas, the husband of the witness, with  her husband's sister, Romualda,  and the witness herself, and that there Lizares told them that,  as  the land was mortgaged, he would add 150 pesos more, in order that the land might be sold to him.  When the witness  was  asked  on cross-examination when she had married her husband, Nicolas, she replied:  "Thirty-eight years ago;  that is, two or four years after he was chosen as a recruit."

Romualda Jumero testified:

"When my  brother  was  drafted, it happened that my father did not have the money to redeem  him, and he went and borrowed  the sum  of 50 pesos from Lieutenant Jacinto Lizares, and gave him that land as security.

"Q.  Who told you that your father and Jacinto Lizares made that agreement? - A.  I accompanied my father when we went to Lizares's house.

"Q.  Who was your companion when you and your father went  to  Jacinto Lizares's house? - A. We two, my father and I.

"Q.  Can you tell us  when you went with  your  father to  Lizares's house? - A. About forty years ago.

"Q.  How many times were you in Lieutenant  Lizares's house to talk about that land? - A. I only went once."

The conclusion is, first, that Romualda  Jumero, contrary to the statement made by  Gregoria Vinco,  did not go  to Jacinto Lizares's house, and did not hear what is asserted to have been said about the conversion of the mortgage into a sale; and, second, that  this witness testified in regard  to the alleged contract  of guaranty, made as she  herself asserted, forty years before and when questioned at the beginning  of her testimony,   "How  old  are  you?" replied, "About forty years, I  believe."

The following witnesses testified for the defendant: Gregoria  Meruegos, Hilaria Jumero, Anatolio Jumero, Basilio Alferio as the  husband of  Felisa Jumero, Simon Lizares, and Francisco  Lizares.  Of these, the first  four, and the last, averred that the sale was made by the Jumero family; that is, by the four children of Benedicto Jumero, because of the  need to  redeem  from the military service  a son  of Felix Jumero, the husband of Gregoria Vinco who, as aforesaid, is an adjacent owner of land to the south of the property in question and  the same person who, according  to the testimony of Hilaria Jumero,  built two houses, a large and a  small one, on the land in dispute "and on account  of that the suit began."   The witness Hilaria Jumero testified that Aniceto Lacson made her an offer to buy the land  in question for 700 pesos, inasmuch as it had been acquired very cheaply.  This testimony was confirmed by Aniceto Lacson, in rebuttal, who stated that he had offered her 400 pesos,  but that Hilaria Jumero replied that Jacinto Lizares had also made her an offer.

Gregoria Meruegos,  on cross-examination, stated that she had on some occasion said  that the land  in question was pledged to Lizares, but that as it had not been redeemed it was the same as though the latter had acquired it by purchase.   "If you had not sued me, I would have allowed you to redeem the land," are words that the plaintiffs' witness, Rufino Brasileno, attributes  to  Lizares.  Such  are the results obtained from the oral evidence.

With all the testimony of the witnesses, proof was not adduced of the existence of the mortgage  contract, which, on the other hand, would not cause the debtor's land  to pass to the control of the creditor.

It is not irrational  to accept as  conclusive the testimony of the  defendant's witnesses, although they were partners-on-shares  of, or  in any other manner dependent on, the defendant, because they testified against their own interest in affirming that the land had been  transferred by sale.

It is likely, considering the custom  of  the locality, and indeed a general  one throughout the Islands, that the land was sold  with right  6f redemption,  and hence that its redemption should be  spoken  of as  possible  or as a  mere concession  on the part of the creditor; but, on such a hypothesis, it was a redemption which could not be demanded of the vendee,  by reason  of the prescription acquired, whether the time is computed in accordance with the previous  legislation, or whether, as it  is strictly proper,  such time limit, already expired, be that specified  in the Civil Code; inasmuch  as, even admitting that it was stipulated that the  right to repurchase or redeem  should last for an indefinite time, such period  is restricted to ten years, under paragraph 2 of article 1508 of the Civil Code, and this period has already  elapsed since  its  promulgation.    (Art.  1939, Civil Code.)

The judgment appealed from is affirmed, with the costs of this instance against the appellants.

Torres, Johnson, and Moreland, JJ., concur.
Carson,J., concurs in the result.