
    Francavilla et al., Plaintiffs and Appellants, v. Orlando, Defendant and Appellee.
    Appeal from the District Court of Ponce in an Action of Revendication.
    No. 3343.
    Decided January 30, 1925.
    Revendicatton — Etidenoe of Title. — The fact that the estate of the defendant's mother was partitioned’and the property sued for was allotted to the defendant is no proof of a title in his favor when there is no evidence that the plaintiff’s ancestor conveyed the property to the 'defendant’s mother.
    Id. — Profits—Bad Faith — Defects of Title. — When possession is acquired contrary to law, as when a person takes possession of property in which minors * are interested without authorization of conrt, the bad faith of the possessor is presumed unless his possession, is by inheritance, in which case the bad faith in connection with the recovery of profits is rather a question of fact and it is necessary to prove that the heir had knowledge of the defects that made his title void.
    The facts are stated in the opinion.
    
      Messrs. Martines Nadal, Tormes & Colón for the appellants.
    
      Mr. L. Torres Grau for the appellee.
   Mb. Justice Fbanco Soto

delivered the opinion of the court.

This is an action to recover a certain urban property and mesne profits.

The court below rendered judgment sustaining the complaint as to recovery of the property, but denied recovery of tbe rents received by the defendant during his possession and did not impose upon him the costs. The appeal taken by the plaintiff refers to the last two matters assigned as error and argued in their brief.

The appellants are entirely correct. The evidence on which the trial court sustained recovery of the property justified recovery of the profits and - costs.

From the evidence it appears that the house sued for was built by Eafael Yolpe, the ancestor of the plaintiffs, on a lot granted to him by the municipality of Yauco. He was a mason who supported himself by his trade, and after he had finished the house and lived in it for a short time with his wife and minor children, the plaintiffs, he suddenly died. It also appears that after the death of Rafael Yolpe several debts remained pending as a result of the building of the house amounting to $100 and were paid by the defendant. It appears likewise that upon the death of her husband the plaintiff intended to return to her native country, Italy, for which she received from her aunt, Ana Maria Francavilla, the defendant’s mother, the sum of $125. This voyage was not made because of difficulties arising as a result of the great war, but the plaintiff testified that it was the intention of her aunt and the defendant to furnish the expenses of her trip in exchange for the house in controversy. The evidence also tended to show that since 1916 the defendant had possession of the property, collected for himself the rent of from $5 to $8 a month and paid the taxes.

The defendant offered evidence tending to show that although the plaintiff’s ancestor commenced the construction of the house, later the mother of the defendant took charge of it because the said ancestor had no more money. However, this evidence has no reasonable explanation in the light of the pending debts originated in the building of the house and contracted directly by the ancestor and afterwards paid by the defendant, who collected interest, on the money from the plaintiffs. It was not shown by any kind of evidence that Rafael Yolpe conveyed to Ana Maria Francavilla the ownership of the house. It is of no importance that the defendant offered in evidence the partition of the estate of his mother, Ana Maria Franca-villa, wherein the property was allotted to the said defendant. In the absence of evidence to show the acquisition of the house by the defendant’s mother the partition had no more weight than the testimony of the defendant and one of his witnesses, who were not believed by the trial court and who said that Ana Maria Francavilla took charge of finishing the house because Rafael Volpe did not have sufficient money.

It is to be observed that the defendant-appellee does not complain of the conclusions reached by the court for adjudging recovery of the property and only contends in hiS' brief that his possession was in good faith and he was not bound to return the rents not received by the plaintiffs or to pay the costs.

Therefore it has been necessary to review the evidence-in order to decide the issue as to the profits, inasmuch as this seemed to be a question inherent to the merits of the main action.

If the evidence showed that the urban property belonged to Rafael Volpe and it did not appear that he conveyed his title of ownership to Ana Maria Francavilla, the mother of the defendant, it is clear that the defendant had no title to the said property. Nor could the defendant, as a question of law, be protected under the presumption of good faith because of the mere fact that he paid certain debts which Rafael Volpe left unpaid at the time of his death and which originated in the building of the house. As there were minors, neither the defendant nor his ancestor could claim the property without complying with the formalities prescribed by Act No. 33 of March 9, 1911, amending sections 229, 282 and 284 of the Civil Code. The prohibition is statutory. Therefore, direct evidence is not necessary to establish the bad faith of the possessor, as it is one of the cases in which bad faith is inherent to the very abnormal condition of the'possession due to non-compliance with the law, and as a matter of law the presumption of bad faith wonld rather seem to obtain. Scaevola, following Laurent’s view, says that article 434 of the Spanish Civil Code, equivalent to section 437 of onr Civil Cqde, refers to cases where good faith depends upon the opinion of the judge, not to a case where bad faith is manifest because of a violation of the law. The said section of our Civil Code reads as follows:

“Sec. 437. — Good faith is always presumed, and any person averring bad faith on the part of a possessor, is bound to prove the same. ’ ’

Manresa (volume 4, page 106) is of the same opinion in commenting on article 434 of the Spanish Civil Code and says that where a plaintiff, besides asserting his right, prays for a finding of bad faith, he should prove it, but at the same time maintains that if the invalidity involves inexcusable ignorance of the law, a presumption contrary to that of section 434 is established.

The judgment of the Supreme Court of Spain of March 14, 1867, holds that “The rule o| law that bad faith is not presumed is riot violated when the law considers that such bad faith exists because of action or omission contrary to law. ’ ’

Finally the case of Longpré v. Díaz, 237 U. S. 512, which is the highest expression of the doctrine discussed, cites-with approval the comments of Scaevola and the Spanish jurisprudence on this point. It is to be noted, however, that a distinction is drawn between the nature of the possession of the author and that which, after his death, passes to his heirs or successors. From this aspect application is made of section 444 of the revised Civil Code, equivalent to article 442 of the Spanish Civil Code, the deduction being that whatever the defect invalidating a title or whatever the inexcusable omission to comply with the law which makes it void, if the possessor succeeds by inheritance the question of had faith in connection with the recovery of profits is rather one of fact and must he proved, the claimant showing that the heir had knowledge of the defects that rendered his title void.

In this case it is true that the defendant pleads his character as an heir, bnt the evidence as a whole shows clearly the knowledge of the defendant, not of the defects in his title, but rather of the total absence of title for the reason that Rafael Yolpe did not convey to Ana Maria Francavilla, the defendant’s ancestor, his ownership title by any of the means of conveyance.

Going into the merits of the evidence as to the profits claimed, it may be deduced that the average monthly rent of the house was $6 and that the defendant received it during seven years. The total amount of the profits, therefore, is $504. From this must be deducted, as is done by the plaintiff without opposition from the defendant, the taxes and expenses of repairs which may be estimated at $16 a year. After such "deduction a net balance of $392 is left. This is the amount that the defendant should pay to the plaintiff-appellants as the profits claimed in the complaint. Likewise, the nature of the case makes manifest the temerity of the defendant and he should pay the costs.

Perhaps it is not superfluous to say that the amounts owing to the defendant by the ancestor of the plaintiffs, or the debts contracted by his widow, are not at issue in this case and need not be considered.

For the foregoing reasons the judgment of the court below must be reversed in so far as it denied the recovery of the profits and substituted by another adjudging that the defendant pay to the plaintiffs the sum of $392 as the net amount of the profits received by the said defendant, together with the costs.

Reversed.

Chief Justice Del Toro and Justices Wolf, Aldrey and Hutchison concurred:  