
    Vega et al., Plaintiffs and Appellants, v. Agosto et al., Defendants and Appellees.
    Appeal from the District Court of San Juan in an Action of Ejectment and for Damages.
    No. 2506.
    Decided July 18, 1922.
    Ejectment — Description op Property — Evidence.—This was an action to recover from, several defendants the different parcels of land alleged to compose the property in suit. Reid: That the judgment dismissing the complaint should be affirmed for the following reasons: 1. Because neither the complaint nor the evidence described the parcel of land which each defendant was alleged to possess. 2. Because the evidence was insufficient. 3. Because the evidence was contradictory and it has not been shown that the court erred in weighing it.
    The facts are stated in the opinion.
    
      Mr. M. Acosta Velarde for the appellants.
    
      Mr. F. Pinero for the appellees.
   Mb. Justice Aldbey

delivered the opinion of the court.

This appeal was taken by the plaintiffs from a judgment dismissing their Complaint.

Their action was based on the allegations that they had been adjudged the sole heirs of Victor Vega, who was the owner of a property of 78 acres in the ward of Cuhuy of Loiza with its possession recorded in the registry of property since 1894; that their father sold 34 acres of this property to Felipe Ortiz, keeping a parcel of 44 acres as described; that their father died in 1902 and in the following year the five defendants took possession of the property against the will of the plaintiff in the following respective portions: Rosario Agosto, 32 acres; Aquilino Vega, 2 acres; Ramón Calderón, 2 acres; Joaquín Mosa, 5 acres, and Por-talatino de la Cruz, 3 acres; that the said defendants appropriated the products -of the said parcels of land, for which each of them is liable for a certain sum stated.

The defendants jointly demurred to the complaint and after the demurrer had been overruled they answered with a general denial of each and all of the allegations of the complaint' and set up the special defense that Rosario Agosto, Aquilino Vega, Joaquín Mosa and Portalatino de la Cruz are not and never have been in possession of any part of the property sought to he recovered; that the parcel of two acres of land alleged by the plaintiffs to he in the possession of Ra-món Calderón was purchased by him from Felipe Ortiz, according to a public deed of 1906, the said Ortiz having purchased it from Victor Vega, the father of the plaintiffs, and that the land sued for could not have yielded the products ' as alleged in the complaint, for all of which they prayed that the complaint be dismissed.

The complaint did not describe the parcel of land which each defendant was alleged to possess so that a judgment, against them conld set forth what each of them must restore and thus make execution thereof by the marshal possible, nor did such descriptions appear from the evidence. The evidence for the plaintiffs consisted of the testimony of two of them. Eduardo Vega testified that he did not know whether Eosario Agosto was then in possession of the parcel of 32 acres, and Secundino Vega testified that Eosario Agosto had sold it to Eexach. Two other witnesses referred generally to the property of 44 acres and, like the first two, made particular reference to Eosario Agosto. Euperto Miller testified as to the boundaries of the property of 44 acres and said that the defendants had told him that they were in possession of these parcels of land, but later it developed that he did not know Victor Vega or the property, nor even the plaintiffs until during a conversation they showed him the property and told him to get an attorney and examine the records of the registry of property. This witness concluded by saying that what he had testified to was hearsay. It was not shown that the parcel of 2 acres in the possession of Eamón Calderón was a part of the property of 44 acres.

The evidence is insufficient of itself to justify a judgment for the plaintiffs, and it was totally contradicted as to the possession by the defendants of the property of 44 acres, for not only did Eosario Agosto deny that he ever had any property in the ward of Cubuy, but testified that it was Ms brother Julio Agosto who has property there, and this was corroborated by an adjoining owner, Hilario Bodriguez, and by Julio Agosto himself, who testified that he had possession of the property. Eamón Calderón proved by his deed that he purchased from Felipe Ortiz the 2 acres of which he was in possession out of the 34 acres that Ortiz had purchased from' Victor Vega, the father of the plaintiffs.

The trial judge believed these witnesses and as the plaintiffs did not prove that the defendants were in possession of the properties for the recovery of which they were sued, a judgment could not he rendered ordering them to restore the same.

The judgment appealed from must he

Affirmed.

Chief Justice Del Toro and Justice Hutchison concurred.

Justices Wolf and Franco Soto took no part in the de-cisión of this case.  