OPINION OF
MR. justice AUDREY IN WHICH MB. CHIEP JUSTICE HERNÁNDEZ CONCURS.Luz María del Rosario having died intestate in the town of Cayey of this island on October 25, 1902, his widow and his sis legitimate children were designated as his intestate heirs. By a judgment of court six other children were adjudged to be his acknowledged natural children with the right to participate in his estate. One of these predeceased him and was represented by his grand-daughter.
Attorneys Antonio Sarmiento and Luis Muñoz Morales were appointed to partition and distribute the estate of Luz María del Rosario among all these heirs and their inventory, appraisement, liquidation and division of the same were approved by the District Court of Humacao and protocoled in a notary’s office on June 4, 1904. In these proceedings the legitimate children were represented by a defensor appointed by the court on account of their minority and the conflicting interests of their mother, and debts were acknowledged in favor of Mateo Rucabado, Manuel Otero Valera, Robustiano Meléndez and José Ramírez Muñoz, in payment of which certain real properties which formed a part of the estate as individual properties of the intestate were conveyed to the said debtors who took possession of the same and recorded their ownership thereof in the registry of property. According to that deed the legitimate children were the owners of a third part of the estate of their father.
In such circumstances this action was brought by the legitimate children of Luz María del Rosario and on the grohnd *454that as they were minors at the time, the said properties could not be conveyed to the creditors without authorization of court and that a third part of the properties so conveyed belonged to them, they prayed the court as follows: 1. To adjudge that the conveyances made to the creditors are null and void and without legal force and effect as to a third part. 2. That the records entered in the registry of property by virtue of. said conveyances should be canceled as to a third part. 3. That the said persons to whom the conveyances of the properties were made pay to them certain amounts for rents and profits produced and not received by the plaintiffs during the time they were dispossessed of their joint ownership. 4. That the plaintiffs be reinstated in the possession and ownership of a third part of each and all of the properties conveyed. 5. That the defendants pay the costs and the fees of the plaintiffs ’ attorney. .
At the trial the plaintiffs waived their claims against Ro-bustiano Meléndez and José Ramírez and the complaint being thus reduced to their claims against Rucabado and Otero, the District Court of Gfuayama, in which the action was brought, rendered judgment sustaining the complaint as to the first and second prayers and dismissing it as to the third and fourth, the said judgment being as follows: 1. That as to a third part thereof, the conveyances of properties made to Rucabado and Otero ip the partition of the estate of Luz María Rosario are null and void and without any force and effect. 2. That as to the third part claimed by the plaintiffs, the records of such conveyances should be canceled in the registry of property, all without special imposition of costs and without prejudice to any right which the plaintiffs may have to the rents and profits alleged but not proven.
Defendants Rucabado and Otero appealed from that judgment, which is prejudicial to them only on two points, and the plaintiffs also appealed and stated in their notice of appeal that they were not satisfied with that part of the *455judgment which refused to allow -them the rents and profits of the properties in question and the costs, expenses and attorney fees.
Both appeals were disposed of by this court in its judgment of May 24, 1915, dismissing that of the plaintiffs and sustaining that of the defendants. The judgment of the lower court was reversed as to the part appealed from by the defendants and the complaint was dismissed on the ground that the conveyances ma.de to the defendants in payment of their claims were not null and void; but the plaintiffs moved for a reconsideration of the judgment mainly on account of the subsequent decision of the Supreme Court of the United States in the case of Longpré v. Diaz, 237 U. S. 512, and a rehearing of the case was granted.
We concur in the opinion of Mr. Justice del Toro as regards the reasons for reconsidering the former judgment and ordering a rehearing of the case.
Having reviewed this case a second time, we again hold that the judgment should be reversed and the complaint dismissed inasmuch as the case of Longpré v. Diaz, supra, cannot be applied to this appeal, disagreeing with our two associates on this point.
The plaintiffs not only titled their complaint “in revendí-catión” but clearly brought an action of ejectment, for they alleged that they were the owners by inheritance of a third part of certain real properties in the possession of the defendants and prayed in their fourth prayer that they be reinstated in the possession and ownership of such third part, which prayer was denied by the trial court, and notwithstanding this fact they stated in their notice of appeal that they were not satisfied with the judgment only in so far as it denied them the rents and profits of the third part of the properties claimed and the costs. If, then, the judgment denied restitution to the plaintiffs of the third part of the properties claimed and they did not appeal from that pronouncement, they not *456only have no right to the rents and profits of the third part of the properties, because that claim was incidental to the recovery of the property which was denied and therefore the appeal of the plaintiffs on that point cannot prosper, but the court has no jurisdiction of such question of restitution because no appeal was taken regarding it and a consideration of the case of Longpré v. Diaz, supra, would serve no' practical purpose, for it having been adjudged, and not appealed from, that the plaintiffs have no right to the restitution of the third part of the said properties, as claimed, it is not necessary to consider and decide as to whether the title asserted by the defendants is or is not null and void, since such decision would be the effect of the right to recover the property and when that right is denied the title of the defendants cannot be discussed. Before the court can pass upon the title of a person from whom it is sought to recover specific property it is necessary that the title of the person seeking to recover be proven, and as in this case the court denied the right of the plaintiffs to recover it would not be proper to pass judgment on the title of the defendants.
It is true that besides the allegations in support of the action of ejectment the complaint contains others to show that the title of the defendants is null and void and prays that it be so adjudged, but as the title under which the plaintiffs claim in this suit does not necessarily arise from the nullity of that of the defendants, such allegations of nullity should be considered only as an anticipation of defense (Oliver et al. v. Oliver, ante p. 168,) and consequently should not be considered when the action does not prosper.
In consonance with the foregoing doctrine, in the case of Cristián et al. v. Escobar et al., ante p. 257, this court said:
“Respecting the annulments prayed for in the complaint, as they are not the cause but the effect of the principal action of ejectment, and as the action does not lie, it would be superfluous to consider them. Judgments of -the Supreme Court of Spain of October 16, 1873; January 17, 1889; April 6, 1889, and February 13, 1882, *457and decisions of tbis court in tbe cases of Succession of Nieves v. Succession of Sánchez, 17 P. R. R. 837, and Oliver v. Oliver, decided July 30, 1915.”
The plaintiffs having no right of action to recover the third part of the properties referred to, for that is what the pronouncement of the judgment denying restitution, which was not appealed from, amounts to, what right have they to the. ammlments and cancellations granted them by the judgment? The latter pronouncement is incompatible with the former. There is a contradiction in terminis.
As regards the appeal of the plaintiffs from the part of the judgment of the lower court refusing to allow them the costs, we agree with our two associates in the reasons stated for not sustaining the plaintiffs. It may be that they have not followed the proper procedure on this point, but it is not incumbent upon us to indicate to them what that may be.
. For the foregoing reasons the appeal of the plaintiffs should be dismissed and that of the defendants sustained; consequently the complaint should be dismissed without special imposition of costs.