G.R. No. L-6383-84. December 19, 1953

Civil case No. 702 of the Court of First Instance of Nueva Ecija is an
action brought by Liberato Avecilla against Francisco Frias and Filemon
Santos to annul Torrens certificate of title No. 459 issued upon a
homestead patent, while civil case No. 756 of the same court is an
appeal from a judgment by the justice of the peace court of Bongabon in
an action for unlawful entry brought by Francisco Frias against
Liberato Avecilla. While the two cases were pending, Francisco Frias
and Filemon Santos, defendants in civil case No. 702, filed a petition
for contempt against Liberato Avecilla, on the ground that pursuant to
the order of the court of 25 May 1951 Liberato Avecilla was to vacate
the land involved in the litigation after the expiration of fifteen
days from the date of the order which were granted to give the parties
an opportunity to come to an amicable settlement, and that Liberato
Avecilla and his laborers despite the lapse of the fifteen-day period
and without the parties having come to an amicable settlement within
the said period, continued to occupy the land. On 25 June, upon
agreement of the parties the court ordered Liberato Avecilla to file a
bond in the sum of P4,000 in favor of Francisco Frias and Filemon
Santos within ten days from the date of the order, withheld action on
the motion for contempt. On 5 July, Liberato Avecilla and the Capital
Insurance & Surety Co., Inc. executed and filed a bond which in
words and figures is as follows:

That we
Liberato Avecilla as principal, and THE CAPITAL INSURANCE & SURETY
CO., INC., a corporation duly organized and existing under and by
virtue of the laws of the Philippines, as surety, are held and firmly
bound unto Filemon Santos et al., defendants in civil case No. 702, CFI
(N. E.) in the sum of FOUR THOUSAND PESOS (P4.000 Philippine currency),
for the payment of which, well and truly to be made, we bind ourselves,
our heirs, executors, administrators, successors and assigns, jointly
and severally, firmly by these presents.

THE CONDITIONS OF THESE OBLIGATIONS ARE AS FOLLOWS:

Upon agreement of the parties, the plaintiff is hereby ordered to file
a bond of FOUR THOUSAND PESOS (P4,000) in favor of the defendants
within ten (10) days from today, otherwise he will be ordered to leave
the land; and action on the motion filed by the defendants for contempt
against the plaintiff is hereby held in abeyance.

SO ORDERED.

City of Cabanatuan, June 25, 1951.

	ENRIQUE MAGLANOC
	Judge

WHEREAS,
the Court of First Instance requires said principal to give a good and
sufficient bond in the above stated sum to secure the full and faithful
performance on his part of said obligation.

NOW,
THEREFORE, if the above bounden principal shall in all respect duly and
fully observe and perform all and singular the aforesaid covenants,
conditions and agreement to the true intent and meaning thereof, then
this obligation shall be null and void, otherwise to remain in full
force and effect.

Liability of surety on this bond will
expire on THIRTY DAYS and said bond will be cancelled 10 DAYS after its
expiration, unless surety is notified of any existing obligations
thereunder.

IN WITNESS WHEREOF, we have set our hands and signed our names on the 5th day of July, 1951.

	LIBERATO AVECILLA
	(Principal)

IN THE PRESENCE OF:
	SOFRONIO OLIVEROS
	MAMERTO M. MACAPAGAL
		THE CAPITAL INSURANCE & SURETY CO., INC.
			DR. ENRIQUE M. MELENCIO
			In Charge, Cabanatuan Branch

(The acknowledgments before the notary public, jurat and

approval by the presiding judge follow)

(Exhibit D)

The two cases were heard and judgment was rendered on 27 March 1952,
amended by another dated 13 May, dismissing the complaint in civil case
No. 702 with costs against Liberato Avecilla and ordering him in the
other case (No. 756) to pay yearly to Filemon Santos the sum of
P1,633.80 and to Francisco Frias the sum of P1,529.52 beginning from
the agricultural year 1950-1951 until Liberato Avecilla vacates or
returns the possession of the parts of the parcel of land involved in
the litigation. On 19 May, the parties were notified of the amended
judgment of 13 May and as none of them appealed therefrom, the same
became final and executory. The writ of execution issued on 25 June
1952 against Liberato Avecilla having been returned unsatisfied, on 1
September, Francisco Frias and Filemon Santos moved for an alias
writ of execution of the judgment against Liberato Avecilla and the
Capital Insurance & Surety Co., Inc. The motion was objected to by
the Capital Insurance & Surety Co., Inc., in so far as it concerned
the surety, on the ground that the bond was for one year only and was
to be cancelled ten days after its expiration unless the surety was
notified of any existing obligation thereunder. The court denied the
petition for execution against the surety company. Hence this petition
to compel the respondent court to issue a writ of execution against the
Capital Insurance & Surety Co., Inc.

In the surety bond
it is stipulated that the “Liability of (the) surety on this bond will
expire on THIRTY DAYS and said bond will be cancelled 10 DAYS after its
expiration, unless (the) surety is notified of any existing obligations
thereunder.” The bond executed on 5 July 1951 was extended to 4 July
1952 “and to be cancelled 10 days thereafter unless notified of any
obligation.”

It is contended that being a judicial bond it
must answer for the principal’s liability that may be adjudged by the
court in the case where it is filed and that the time limitation of the
surety’s obligation under the bond is unauthorized and illegal. The
bond was executed and filed to forestall the issuance of a mandatory
injunction against Liberato Avecilla and it was a sort of a counter
bond filed by him conditioned that he would pay all damages which the
adverse parties might suffer by reason of the continuance during the
action of the acts complained of.^[1] The
bond executed and filed in these cases is not as that described and
provided for in the rule referred to but merely one for the sum of
P4,000 and for a limited time. The surety was not bound to execute a
bond if it did not wish to. If the bond executed and filed was
defective, the parties in whose favor it was executed should have
objected to it. This the obligees failed to do. There is no rule of
court which requires a surety to execute a bond which would answer for
the principal’s liability that might be adjudged by the court in the
case where it was filed, if the surety did not wish to execute such
bond. It is a settled rule in this jurisdiction that a surety or a
guarantor is not responsible beyond the terms of his undertaking. And
it appearing that the bond filed in this case expired on 4 July 1952,
the surety cannot be held liable under the bond beyond 4 July 1952, and
it could cancel the bond ten days thereafter if the obligees failed to
notify it of the principal’s obligation under the bond.

The petition for a writ of mandamus is denied, without costs.

Paras, C. J., Pablo, Bengzon, Tuason, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

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^[1] Section 6, Rule 60.