ZARATE AND VALENTIN ZARATE, APPLICANTS AND APPELLANTS, VS. THE DIRECTOR OF LANDS, OPPOSITOR AND APPELLEE.

This
is an appeal from a decision of the Court of First Instance of Benguet
in a land registration case dismissing the petitions of an Igorot named
Zarate and another named Valentin Zarate, for the registration of their
title to certain lots in the townsite of Baguio. In his application for
registration filed November 4, 1930, Zarate claims to be the owner in
fee simple of lot No. 186 in Residence Section K of the Baguio
townsite; that he acquired said lot by inheritance from his father who
in turn inherited it from his father who had for many years put parts
of it in cultivation; that applicant and his tenants have occupied the
land continuously for many years; that he is fifty years of age, a
citizen of the Philippine Islands and a native of Baguio. He attaches
to his petition tax receipts for the years 1910, 1913, 1918, 1920, 1925
and 1926.

Valentin Zarate, in his petition for registration,
filed July 31, 1931, asserts that he is the owner in fee simple of a
parcel of land of nine-tenths of a hectare in the townsite of Baguio
described in his petition; that he acquired said land from his
grandmother; that the same is in his possession but that the Bureau of
Lands has been cultivating a part thereof since last August without the
knowledge and consent of the petitioner. The Director of Lands, through
the Attorney General, filed objections to the applications, the
principal ground of which is that both the lots involved had been
judicially declared to be public domain in Record No. 211 of the same
court.

At the hearing, the following stipulation was entered into between the parties:

“The
applicant Zarate in case No. 98, G. L. R. O. Rec. No. 40458, and his
attorney Mr. Hermenegildo Gualberto, and the applicant Valentin Zarate
in case No. 100, G. L. R. O. Rec. No. 42434, and his counsel, Attorney
Manuel Montilla, and Fiscal Magno representing the Director of Lands,
the oppositor in both cases, agree to the joint hearing of these two
applications. All the parties and their counsel further agree that the
lands applied for in both cases are included in the Townsite
Reservation of Baguio No. 1, G. L. R. O. Rec. No. 211; that the notice
of this reservation was issued on July 22, 1915, and was duly published
pursuant to law; that the proceedings in this townsite reservation of
Baguio were instituted pursuant to the provisions of Act No. 926 in
relation to Act No. 627 relative to military reservations and that this
reservation case was finally decided on November 13, 1922; that the
herein applicants Zarate and Valentin Zarate did not file their
applications for their claims within the reservation, within the period
required by law. The parties further agree that pursuant to the
provisions of section 3 of Act No. 627, particularly the last part of
said section, the deputy clerk of court Gabino Villanueva has prepared
and issued a certificate, a certified copy of which marked Exhibit X is
made part of this record and that attached to said certificate, he has
also prepared and issued a list of the persons supposed to be found
living on and occupying lands within the reservation and that the names
of the applicants herein or their predecessors in interest do not
appear in this list. These certificate and list are attached to the
record of the reservation of the townsite of Baguio.”

On motion of the oppositor, the court below dismissed the applications
of Zarate and Valentin Zarate on the ground that they did not file
their applications for the registration of their titles within the
period required in sections 3 and 4 of Act No. 627, being entitled: “An
Act to bring immediately under the operation of the Land Registration
Act all lands lying within the boundaries lawfully set apart for
military reservations, and all lands desired to be purchased by the
Government of the United States for military purposes.”

It
is the contention of the appellee that the appellants are bound by the
judgment finally entered on November 13, 1922, in Record No. 211
referred to in the stipulation of facts; that the lands, which
appellants claim, were thereby declared to be public domain and hence
their application for registration must be dismissed as res judicata.
The appellants in substance contend that they are not bound by the
judgment of November 13, 1922, because they were not served personally
with the notice required by Act No. 627 under which said judgment was
entered; that said notice is mandatory and said judgment, if binding on
them, would amount to the taking of their property without due process
in violation of the Organic Act.

In the three consolidated
cases of Lagariza against the Commanding General of the Division of the
Philippines; Saba against the same and Garcia against the same,
reported in 22 Phil., 297, we had occasion to consider at length
sections 3 and 4 of Act No. 627. These sections are quoted in that
opinion. In those cases as in this, it was contended that the
applications for registration were filed long after the expiration of
the period prescribed by Act No. 627; that the six months limitation
period begins to run from the date the notice is issued by the court of
Land Registration and not from the time the notice is received by the
occupants upon whom it is personally served. In rejecting this
contention, we made the following, comments:

“As
is seen from the wording of the section just quoted, the law
contemplates notification to two classes of persons: one, those who are
‘living upon or in visible possession of any part of the military
reservation’; the other, those persons who are not living upon or in
visible possession of any part of the military reservation, but are
absentees. A distinction is made in the law between these two classes
of persons as to the manner in which service of such notice shall be
made. Service is complete under the law as to those persons who are not
living upon or in visible possession of any portion of the lands in
question when publication of the notice in the newspapers is completed
and duly fixed upon the four corners of the premises as required by the
law. When these two things are done service upon those persons who are
not living upon or in visible possession of the premises is complete,
and the six months’ period then begins to run. But as to those persons
who are living upon or in visible possession of the lands, the service
is not complete and the six months’ period does not begin to run until
the notice is served upon them personally. As to this class, it is of
no consequence when the notice was published or when it was posted.
Their rights relative to the period within which they must respond are
determined by the date of the personal service. The date of the notice,
or the time of its publication, or when it was posted upon the
premises, has no influence, direct or indirect, upon the time within
which persons living upon or in visible possession of the premises must
present their claims. The publication is, of itself, no sufficient
notice to them; nor is the posting of notice upon the premises. Their
notice is a personal notice, given by personal service, and only such
notice can set the period running against them. If the six months’
period begins to run from the date of the notice and not from the date
of personal service, then the notice may be served upon a person in
possession of the premises on the very day that the six months’ period
expires, and, indeed, on the very last hour of that day. Such service,
being a good service under the theory advanced, would effectually
deprive the person so served of his property as it would give him no
opportunity to present his claim.”

The
court below said: “That these applicants or their predecessors in
interest never received any personal notice may be presumed.” The
applicants Zarate, through their attorneys, offered to prove, if
allowed by the court, that the applicants or their predecessors in
interest were the actual occupants of the land applied for during the
period covered by the reservation proceedings (Record No. 211), having
houses and other improvements there to show their visible occupancy.
But this offer of the applicants was rejected, although the court below
recognized that that was precisely the question before it for
determination. The court below raised a conclusive presumption against
the applicants that they were not living upon or in visible possession
of the lands which they now claim, at any time during the reservation
proceedings, nor at the time the clerk of the court made personal
service upon such occupants in conformity with the duty laid upon him
by Act No. 627.

Besides notice by publication and posting, Act No. 627 requires personal notice as follows:

“*
* * The clerk shall also cause a duly attested copy of the notice in
the Spanish language to be posted in a conspicuous place at each angle
formed by the lines of the limits of the land so reserved. The clerk
shall also issue and cause to be personally served the notice in the
Spanish language upon every person living upon or in visible possession
of any part of the military reservation. If the person in possession is
the head of a family living upon the land, it shall be sufficient to
serve the notice upon him, and if he is absent it shall be sufficient
to leave a copy at his usual place of residence. The clerk shall
certify the manner in which the notices have been published, posted,
and served, and his certificate shall be conclusive proof of such
publication, posting, and service, but the court shall have power to
cause such further notice to be given as in its opinion may be
necessary.” The return of the clerk (Exhibit X) certifies as follows:

“2nd.
That I have made personal service upon each and all persons living upon
and each and all persons in visible possession of any part of said
reservation by delivering to each of said persons a true and certified
copy of said notice, in the Spanish Language, a correct list of which
persons, together with the dates of service thereon, marked Exhibit B,
is attached hereto, returned herewith and made a part hereof.” The
certificate gives a list of one hundred thirty-four occupants upon whom
the clerk made the personal service referred to in his certificate, but
the names of the appellants are not on this list. Because of that
omission the court below drew the inference that the appellants were
not in fact occupants of any lands within the reservation. We think
this inference is not warranted.

Section 3
of Act No. 627 provides that the certificate of the clerk shall be
“conclusive proof of service”. That undoubtedly means that none of the
persons whose names appear on the list referred to will be heard to
impeach the clerk’s certificate. But we find no warrant for reading
into that certificate any statement not therein contained. The court
below also rested its inference that the appellants were not in fact
occupants at the time referred to, on the presumption of our Code of
Civil Procedure (section 334, paragraph 14) to the effect that
“official duty has been regularly performed”: that is to say, inasmuch
as the clerk is required by Act No. 627 to serve personal notice “upon
every person” living upon or in visible possession, it must be presumed
that he has performed that duty. If the appellants’ names, therefore,
are not on the list, it could only be because they were not in fact
living upon the land or in visible possession. But this presumption is
not conclusive. It is rebuttable and the appellants have made the offer
to overcome it by proof.

Nor are we impressed by the
“practical” argument of the appellee, that if this appeal is sustained
a cloud will be thrown upon all the titles to lands which were decreed
in Record No. 211 to be public lands, the assumption being that there
may be many persons who did not receive the personal notice required by
the statute. We cannot concur in that assumption in the absence of any
evidence. But even so, if a wrong has been done by the Government on a
wholesale scale, there is all the more reason why it should be
corrected.

Considering the vital importance of personal notice (Lagariza vs. Commanding General of the Division of the Philippines, supra)
and further that the explicit mandatory provision of the statute and
the due process clause of the Organic Act require that such notice
shall be given as a basis for the jurisdiction of the court to require
compulsory registration within the time limited, on the pain of
forfeiture (section 4 of Act No. 627), we have come to the conclusion
that the judgment appealed from should be reversed and the court below
directed to consider on their merits the applications of the appellants
for registration of the lands which they claim, in accordance with the
provisions of the Land Registration Act.

Costs in this court de oficio.

Avanceña, C. J., Street, Abad Santos, and Imperial, JJ., concur.

Villamor, Ostrand, Villa-Real, and Vickers JJ., concur in the result.