G.R. No. 38989. December 01, 1933
ALEJO BASCO, PETITIONER AND APPELLANT, VS. MANUEL ERNESTO GONZALEZ, OPPOSITOR AND APPELLEE.
VICKERS, J.:
above entitled land registration case in the Court of First Instance of
Pangasinan, praying that he be declared the owner of the two parcels of
land described in the petition and given a certificate of title to
them, and be placed in possession of said parcels of land. This
petition was opposed by the appellee, Manuel Ernesto Gonzalez.
After considering the evidence presented by the parties, the trial
judge found that Manuel Ernesto Gonzalez had the right to redeem his
properties at the time when he did it; that he redeemed them within the
time prescribed by law, and that the deed of conveyance executed by
deputy sheriff Theo. R. Pasion in favor of Cipriano P. Primicias is
null and void, and likewise the sale made by Cipriano P. Primicias to
the petitioner Alejo Basco; and overruled the claim presented by
Cipriano P. Primicias, and ordered the sheriff Arturo G. Maramba to
deliver the sum of P2,240 to Cipriano P. Primicias, and declared Manuel
Ernesto Gonzalez the owner of the two parcels of land in question.
The attorneys for the appellant make the following assignments of error:
“The lower court erred:
“I.
In holding that ‘Gonzalez no perdio su caracter de ejecutado y, como
tal, tenia derecho de recomprar sus propiedades del Sr. Primicias, de
acuerdo con las disposiciones del articulo 464 de la Ley No. 190.’“II. In holding that the offer to redeem made by Manuel Ernesto Gonzalez to the provincial sheriff Maramba was legal and valid.
“III. In holding that the deed of final sale executed by deputy
provincial sheriff Theo. R. Pasion in favor of Cipriano P. Primicias,
as well as the sale executed by the latter in favor of Alejo Basco, are
invalid and without legal effect.“IV. In giving judgment for the oppositor and appellee and against the petitioner and appellant.”
The facts of the case may be briefly stated as follows: In civil case
No. 5515 of the Court of First Instance of Pangasinan (G. R. No. 32953)[1]
Manuel Ernesto Gonzalez was ordered to pay Jose Feliciano the sum of
P2,740. On January 15, 1931 a writ of execution was issued in said case
directed to the provincial sheriff of Pangasinan. The provincial
sheriff through his deputy, Theo. R. Pasion, levied on the two parcels
of land now in question and sold them at public auction on February 12,
1931. They were bought by Cipriano P. Primicias for P2,000, and Theo.
R. Pasion as deputy sheriff issued to him the corresponding certificate
of sale.
In civil case No. 6201 of the Court of First
Instance of Pangasinan, E. G. Turner obtained a judgment against Manuel
Ernesto Gonzalez, and on February 6, 1932, in pursuance of an order of
execution and levy, any right, title or interest which Gonzalez still
had in the two parcels of land in question was sold at public auction
to Turner for P989.25.
On February 11, 1932, Manuel Ernesto
Gonzalez applied to the provincial sheriff of Pangasinan, Arturo
Maramba, for the redemption of the two parcels of land that had been
sold to Primicias on February 12, 1931, for P2,000, and delivered to
the provincial sheriff P2,240 to cover the purchase price and interest,
and on the day following, the provincial sheriff executed the
corresponding certificate of redemption in favor of Manuel Ernesto
Gonzalez, and notified Cipriano P. Primicias of the redemption by the
judgment debtor, and placed at the disposition of said Primicias the
sum of P2,240. On February 13, 1932, Primicias refused to accept the
said sum, and notified the provincial sheriff that he would take steps
to have Theo. R. Pasion execute a deed of conveyance in his favor, and
on the same day the said Theo. R. Pasion as ex-deputy provincial
sheriff of Pangasinan executed a deed in favor of Cipriano P. Primicias.
On March 21, 1932, Primicias executed in favor of Alejo Basco, the
appellant herein, a document which purports to be a sale of the two
parcels of land in question for P10,000.
On June 11, 1932,
Manuel Ernesto Gonzalez paid E. G. Turner the sum of P1,032.12, and
Turner executed and delivered to Gonzalez the corresponding certificate
of redemption.
The first and principal contention of the
appellant is that Gonzalez had no right to redeem the property from
Primicias without first redeeming from Turner. We cannot agree with
this contention. The property was sold to Primicias, subject to the
right of Gonzalez to redeem it within one year. The right of Gonzalez
to redeem the property was not sold by him to Turner, as stated in
appellant’s brief, but was sold by the sheriff to Turner a few days
before the expiration of the period of redemption. The interest of
Gonzalez in the property was not extinguished thereby. It is our
opinion that he still retained the right to redeem the property. Any
redemption effected by him would naturally redound to the benefit of
Turner, and Primicias, the purchaser at the first sale, had no right to
interpose any objection on behalf of Turner to the redemption by the
judgment debtor.
The further contention of the appellant
that the redemption made by Gonzalez through the provincial sheriff is
not valid, and that redemption could be made legally only through
Primicias or the former deputy sheriff, Theo. R. Pasion, is untenable.
In the case of Papa vs.
Manalo (29 Phil., 360, 364), this court held that although the
purchaser at the auction is the only person who has a right to receive
the price of the thing redeemed, the redemptioner may, however, deposit
it in the hands of the sheriff for its delivery to such purchaser,
especially in the case where the latter refuses to receive it, or when
for any reason it may be feared that the period for redemption may
lapse without its being shown in an authentic manner that the
redemptioner has in due course of time complied with his duty to pay
the price of the sale and interest thereon.
It appears that
Theo. R. Pasion, the deputy sheriff who sold the property at public
auction to Primicias, was no longer a deputy sheriff at the time of the
redemption, and that he was residing in another province. The evidence
further shows that Primicias, the purchaser of the property at public
auction, was unwilling to allow Gonzalez, the judgment debtor, to
redeem the property. Under these circumstances, we are of the opinion
that the judgment debtor could legally redeem the property by
depositing with the provincial sheriff a sum sufficient to cover the
price at which the property was sold and the interest thereon at the
rate of one per cent per month.
In the case of Enage vs.
Viuda e Hijos de F. Escaño (38 Phil., 657), we held that it is the duty
of the sheriff to accept the payment and to issue the certificate of
redemption, when the purchaser refuses to permit redemption.
It
is provided in sections 465 and 466 of the Code of Civil Procedure that
written notice of any redemption must be given to the officer who made
the sale, and that the payments mentioned in said sections may be made
to the purchaser or redemptioner, or for him to the officer who made
the sale. We take that to mean the provincial sheriff to whom the order
of execution was directed, or his successor, if he is no longer in
office when the property is redeemed, and not the individual deputy
sheriff that conducted the sale. To require notice of redemption to be
given to the officer who made the sale would in many cases be
unreasonable, if such sheriff or deputy sheriff is no longer in office.
He may have died or moved away. Although the deputy sheriff, who made
the sale, is still in office at the time of redemption, we see no valid
reason nevertheless why redemption can not be effected through the
provincial sheriff then in office. He is the responsible officer. The
deputies are subject to his orders, and may be absent from the
sheriff’s office when the judgment debtor desires to redeem his
property. The provincial sheriff is responsible for the acts of his
deputies, yet it is urged that he cannot lawfully do what one of his
deputies may do.
Great stress is laid by appellant’s
attorneys upon section 472 of the Code of Civil Procedure, which
provides that in case of the death of the officer making the sale,
before the expiration of the period of redemption, the deed may be
executed by his successor in office; and that in case the officer’s
term of office expires before the termination of the period of
redemption, he may execute the deed at the expiration of such period
notwithstanding he has ceased to remain in office, and such deed shall
have the same validity as though he had continued in the office. We do
not find it necessary at this time to construe this section, as we are
not now dealing with an officer’s deed of conveyance, but with a
certificate of redemption; and since the property was redeemed
according to law, as we have found, it naturally follows that the deed
of conveyance executed by the former deputy sheriff in spite of the
redemption is null and void.
The appellant prays finally
that he be reimbursed in the sum of P10,000 in the event that the
judgment appealed from be affirmed. This prayer is obviously without
merit, in so far as Gonzalez is concerned. We are not here concerned
with appellant’s right of action against Primicias.
The
motion of appellant’s attorneys, praying that the attorney for the
appellee be subjected to some disciplinary action because of the
“improper, disrespectful, and insulting statements in his brief” is
denied for lack of merit.
The decision appealed from is affirmed, with the costs against the appellant.
Street, Abad Santos, Butte, and Diaz, JJ., concur.
[1] Gomez and Gonzalez vs. Feliciano, promulgated December 3, 1930, not reported.