PEREGRINA REBONG, PETITIONER VS. FIDEL IBAÑEZ, JUDGE OF FIRST INSTANCE OF LAGUNA, RESPONDENT.

This is a petition for certiorari against the respondent judge of the Court
of First Instance of Laguna on the ground that the latter acted in excess of
jurisdiction or with grave abuse of discretion in denying the petition for
cancellation of the lien or annotation on the certificate of title issued to the
petitioner, of a land extra-judicially inherited by him as the only heir of her
predecessors in interest to the effect that the property described in the title
is subject to the claims of the creditors and other heirs of the deceased Jose
Rebong and Maria Rebong within two years from July 9, 1947, in accordance with
sections 1 and 4, Rule 74 of the Rules of Court.

The petitioner based her petition on section 112 of Act No. 496 and offered
to file a bond of P5,000, the estimated value of the above mentioned property to
answer for such contingent claims.

The pertinent part of said section 112 of Act No. 496 provides:

SEC. 112. * * * Any registered owner or other person in interest may at any
time apply by petition to the court, upon the ground that registered interests
of any description, whether vested, contingent, expectant, or inchoate, have
terminated and ceased; or that new interests have arisen or been created which
do not appear upon the certificate; * * * and the court shall have jurisdiction
to hear and determine the petition after notice to all parties in interest, and
may order the entry of a new certificate, the entry or cancellation of a
memorandum upon a certificate or grant any other relief upon such terms and
conditions, requiring security if necessary, as it may deem proper; * *
*.”

According to the above quoted provisions, the court “may order the entry of a
new certificate, the entry or cancellation of a memorandum upon a certificate or
grant any other relief upon such terms and conditions, requiring security if
necessary,” upon application of a registered owner on “the ground that
registered interests of any description, whether vested, contingent,
expectant, or inchoate, have terminated and ceased, or that new
interests have arisen or been created which do not appear upon the
certificate.” Applying these provisions to the present case, it is evident
that, since the registered or annotated contingent interest of the creditors or
other heirs of the petitioner’s predecessors in interest, established by section
4 of Rule 74, has not yet terminated or ceased, for the period of two years from
July 9, 1947, have not yet elapsed, the respondent judge had no jurisdiction or
power to order the cancellation of said lien or annotation as prayed by the
petitioner. Neither section 4, Rule 74, of the Rules of Court, nor section 112
of Act No. 496 authorizes the substitution of a bond for a lien or registered
interest of any description, whether vested, expedient, inchoate or contingent,
which have not yet terminated or ceased.

In view of the foregoing, it is plain that the respondent judge has not acted
in excess of jurisdiction nor with grave abuse of discretion, but in conformity
with the law, in denying the petitioner’s petition, and the petition for
certiorari is therefore denied.

Moran, C.J., Paras, Pablo, Hilado,
Briones, Padilla, and Tuason, JJ., concur.

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PERFECTO, J.:

Although the title of the petition indicates that what is prayed for is a
writ of certiorari, in effect, the petition is for a writ of
mandamus, because what is sought by petitioner is that the lower court be
ordered to exercise its discretion in allowing petitioner to file a bond of
P5,000 and to order the cancellation of the Hen appearing at the back of the
Torrens title of the property of petitioner.

There being no law under which the lower court is duty bound to exercise its
discretion in the sense prayed for by petitioner, in our opinion the petition
should be denied.

Petitioner wants that the lien in the title making the property subject to
the claims of the creditors and heirs of the deceased original owners, Jose
Rebong and Maria Rebong, within two years from July 9, 1947, be cancelled and in
lieu thereof that a bond in the sum of P5,000 be authorized to answer for any
such claim of the creditors and heirs of said original owners.

While no provision of law is invoked by petitioner in support of her prayer,
she alleges as reasons, (a) that the rights of third persons whose claims
are cancelled by the lien are merely contingent, expectant and inchoate;
(b) that the dominical rights of petitioner would greatly be hampered as
she cannot transact or deal with the real estate property with third persons;
and (c) that the bond, in the event that there exist claims against it
within a period of two years will answer for such eventuality, so much so that
no right of third persons will really be prejudiced.

Petitioner alleges that when she filed the petition on July 14, 1947, with
the lower court she alleged that she desired to cancel the annotation of the
lien “in order to mortgage the property to a bank.”

Petitioner’s reasons are unconvincing.

If her intention in seeking the cancellation of the annotated lien is to have
an opportunity to mortgage the property to a bank so as to obtain a loan, the
purpose can be accomplished without the cancellation prayed for. If petitioner
can secure sureties willing and able to answer for the amount of P5,000, we do
not see any reason why she cannot obtain from a bank a loan with the same
sureties. If they can offer a good guarantee for the bond of P5,000, surely they
can offer a good guarantee in favor of a bank for a loan that petitioner may
apply for.

For all the foregoing, we concur in the dismissal of the
petition.