SEVERINA ROSALES AND PUREZA CONGZON, PLAINTIFFS AND APPELLANTS, VS. LEOCADIO S. TANSECO, ET AL., DEFENDANTS AND APPELLEES.

BENGZON, J.:

This is an appeal from the order of the court of first instance of
Samar, dismissing the plaintiffs’ complaint mainly on the ground of
prescription. The order was issued upon motion of the defendants, who
pointed out that the action sought the annulment of certain documents,
the latest of which had been executed in 1936, i.e. more than ten years
before the institution of the proceedings.

The complaint, filed in May 1947, is divided into three causes of action and makes the following material averments:

Plaintiffs are the widow and daughter, respectively, of Eustaquio
Congzon, who owned with his wife a piece of land with improvements in
Catbalogan, Samar. On August 15, 1927, defendant Leocadio S. Tanseco
prepared a fictitious mortgage of the land in favor of Tan Tay San,
which he made Eustaquio Congzon sign without consideration. That
document was subsequently cancelled to be substituted in May, 1930 by
another “mortgage”^[1] for
P26,000 in favor of defendant Tan Sun, which Eustaquio Congzon again
signed thru fraud and without consideration. On March 30, 1932 Tan Sun
transfer ed all his rights to defendant Tan Tay San, who in turn
assigned his interests to defendant Leocadio Tanseco in April, 1936.

For second cause of action the complaint incorporates the pertinent
allegations of the first, and asserts that the buildings on the lot
were totally burned in June 1942; that said buildings have always been
occupied by the mortgagees, and sever by Eustaquio Congzon; but that
the plaintiffs, who never enjoyed the possession and fruits of their
land, did satisfy taxes thereon amounting to P39,480.75.

In their third cause of action, the plaintiffs stated that from and
after the destruction of the buildings on June &, 1942, they were
in actual and quiet possession of the lot until June 1, 1946, when
defendant Leocadio Tanseco, thru force, intimidation and strategy, and
without their consent, occupied the property and constructed thereon a
house, all to their damage and prejudice.

Plaintiffs prayed that they be declared owners of the lot, that
the”mortgage”documents and assignments be annulled, and that Leocadio
Tanseco be ordered to vacate and pay damages and costs.

After some unimportant procedural incidents, the defendants
submitted a motion to dismiss, arguing that it was too late for
plaintiff to question the validity of the “mortgage” and the
assignments (more than ten years had elapsed) and as the said mortgage
had not been paid, the plaintiffs have no right to recover their
realty. The court sustained the defendants’ position. Hence this appeal.

His Honor was right in holding that, due to prescription,
plaintiffs are precluded from seeking avoidance of the “mortgage” and
its assignments on the grounds of fraud or lack of consideration.

But the second cause of action, although incompletely stated, makes
out a good case if construed in relation to the applicable legal
provisions.

As submitted to the court the “mortgage” in favor of Tan Sun
contained, in addition to ordinary stipulations, the following
agreement:

“Que el deudor hipotecario no pagara intereses por
la la cantidad adeudada, cediendo sin embargo su uso al acreedor
hipotecario sin ningun alquiler, y teniendo dicho acreedor hipotecario
derecho a percibir todos los alquilerea de la finca, mientras el deudor
hipotecario no pagare o hiciere pagar a Tan Sun totalmente su deuda.”

Therefore the contract although entitled “Escritura de Hipoteca” was in reality a contract of antichresis.^[2]

In a contract of antichresis the creditor is obliged to pay the
taxes on the property, unless the contract says otherwise (Art. 1682
Civil Code). The contract between Eustaquio Congzon and Tan Sun said
nothing about taxes. Hence it was the obligation of the creditor or
creditors to pay taxes on the property at issue herein.

Now, the second cause of action states that the debtor has paid for
taxes on the property the amount of P39,480.75. Bearing in mind that
the credit was only P26,000 it is plain to see that under the second
cause of action the plaintiffs affirmed in effect that they had already
discharged their debt (by advancing the taxes which the creditor should
have paid) and they are entitled to the return of their property free
from all encumbrance. At least there was good ground for accounting.
Consequently, it was error to dismiss upon a mere motion filed before
the answer.

Furthermore the third cause of action, posed the question. Where
the antichretic debtor peacefully in possession of the premises given
as guaranty is ejected thru force or strategy by the antichretic
creditor does he have a right of action?

Under the Civil Code every possessor is entitled to be respected in
his possession; and should he be disturbed therein he shall be
protected, or possession shall be restored to him, by the means
established by the laws of procedure (Art. 446). And a possessor,
however he may have acquired his possession, cannot be deprived thereof
without legal proceedings.^[3]
Nevertheless we shall not further pursue this line of inquiry, being
sufficiently convinced that plaintiffs have a valid claim under their
second cause of action, the allegations of which were provisionally
admitted by the motion to dismiss.

Wherefore the appealed order will be reversed and the record
remanded to the court a quo for further proceedings. Costs against
appellees.

Pablo, Padilla, Tuason, Reyes, Jugo, and Baustista Angelo, JJ., concur.
Paras, C.J., and Feria, J., took no part.

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^[1]
It is a deed of antichresis as explained later.

^[2]
Distor vs. Dorado 46 Phil. 162; Toquero vs. Villegas.

^[3]
Kincaid vs. Cabututan, 35 Phil. 35 Phil., 383; Rodriguez vs. Taiño, 16 Phil., 301; Belen, 13 Phil., 202; Rojas vs. Mijares, 9 Phil., 252.