G.R. No. 19742. March 16, 1923

This case is now before the court upon a motion to dismiss the appeal. The
order appealed from recites all the material facts and reads as follows:

“This matter is before the court upon a motion dated October 6, 1920, filed
by Pastor, Encarnacion, Paz, and Manuel, all surnamed Sause, as heirs of Julio
Sause, praying that in conformity with the provisions of section 72 of Act No.
496, the administrator of the intestate estate of Clara Amarmas be ordered to
exhibit the duplicate of certificate of title No. 681 of lot 1298 of this
cadastral record issued in the name of Clara Amarmas. It is alleged in the
motion that during the lifetime of Clara Amarmas she sold ten hectares of this
lot 1298 to Julio Sause, also deceased, with right of repurchase, and that the
period of redemption having elapsed without the repurchase having been made, the
heirs of the purchaser Julio Sause, deceased, wish to have such sale with right
of repurchase noted on the said certificate of title, but the administrator of
the deceased Clara Amarmas refuses to present the same.

“This motion was opposed by Mateo Payva, administrator of the estate of Clara
Amarmas, deceased, on the ground that the heirs of the said deceased Julio Sause
had presented to the committee on claims their claim for the debt of the
deceased Clara Amarmas, which debt, it is alleged, was evidenced by a document
in the form of a sale with right of repurchase, and on account of which the
administrator has already paid the sum of P315; and that by the mere fact of the
heirs of the said Julio Sause, deceased, having presented their claim, they have
waived their right and elected to be included among the ordinary creditors and
to participate in the general assets of the inheritance. In support thereof he
cites the doctrine laid down in the case of Osorio vs. San Agustin (11
Off. Gaz., November 5, 1913, p. 1862).

“The said motion was overruled by the court on November 1, 1920, on the
ground that the heirs of Julio Sause have by waiver already lost the right
claimed by them.

“The heirs of Julio Sause on December 11, 1920, petitioned the court that
under the provisions of section 113 of the Code of Civil Procedure they be
relieved from the effects of the order entered by this court on November 1,
1920, and given an opportunity to present evidence showing that the claim before
said committee in the proceeding for the settlement of the testate estate of
Clara Amarmas had to do with another transaction and not with the contract of
sale with right of repurchase, copy of which is attached to their motion of
October 6, 1920.

“And after the filing of various pleadings of the administrator opposing this
motion, of a reply of the heirs of Julio Sause, and answer of the administrator
to said reply, the court on January 24, 1921, entered an order, setting aside
the order dated November 1, 1920, in accordance with the provisions of section
113 of the Code of Civil Procedure, and providing that the motion of the heirs
of Julio Sause dated October 6, 1920, be set for hearing to give them an
opportunity to prove the facts alleged in the said motion; and the matter having
been set down for hearing in pursuance to this order on March 30, 1922, for the
introduction of evidence, the following facts were established:

“That on July 8, 1916, Clara Amarmas executed a document of which Exhibit AA
is a certified copy, whereby she sold with right of repurchase to Julio Sause,
now deceased, his heirs and successors in interest, a parcel of land containing
10 hectares, which forms a part of lot 1298 and is described in the said
document, it having been stipulated that the redemption of the said land was to
be made within 3 years from the said date, that is, July 8, 1919, by repaying
the sum of P200, which was the purchase price, plus the expenses of the
contract; that the heirs of Julio Sause presented to the committee on claims in
the proceeding for the settlement of the estate of the deceased Clara Amarmas a
claim for the sum of P200, based on this same deed of sale with right of
repurchase; that no amount was paid from the estate of Clara Amarmas for the
repurchase of the land mentioned in the deed, nor does it appear that any action
was ever brought to effect such repurchase.

“The contention of the administrator now is that the heirs of Julio Sause
having presented to the committee on claims a claim for the sum of P200 based on
this deed of sale with right of repurchase, which sum of P200 is mentioned
therein as the purchase price, such an act implies a waiver on the part of the
said heirs of Julio Sause of their right under the sale with right of
repurchase, and that thereby they became mere ordinary creditors of the estate
of Clara Amarmas in the sum of P200. In support thereof the doctrine laid down
in the case of Osorio vs. San Agustin, supra, is cited.

“In deciding this question, it should be noted in the first place that there
is not, in the opinion of the court, any similarity between the present case and
that cited by the administrator of the estate. In that case, the correct title
of which is Osorio vs. Hernandez (11 Off. Gaz., November 5, 1913, p.
1862) there was involved a mortgage debt which was first presented by the
mortgage creditor to the committee on claims as such creditor and having failed
to obtain payment of his credit, he later brought an ordinary action for the
foreclosure of the mortgage. The Supreme Court held that having first presented
his claim to the committee on claims, he has waived his right as a mortgage
creditor, thus converting his credit into an ordinary one; whereas in the
present case it is alleged that the claim was presented by one of the heirs of
Julio Sause, deceased, so as to render the sale with right of repurchase made by
the deceased Clara Amarmas in favor of Julio Sause, also deceased, more
effective.

“It is proven that the period of redemption stipulated by and between the
deceased Clara Amarmas, as seller, and the deceased Julio Sause, as purchaser,
expired on July 8, 1919, approximately 15 months before the filing by the heirs
of Julio Sause of the motion under consideration.

“And by virtue of the conclusive provision of the law, and of the precise
terms of the deed of sale executed by the seller to the effect that ‘if said
period elapses without the right of redemption being exercised, this sale will
become absolute and irrevocable’ (verbatim), the expiration of the said period
without the seller having exercised the right of redemption which she had
reserved to herself operated the consolidation of the ownership of the buyer,
Julio Sause, and, therefore, of his heirs over the property sold. And this
property being the subject of a Torrens title, the movants are justified in
asking for the relief prayed for in their motion, the provisions of section 72
of Act No. 496 invoked by them.

“For the foregoing the motion is granted and it is ordered that the
administrator of the estate of the deceased Clara Amarmas surrender the
certificate of title of lot 1298 issued in favor of the deceased Clara Amarmas
to the Registrar of Deeds of this Province of Occidental Negros for the purposes
applied for in the motion in question.

“So ordered.”

The administrator of the estate of Clara Amarmas filed a motion for a new
trial, the motion was denied, and exception to ruling of the court noted,
whereupon the appellant presented his hill of exceptions. Thereafter, the
appellees filed a motion setting forth that the order in question was not
appealable and asking that the appeal be denied and the bill of exceptions
disapproved. This motion was denied by the court below, to which ruling the
appellees excepted.

The appellees now renew in this court their motion for the dismissal of the
appeal and maintain that the order appealed from having been issued upon a
motion presented under section 72 of the Land Registration Act, it is not
subject to appeal. The section referred to reads as follows:

“In every case where an attachment or other lien or adverse claim of any
description is registered, and the duplicate certificate is not presented at the
time of registration to the register of deeds, he shall within twenty-four hours
thereafter send notice by mail to the registered owner, stating that such paper
has been registered, and requesting him to send or produce the duplicate
certificate in order that a memorandum of the attachment or other lien or
adverse claim shall be made thereon. If the owner neglects or refuses to comply
within a reasonable time, the register of deeds shall suggest the fact to the
court, and the court, after notice, shall enter an order to the owner to produce
his certificate at a time and place to be named therein, and may enforce the
order by suitable process.”

There is some merit in the appellee’s contention that orders requiring the
holder of a duplicate certificate to surrender the same for the annotation of an
attachment or other lien or adverse claim under the section quoted is not
appealable, and if the order here in question were merely a routine order of
that character, we might well agree with him. But the order in this instance
goes much farther; it resolves important questions as to the respective rights
of the parties, questions not definitely adjudicated previously to its issuance,
and requires the surrender of the certificate of title for an operation which
will carry with it, as a necessary consequence, the eventual cancellation of the
surrendered certificate and the issuance of a new one in favor of a different
owner. That an appeal may be taken to this court from such an order admits of no
doubt.

The motion is therefore denied.

Araullo, C.J., Street, Malcolm,
Avanceña, Johns, and Romualdez, JJ., concur.