JOVENCIO CONCHA AND EULALIA P. CONCHA, SPOUSES, PETITIONERS, VS. HON. JOSE C. DIVINAGRACIA, JUDGE, COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH VII, SAN CARLOS CITY, FER…

Petition for certiorari, to annul and set aside an order
of the respondent court ordering the herein petitioners to deliver a certain
parcel of land to the private respondents to allegedly conform with this Court’s decision in Civil Case G.R. No. L-17966, entitled:  “Fermin de la Victoria, et al.,
petitioners, versus Levy Hermanos, Inc., et al., respondents,” and
prohibition, to restrain the execution of said order.

On June 5, 1951, the spouses Fermin de la Victoria and Concepcion
Nemenzo, Juan Ortega, Marcelino Ortega, and Irenea Ortega, thru her guardian ad litem Juan Ortega filed an action with the Court of
First Instance of Negros Occidental against Levy Hermanos, Inc. and the spouses
Jovencio and Eulalia Concha for the annulment of the foreclosure of mortgage
proceedings in Civil Case No. 8176 of the Court of First Instance of Negros
Occidental and to be declared the absolute owners of Lot No. 121-A2-C-2-A of
the San Carlos Cadastre.  The plaintiffs
further prayed that the defen­dants be sentenced to pay damages.^[1]

After hearing the parties, the court dismissed the complaint;
declared the defendant spouses Jovencio and Eulalia Concha the owners of that
portion of Lot 121-A formerly belonging to Juan,
Anacleto, Marcelino, and Irenea, all surnamed Ortega, covered by TCT No. RT­-1349;
and ordered the spouses Fermin de la Victoria and Concepcion Nemenzo to deliver
possession of the property or whatever part thereof is actually occupied by them to the spouses Jovencio and Eulalia
Concha.  On appeal, the judgment was
affirmed in toto.^[2]

Upon a review of the case,^[3]
however, this Court found that the spouses Fermin de la Victoria and Concepcion
Nemenzo had earlier taken possession of a portion of the land corresponding to
the total 2/8 pro indiviso
shares of Anacleto and Marcelino Ortega, in good faith, and erected thereon two
buildings, one used for residential, and the other for commercial purposes; and
that the aforenamed spouses have not been duly impleaded in the foreclosure
case so that the said spouses cannot be deprived of the possession of the two
buildings without due process; and the judgment was modified “in the sense
that Civil Case No. 8176 of the Court of First Instance of Negros Occidental is
declared without effect insofar as the right, interest and parti­cipation of
spouses Fermin de la Victoria and his wife Concepcion Nemenzo over Lot 121-A of
San Carlos Cadastre is concerned, especially the portion belonging to them as
well as the improvements they construct­ed thereon.”

In due time, the records of the case were remanded to the lower
court for execution.  To enforce the
judgment, the respondent court issued an order on September 20, 1966 ruling
that “the area which should pertain to Fermin de la Victoria is only
2,062.82 square meters,” and “(T)his area
must be satisfied and delivered to Fermin de la Victoria from the portion of
Lot 121 presently occupied by Jovencio Concha and which adjoins the portion
presently occupied by Fermin de la Victoria.”^[4]

The defendant spouses Jovencio and Eulalia Concha filed a motion
for the reconsideration of the aforesaid order stating, among others, that the
decision of this Court did not mention a specific portion of Lot 121 which
should be adjudicated to the plaintiff spouses Fermin de la Victoria and
Concepcion Nemenzo other than that portion wherein the latter had erected their
residential and commercial buildings and made improvements thereon; that said
decision did not give the plaintiff spouses the right to choose which portion
of Lot 121 should pertain to them; and that to take the portion presently
occupied by defendant spouses will not satisfy the judgment because the
defendants are only occupying a portion with an area of 600 sq. m., more or
less.^[5]
After conducting an ocular inspection of the pre­mises, the respondent court
denied the motion on December 16,
1966.^[6]

Whereupon, the spouses Jovencio and Eulalia Concha filed the
present petition, claiming that the respondent court had varied the terms of
the executory judgment without or in excess of its jurisdiction, and that there
is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course
of law other than the present petition.

There is merit in the petition. 
The respondent court correctly held, in its order dated September 20,
1966, that the area which should pertain to Fermin de la Victoria and his wife
is only 2,062.82 sq. m. because this area corresponds to the total 2/8 pro
indiviso shares of Anacleto and Marcelino Ortega in Lot 121-A of the San
Carlos Cadastre which were sold to Fermin de la Victoria and his wife and
wherein the latter spouses had erected their residential and commercial
buildings.  But, the respondent court
committed an error when it recognized the rights of said spouses Fermin de la
Victoria and Concepcion Nemenzo over other portions of Lot 121-A, thus altering
the terms of the executory judgment.

In the modificatory decision, the Court recognized the rights of
Fermin de la Victoria and his wife over only that portion acquired by the said
spouses from Anacleto and Marcelino Ortega wherein they have erected two
buildings which they used for residential and commercial purposes.  The Court said:

“On the strength of the facts related above there is no
doubt that when the lot in question was mortgaged by the Ortegas on August 6,
1936 to Levy Hermanos, Inc. to secure the payment of a car which they had
purchased from it the right, interest and participation therein belonging to
Anacleto and Marcelino had already been conveyed to Fer­min de la Victoria and
his wife, and the cor­responding deeds of conveyance annotated on the back of
its title as a consequence of which said spouses took possession of the
portions conveyed to them and constructed thereon two buildings, one for
residence and the other for business. 
However, when the foreclosure case was instituted the company only
impleaded the Ortegas but failed to include Fermin de la Vic­toria and his wife
with the result that after the property was sold to Jovencio Concha and his
wife these spouses were declared with the right to take possession of the land
and eject therefrom Fermin de la Victoria and his wife.  This is now assigned as error by appellants.

“We find merit in this contention.  While it is
true that under Rule 70, Section 3, of our Rules of Court the sale of a
mortgaged property shall not affect the rights of persons holding prior
incumbrances prior to that of Levy Hermanos, Inc., it should not however be
overlooked that said spouses were placed immediately in possession of the land
after the conveyance and have erected thereon two buildings one for residence
and the other for business at their cost. 
Hence, said spouses cannot be deprived of the possession of the two
buildings without due process for apparently they acted on the matter in good
faith.  In fact, their possession
remained undisturbed until the foreclosure case was started by the Levy Hermanos,
Inc.  Evidently, the court a quo acted unfairly when it ordered
them to deliver to spouses Concha the possession of the property not being parties to the
case.”6

It thus results that the respondent court had no jurisdiction or
exceeded its jurisdiction in ordering the spouses Jovencio and Eulalia Concha
to deliver a definite portion of Lot 121-A of the San Carlos Cadastre to the
spouses Fermin de la Victoria and Concepcion Nemenzo, over and above that
recognized as pertaining to said spouses.

To restate, the spouses Jovencio and Eulalia Concha are the
owners of that portion of Lot 121-A formerly belonging
to Juan, Anacleto, Marcelino, and Irenea, all surnamed Ortega, covered by TCT
No. RT-1349, except that 2/8 pro indiviso
portion previously sold by Anacleto and Marcelino Ortega to Fermin de la
Victoria and his wife wherein the latter spouses had constructed two buildings.

WHEREFORE, the petition is granted and the orders
of respondent court in Civil Case No. 1970, dated September 20, 1966 and Dec­ember
16, 1966, are hereby ANNULLED and SET ASIDE. 
The parties are hereby ordered to effect a partition of that parcel of
land known as Lot 121-A of the San Carlos Cadastre, with an area of 8,250.50
square meters, covered by TCT No. RT-1349 of the Register of Deeds of Negros
Occidental in the names of Juan, Marcelino, Irenea, and Anacleto, all surnamed
Ortega, and submit the same to the trial court within thirty (30) days after
this decision shall have become final and executory, and should they fail
therein, the trial court should effect such partition in accordance with Rule
69 of the Revised Rules of Court.

SO ORDERED.

Barredo, (Chairman), Abad Santos, and
De Castro, JJ., concur.

Aquino, J., see attached
concurrence.

^[1]
Civil Case No. 1970.

^[2]  CA-G.R. No. 17874-R, Feb. 26, 1962.

^[3]
G.R. No. L-19766, August 31, 1965; 14 SCRA 996.

^[4]
Rollo, p. 16.

^[5]
Id., p. 17.

^[6]
Id., p. 20.

6 See Decision in G.R. No. L-19766, Aug. 31, 1965; 14 SCRA 996.

Clean
Clean

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