DOMINICO ETCUBAN, PETITIONER, VS. THE HONORABLE COURT OF APPEALS, JESUS C. SONGALIA & GUADALUPE S. SONGALIA, RESPONDENTS.

Before Us is a petition to review
the judgment of the respondent Court of Appeals^[1] in CA-G.R. No. 53258-R reversing the
decision of the court a quo in Civil Case No. BN-109, entitled Dominico Etcuban vs. Jesus G. Songalia, et. al., by
ruling that plaintiff-appellee (petitioner herein)
failed to avail himself of the right of legal
redemption within the period provided for by law.

Plaintiff inherited a piece of land with an area of
approximately 14.0400 hectares together with his co-heirs from
their deceased father.  Said piece of land was declared in their
names as heirs of Eleuterio Etcuban under Tax Declaration No. 06837 and was the subject
matter in dispute in SP No. 1192-R, of the Court of First Instance of Cebu, a case for the settlement of the estate of the
late Eleuterio Etcuban.  In said case, petitioner Dominico Etcuban, the spouse of
the deceased, Demetria Initan, and Pedro, Vicente, Felicitas, Anastacio, Froilan, Alfonso, Advincula, Anunciacion, Jesus, Aguinaldo, all
surnamed Etcuban were declared as co-owners of the
property in question.  Thereafter the 11 co-heirs executed in favor
of defendants (private respondents herein) 11 deeds of sale of their respective
shares in the co-ownership for the total sum of P26,340.00.  It is not disputed that the
earliest of the 11 deeds of sale was made on December 9, 1963 and the last one in
December 1967.  (Annexes “1 – 11”).

In his complaint before the trial court, plaintiff alleged
that his co-owners leased and/or sold their respective shares without giving due
notice to him as a co-owner notwithstanding his intimations to them that he was
willing to buy all their respective shares.  He further
maintained that even upon inquiry from his co-heirs/co-owners, and also from the
alleged buyers (defendants) he elicited nothing from them. 
Plaintiff discovered for the first time the existence of these 11 deeds
of sale during the hearing on January
31, 1972 of Civil Case No. BN-87, entitled Jesus C. Songalia vs.
Dominico Etcuban in the Court of First
Instance of Cebu, Branch XI.  When he verified the
supposed sales with his co-owners only 3 of them admitted their respective
sales.  Hence, the filing of Civil Case
No. BN-109 by petitioner for legal
redemption.

Defendants (private respondents herein) in denying the material
allegations of the complaint, argued by way of affirmative and special defenses
that plaintiff has no cause of action against them; that the action is barred by
prescription or laches; that the complaint is barred
by the pendency of Civil Case No. BN-87 involving the
same parties, same subject matter and same cause of action; that the provisions
of the law pertaining to legal redemption have been fully complied with in
respect to the sale of the disputed land to them; that plaintiff came to know of
the sale of the land in question to them in August, 1968 or sometime prior
thereto; that acting on this knowledge, plaintiff thru his lawyers wrote
defendants on August 15, 1968 about the matter; that Jesus Songalia personally went to the office of Atty. Vicente
Faelner or counsel for plaintiff to inform him of the
sale of the disputed land to them; that again another demand letter was received
on May 30, 1969 by defendants from the lawyers of plaintiff but on both
occasions, no action was taken by plaintiff despite the information plaintiff
received from defendants thru his counsel and that consequently plaintiff lost
his right to redeem under Art. 1623 of the new Civil Code because the right of
redemption may be exercised only within 30 days from notice of sale and
plaintiff was definitely notified of the sale years ago as shown by the
records.

During the pre-trial conference, the parties failed to agree on
any stipulation of facts.  Judgment was rendered after due trial
with the following dispositive
portion:

“WHEREFORE, JUDGMENT is hereby rendered in favor of the plaintiff and against
the defendants as follows:

1. Allowing the plaintiff to exercise his right of redemption over the land in
   question;

2. Ordering the defendants to accept the redemption price of P26,340.00 which
   plaintiff should deposit with this Court within 30 days from and after this
   decision becomes final and executory and thereafter to
   execute a deed of reconveyance in favor of the
   plaintiff and to surrender the possession and ownership of the property in
   question to the plaintiff; and

3. The defendants are ordered to pay the
   costs.”

Defendants appealed to the Court of Appeals assigning several
errors but the appellate court centered its dissertation on the first assignment
of error as the issue to be most decisive and, therefore confined its
discussion to it.

Defendants in their first assignment of error assailed the lower
court in not holding that the failure of the plaintiff-appellee to tender to the defendants-appellants the
redemption price or to consign the same in court or to make a specific offer to
redeem the property before filing the complaint for legal redemption has barred
the appellee’s right to redeem the property pursuant
to the doctrine of the Supreme Court in Conejero vs. Court of Appeals (16 SCRA
775).

The appellate court in tackling this issue declared that plaintiff
failed to make a valid tender of the sale price of the land paid by the
defendants within the period fixed by Art. 1623 of the Civil Code which provides
as follows:

“ART. 1623.  The right of legal pre-emption or
redemption shall not be exercised except within thirty (30) days from the notice
in writing by the prospective vendor, or by the vendor, as the case may
be.  The deed of sale shall not be recorded in the Registry of
Property, unless accompanied by an affidavit of the vendor that he has given
written notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of adjoining
owners.  (1524a)”

The respondent court found that written notice was given to
plaintiff-appellee in the form of an answer with
counterclaim to the complaint in Civil Case No. BN-109 which
appears on the records to have been filed on March 18,
1972.  Said court ruled that
“this notice is sufficient to inform the plaintiff about the sale and the
reckoning date for the 30-day period commenced upon receipt thereof. 
No other notice is needed under the premises because it is the substance
conveyed rather than the form embodying it, that
counts.”

The records reveal that on May 27, 1974, plaintiff-appellee deposited with the lower court the amount of
P26,340.00 the redemption price.  Since
the answer with counterclaim was filed on March 18, 1972, the deposit made on
May 27,
1974 was clearly outside the 30-day period of legal
redemption.  The period within which the right of legal redemption
or preemption may be exercised is non-extendible.

Petitioner contends that vendors (his co-heirs) should be
the ones to give him written notice and not the vendees (defendants or private
respondent herein) citing the case of Butte vs. Manuel Uy & Sons, Inc. 4 SCRA
526.  Such contention is of no moment.  While
it is true that written notice is required by the law (Art. 1623), it is
equally true that the same “Art. 1623 does not prescribe any particular form of
notice, nor any distinctive method for notifying the
redemptioner.” So long, therefore, as the latter is
informed in writing of the sale and the particulars thereof, the 30
days for redemption start running, and the redemptioner has no real cause to complain. (De Conejero et al v. Court of Appeals, et al 16 SCRA
775).  In the Conejero case, We ruled that the furnishing of a copy of the disputed deed
of sale to the redemptioner, was equivalent to the
giving of written notice required by law in “a more authentic manner than any
other writing could have done,” and that We cannot adopt a stand of having to
sacrifice substance to technicality.  More so in
the case at bar, where the vendors or co-owners of petitioner stated under oath
in the deeds of sale.  (Annexes “1 to 11”) that notice of
sale had been given to prospective redemptioners
in accordance with Art. 1623 of the Civil Code. 
“A sworn statement or clause in a deed of sale to the effect that a
written notice of sale was given to possible redemptioners or co-owners might be used to determine
whether an offer to redeem was made on or out of time, or whether there was
substantial compliance with the requirement of said Art. 1623.”^[2]

In resume, We find
that petitioner failed to substantially comply with the requirements of
Art. 1623 on legal redemption and We see no reason to
reverse the assailed decision of the respondent Court.

WHEREFORE, premises considered, the
petition is hereby DISMISSED and the appealed decision is hereby
AFFIRMED.

SO ORDERED.

Alampay,
Gutierrez, Jr., Padilla, Bidin, and Cortes, JJ.,
concur.

Fernan, J.,
(Chairman), No part — acted as counsel for Guadalupe S. Songalia in other cases.

^[2] Annotations on Legal Redemption in
relation to the case of Butte vs. Manuel Uy & Sons, Inc.,
4 SCRA 964 by Judge Domingo Lucenario citing the case
of Cabacungan, et al. vs. Corrales, et al
95 Phil. 919.