TEODORO OSORIO, PLAINTIFF AND APPELLANT, VS. TRANQUILINO TAN JONGKO AND PE BON UY, DEFENDANTS AND APPELLEES.

Appeal from the Court of First Instance of Antique, Judge Enrique Maglanoc,
whose. order of December 19, 1952, dismissed the plaintiff’s complaint upon two
grounds: no cause of action, and prescription. The order was issued upon motion
of defendants, filed after they had been served with summons.

Such complaint, dated November 15, 1952, alleged in short, that defendant Tan
Jongko, on May 2, 1941, had sold to Mm the four parcels of land described
therein; that two parcels had been delivered; that the other two had not, and
continued in possession of the defendants; that plaintiff had paid part of the
purchase price, and was willing to pay the balance of P800, but the said seller
and the other defendant refused compliance with the contract, notwithstanding
several written demands, specially one made on December 5, 1950. Complainant
further averred that “according to the stipulations of the contract, defendant
Tranquilino G. Tan Jongko wai given the period of one year within which” to
deliver the two parcels with the “further stipulation that m case said vendor
should fall to comply “with his obligation, “plaintiff would have the right
either to rescind the contract or to ask for its specific performance.” Offering
to pay the balance of P800, plaintiff demanded delivery of the parcels, plus
damages.

This appeal may adequately be decided on the basis of prescription. The trial
judge as stated, held that plaintiff’s right of action, if any, had prescribed,,
We are of the, same opinion, and it becomes unnecessary to consider the other
ground of dismissal.

According to appellant’s brief, the following are the pertinent dates and
incidents:

“May 2, 1941.—Date of execution of contract Annex’ “A.”
May
2, 1942—Date cause of action accrued..
August 30, 1950—Date New
Civil Code took effect. (Po vs. Bonje, CA, 49 Off. Gaz., 1875.)
December
5, 1950.—Date written extra-judicial demand was made plaintiff-appellant
upon defendant-appellee Tan Jongko for the delivery of the two parcels of land.
(6th par., Complaint, R. A. p. 5.
November 21, 1952—Date this
complaint was filed.”

We agree with appellant that his cause of action to demand performance
accrued on May 2, 1942, i.e., one year after the execution of the contract. But
we cannot agree that such cause of action had not yet prescribed on November 15,
1952—more than ten years after May 2, 1942. Under Act 190 actions to enforce
written contracts or to recover real property prescribe after ten years.
(Sections 40 and 43.)

Appellant however contends that his extra-judicial demand for compliance on
December 5, 1959,—before the expiration of ten years—interrupted the
prescription, in accordance with provisions of the New Civil Code:

Art. 1155, The prescription of actions interrupted when they are filed before
the court, when there is a written extra-judicial demand by the creditors, and
when there is any written acknowledgment of the debt by the debtor.”

Inasmuch as such interruption was not recognized before the New Civil Code
^[1] the question arises: as to
prescriptions already running when the New Civil Code took effect, does a
written extra-judicial demand made, in December, 1950 interrupt the period of
prescription? The answer is no, because article 1116 of the same New Civil Code
provides, “prescriptions already running before the effectivity of this Code
shall be governed by the laws previously in force,” i.e., by Act No.
190 and the rulings applicable; and as already stated, extra-judicial demands
did not interrupt.

Appellant however, arguing for interruption, cites article 2258 New Civil
Code providing that:

“Actions and rights which came into being but were not exercised before the
effectivity of this Code, shall remain in full force in conformity with the old
legislation; but their exercise, duration and the procedure to enforce them
shall be regulated by this Code and by the Rules of Court. If the exercise, of
the right or of the action was commenced under the old laws, but is pending on
the date this Code takes effect, and the procedure was different from that
established in this new body of laws, the parties concerned may choose which
method or course to pursue.”

Obviously, he has failed to notice that Article 2258 is found in the title on
Transitional Provisions, the first article of which says, “For the determination
of the applicable law in cases which are not specified elsewhere in
this Code, the following articles (2253 down to 2258 and other subsequent
articles) shall be observed.” Since the law applicable is “specified elsewhere”
in the, New Civil Code, in article 1116—therefore, article 2258 does not govern
the situation.

The same comment on inapplicability affects Article 2253, new Civil Code,
which is likewise invoked by appellant. Besides, said artide refers to acts or
events occurring before the New Civil Code. Here is the article,

“Art. 2263. The Civil Code of 1889 and other previous laws shall govern
rights originating, under said laws, from acts done or events which took place
under their regime, even though this Code may regulate them in a different
manner, or may not recognize them. But if a right shouId be declared for the
first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred under the
prior legislation, provided said new right does not prejudice or impair any
vested or aquired right, of the same origin.”

The act on which appellant’s argument rests—the extra-judicial demand in
December, 1950—took place after the New Civil Code.

For all the foregoing, His Honor’s view on prescription being proper, the
appealed order of dismissal is affirmed. with costs against the appellant. So
ordered.

Paras, C.J., Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador,
Concepcion, and Reyes, J. B. L., JJ., concur.

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^[1] Pelaez vs. Abreu, 26
Phil. 415. In fact, even the presentation of a judicial action did not
interrupt. (Peralta vs. Alipio, 97 Phil., 719).