ATANACIA PERALTA, FRANCISCO PAGADUAN, DIONISIA PAGADUAN, ASSISTED BY HER HUSBAND, MARIANO MIGUEL, MATILDE PAGADUAN, ASSISTED BY HER HUSBAND ADELINO JACINTO, PLAINTIFFS AND APPEL…

The above entitled case was submitted for decision upon an agreed statement
of facts, from which the following appear:

Plaintiff Atanacia Peralta is the widow of Juan Pagaduan, who was the
registered owner of a cadastral lot No. 3782 of Gattaran, Cagayan. This property
was acquired by Pagaduan under a Homestead Patent No. 49801, dated September 8,
1938, and Certificate of Title No. 2533, which was later cancelled and
substituted by Transfer Certificate of Title No. 1110 of Cagayan issued in his
favor. On August 1, 1947, Juan Pagaduan sold the land for P4,200. On September
17, 1951, the widow and her children by Juan Pagaduan, who had already died,
brought an action (Civil Case No. 467-A, Cagayan), to compel the defendant to
reconvey the land, but this action was dismissed without prejudice by the court
on March 11, 1952. The present case was brought on November 1, 1952.

The defendant claims that the five-year period for the repurchase of the land
had already expired, because more than five years elapsed from the date of the
sale on August 1, 1947 to the filing of the present action on November 1, 1952,
while the plaintiffs contend that the running of the period for filing the
present action was interrupted by the presentation of the previous case filed in
court in accordance with Article 1155 of the New Civil Code. The trial court
overruled the objection of the defendant but held that the dismissal of the
action without prejudice amounts to a judicial permission to the plaintiffs to
renew the action within a reasonable period of time. The defendant also claims
that, before the filing of the action, the plaintiffs made a demand for
reconveyance and that they offered payment of the repurchase price, and that
neither did they consign the said price. The trial court also overruled this
defense, holding that the provisions regarding pacto de retro contained
in the New Civil Code are not applicable. The court, therefore, ordered the
defendant to reconvey the land to the plaintiffs upon payment by the latter to
the former of the amount of the purchase price.

The appeal was certified to this Court by the Court of Appeals for the reason
that only questions of law are involved. It is contended on this appeal that
under Article 1946 of the Old Civil Code judicial summons shall not give rise to
interruption, if the plaintiffs should desist from the complaint as in this
case. In answer to this contention, the appellees invoke Article 1155 of the New
Civil Code, providing that the prescription of actions is interrupted when they
are filed before the court. Neither contention is correct. As the sale of the
land took place before the New Civil Code came into effect, the statute of
limitations applicable is that contained in the Code of Civil Procedure (Act
190) (Article 2258, New Civil Code).

The statute of limitations contained in the old Code of Civil Procedure (Act
No. 190) contains no specific or express provision on the suspension or
interruption of the running of the period of prescription by the institution of
an action. There is a firmly established rule in many American states that the
commencement of the suit prior to the expiration of the applicable limitation
period interrupts the running of the statute as to all parties to the action (34
Am. Jur., Sec. 247, pp. 202-203). This rule is similar to that contained in
Article 1155 of the New Civil Code. This principle, however, does not appear in
Act No. 190, our old statute of limitations, which is taken from Ohio. On the
contrary, the provisions of section 49 (Act 190) disclose otherwise. This
section reads as follows :

“Sec. 49. Saving in Other Cases.—If, in an action commenced, in due
time, a judgment for the plaintiff be reversed, or if the plaintiff fail
otherwise than upon the merits, and the time limited for the commencement of
such action has, at the date of such reversal or failure, expired, the
plaintiff, or, if he die and the cause of action survive, his representatives
may commence a new action within one year after such date, and this provision
shall apply to any claim asserted in any pleading by a
defendant.”

The above-quoted provision indicates that the principle of interruption of
the period of limitations was not adopted in our statute. There would be no need
of an express provision authorizing the filing of the action after the
termination of the original period, if the principle of interruption had been
adopted, because under the principle of interruption or suspension, the period
used up in the determination of an action, which is dismissed, will have to be
deducted from the entire period of limitations. This court has held in two
leading cases that the filing of an action within the prescription period, if
the plaintiff desists in its prosecution, does not suspend the running of the
statute.

“An action which was clearly for recovery of personality or damages for
taking or removal of such property had nonetheless prescribed where the fourth
complaint, on which it was founded, was not filed until more than 4 years after
the cause of action accrued, because of three prior attempts to maintain such
actions instituted within the limitation period and with respect to which stays
of proceedings were obtained or plaintiff failed to prosecute. Although an
action is started within the prescription period, if the plaintiff desists in
its prosecution or judgment is unconditionally stayed for one reason or another,
running of limitations is not suspended. [Code of Civil Procedure, Sec. 43, par.
3].” (Oriental Commercial Co. vs. Jureidini, Inc., 1940, 71 Phil.,
25.)

“The commencement of a civil action stops the running of the statute of
prescription or limitations. Its dismissal, however, or voluntary abandonment by
the plaintiff leaves the parties in exactly the same position as though no
action had been commenced at all. The commencement of the action, by reason of
its dismissal, or abandonment, takes no time out of the period of prescription.
When an action is commenced within the period of limitation (prescription) and
is abandoned or dismissed by reason of the death of the plaintiff, the operation
of the statute is prevented if the suit is commenced within a reasonable time by
the representatives of the deceased. Failure to carry the suit on, by the
personal representatives, when the same has been dismissed or abandoned by the
deceased, will amount to an abandonment’.’ (Conspecto vs. Fruto, 31
Phil., 144.)

Following the above quoted cases and applying them to the case at bar, we
hold that the filing of the first suit did not operate to suspend the period of
limitations or interrupt the running thereof, and the period used up in the
determination of the previous action (brought on September 17, 1951 and
dismissed without prejudice on March 11, 1952) is not to be discounted from the
total period of the statute. To this effect is our ruling in the case of Santos
vs. Vera, 69 Phil., 712, where we held:

“Dados los hechos que se acaban de relatar, resulta claro que la decision de
31 de diciembre de 1938 no ha aplicado con acierto las disposiciones del
articulo citado. Desde que se sobreseyo la primera demanda de la recurrente por
falta de pago de derechos hasta la expiracion del periodo de prescripcion de
diez aiios, Ie quedaban oun a dicha recurrente cinco meses y diez dias, tiempo
mas que suficiente sin esperar que transcurriese dicho periodo de diez anos. Por
manera que el caso de la recurrente no estaba comprendido dentro de la salvedad
a que el srticulo 49 se refiere. Esto es asf, porque tratandose como se trataba
de una excepcion, la misma no debia ni debe ser interpretada con liberalidad
sino con estrictez. Es unicamente en los casos en que el periodo de prescripcion
haya transcurrido antes de dictarse un auto de sobreseimiento o una sentencia,
independientemente de los meritos de la causa, cuando procede dar aplicacion a
la mencionada excepcion de la ley. (Tolentino contra Vitug, 39 Jur. Fil. 134.)
Asi interpretada la ley, tenemos que cuando la recurrente presento su segunda
demanda, hacia tiempo que su accion habia prescrito. En este mismo sentido
resolyio el Juzgado de origen la cuestion, mediante au Resolution, objeto de
certiorari.”

It appears, therefore, that when the second action was brought on November 1,
.1952 the period of limitations had already fully expired. The ruling of the
court that the dismissal of the previous suit without prejudice amounted to a
judicial permission to file the second suit has no foundation or support in law.
The period for the repurchase of the homestead is fixed by law, and the same may
not be extended by judicial action. The ruling of the court that the action
could still be brought is, therefore, incorrect.

The other assignments of error need but a passing mention. The claim that as
the Public Land Law (C. A. 141) contains no provision regarding the manner of
repurchase of homesteads or free patents, the provisions on conventional
redemption should be made to apply as supplementary law is absolutely without
merit. The Public Land Law does not fix the form and manner in which
reconveyance may be enforced, nor prescribe the method and manner in which
demand therefor should be made; any act which should amount to a demand for
reconveyance should, therefore, be sufficient.

As to the claim for damages for attorney’s fees on defendant’s counterclaim,
the mere fact that plaintiffs have not made a denial of the said claim is no
reason why the defendant is entitled thereto. The circumstance mentioned in
paragraph (4) of Article 2208 of the New Civil Code has not been proved; the
filing of this second action is not entirely unfounded as the trial judge
himself had thought that the action was still available because the dismissal of
the first case was without prejudice.

The judgment appealed from is hereby reversed, and the defendant absolved
from the complaint. With costs, in both instances, against the
plaintiffs-appellees.

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