PACIFICO S. ASICO AND EMMA B. DE ASICO, PETITIONERS-APPELLANTS, VS. CARMEN VASQUEZ TRINIDAD, OPPOSITOR-APPELLEE.

On August 6, 1952, Pacifico S. Asico and his wife Emma B. de Asico filed in
the court of first instance of Negros Occidental, a verified petition for the
reconstitution, under Republic Act No. 26, of the original as well as the
owner’s duplicate of Transfer Certificate of Title No. 17920 in the name of
Hilarion Martir, covering Lot No 990 of the Bago Cadstre, same province.

Publication and notices were duly made. None opposed the petition. Evidence
was submitted proving the following facts:

Lot No. 990 of the Bago Cadastre was originally decreed and registered in the
name of Gododredo Gison (Original Title No, 4193). Upon the latter’s death, it
was inherited by Amparo Gison, in whose favor Transfer Certificate of Title No.
179191 was issued upon cancellation of the original title. This Transfer
Certificate was subsequently substituted, on July 18, 1936, with another
transfer certificate of title No. 17920 in the name of Hilarion Martir, widower,
who had purchased the land from Amparo Gison. On August 13, 1938, Hermogenes
Martir, as heir of Hilarion Martir, mortgaged the land to Soledad Jalandoni and
the deed of mortgage was duly inscribed in the office of the Register of Deeds
on November 25, 1938, and was entered on the back of Transfer Certificate of
Title No. 17920. In February 1941, Soledad Jalandoni instituted foreclosure
proceedings, which in October 1950 culminated in the sale at public auction of
Lot No. 990, by the Provincial Sheriff, to the highest bidders, Pacifico Asico
and his wife, which sale was in regular course confirmed by the proper court and
recorded in the Registry of Deeds.

Now, there being no question that the original as well as the owner’s
duplicate of Transfer Certificate of Title No. 17920 had been lost during thu
last war, the court, in view of the evidence hereinabove outlined, ordered the
Register of Deeds, “to reconstitute the original as well as the owner’s
duplicate of Transfer Certificate of Title No. 17920 (in the name of Hilarion
Martir, widower, and resident of Bacolod, Negros Occidental), covering Lot No.
990 of Bago Cadastre, on the basis of the cancelled Transfer Certificate of
Title No. 17919 in the name of Amparo Gison (Exh. “C”), the Deed of Sale (Exh.
“H”) executed by said Amparo Gison in favor of Hilarion Martir, and on other
available records still existing in his office pertinent to the aforesaid
certificate of title, x x x Once the reconstitution herein ordered is duly
accomplished, let a 2nd owner’s duplicate certificate of title be issued to the
petitioners.” (Record on Appeal pp. 32-33).

However it inserted the proviso^[1]
that “all liens and encumbrances affecting the aforementioned property which
appear recorded in the Office of the Register of Deeds to be existing at the
time of the loss or destruction of the said certificate of title shall be
annotated on the reconstituted title”.

Objecting to this proviso, the petitioners filed a motion to reconsider,
contending that it amounted to an undue delegation of judicial power to the
Register of Deeds, in that the latter was authorized thereby to reconstitute
other liens or encumbrances not duly proven before the court. Besides,
petitioners’ argued, if the proviso is allowed to stand, “a situation may arise
where a contract affecting the property and entered in his Day Book, but NOT
NOTED ON THE CERTIFICATE OF TITLE, for some reason or another perhaps because
the owner’s copy was not surrendered at the time of its presentation – may be
reconstituted by the Register of Deeds on the Certificate of Title.” (Record on
Appeal pp. 39-40)

Before the motion could be acted upon, Carmen Vasquez Trinidad entered her
appearance, and opposing the motion, she alleged that Kormogenes Martir had sold
the same property to her, with pacto de retro on May 23, 1940, the deed
of sale having been registered in the office of the Register of Deeds of Negros
Occidental on May 24, 1940, as entry No. 1128. In another motion, she alleged
that her failure to appear at the hearing of the petition for reconstitution was
not due to her fault or negligence (for reasons not neces sary to mention here).
She therefore petitioned for a chance to prove her allegation of sale with
pacto de retro.

The motion of the Asicos, and the motion of Vasquez were both denied. The
first appealed in due tine; but the second did not. She even failed to submit a
reply to appellant’s brief in this Court.

We believe the petitioners had good reasons to object to the proviso inserted
by the court. For one thing, the purpose should be to reconstitute the title No.
17920 as it was when lost, And the evidence shows the only incumbrance
annotated thereon was the mortgage in favor of Soledad Jalandoni. (p. 32 Record
on Appeal). Other encumbrances recorded in the Office of the Register of Deeds
but not transcibed on said title are naturally beyond the scope of the
proceedings.

If it be argued that the proviso was intended to protect other incumbrances
annotated on said title but not proven in this expediente, the answer
would be: Such encumbrances are either foreclosed by this proceeding because not
presently shown, or they are not affected and may afterwards be proven in other
subsequent petitions. If the first, the proviso is clearly erroneous; if the
second, it is unnecessary.^[2]

We may therefore uphold the petitioners1 objection, specially because,
probably the only encumbrance to be effected is that asserted by Carmen Vasquez
Trinidad, which encumbrance practically became meaningless for two reasons: (a)
having failed to appeal from the order denying her motion to establish it, she
lost all her rights, if any; (b) and said sale having been executed after the
registration of the mortgage of Jalandoni, it is subordinate to such
mortgage, and to the rights of purchasers at the public auction resulting from
the foreclosure, i.e., the Asico spouses.

Another amendment which petitioners desired in their motion to reconsider was
the annotation, on the reconstituted title, of the mortgage by Hermogenes Martir
in favor of Soledad Jalandoni. It is obvious that inasmuch as said mortgage and
annotation had been duly proven the court should have instructed the Register of
Deeds to annotate such encumbrance on the duplicate certificate to be
issued.

Wherefore, with the elimination of the proviso, and the annotation of
Jalandoni’s mortgage, the appealed order is affirmed with costs against
appellee. So ordered.

Pablo, Montemayor, Reyes, Bautista Angelo, Labrador, Concepcion, and
Reyes, J.B.L., JJ., concur.

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^[1] This is the main issue before us.

^[2] This particular point will be
decided if and when other petitions to note such encumbrances are hereafter
made.