APOLINAR TALENTO AND MARCIANA LIMUCO TALENTO, PETITIONERS, VS. EIGERO MAKIKI, BENITA ESCARTIN AND THE COURT OF APPEALS, RESPONDENTS.

This is a petition for review of a decision of the Court of Appeals
holding that the sale which gave rise to this action is valid and
binding between the parties and that, even if it were invalid, the
action cannot be maintained under the principle of pari delicto.

This action was instituted by spouses Apolinar Talento and Marciana
Limuco to annul a deed of sale executed by them on March 30, 1943 in
favor of Benita Escartin and Eigero Makiki of a homestead situated in
Abucay, Bataan. Basis of the action is the claim that Eigero Makiki, a
Japanese civilian, accompanied by his wife and one Antonio Navoa, went
to see the plaintiffs and, through intimidation, made them execute said
deed of sale, which they in fact did out of fear of possible
consequences to them if they should refuse his bidding. The price of
the property was P3,000, paid partly in Japanese notes and partly in
Philippine National Bank notes.

Defendant Eigero Makiki did
not appear, his whereabouts being unknown, and so he was declared in
default. Benita Escartin, his wife and co-defendant, appeared and
answered the complaint setting up as a defense that the facts alleged
therein were not true and that the action was presented in bad faith,
the purpose being merely to harass them, for which reason she asked
that plaintiffs be ordered to pay them damages in the amount of P2,500.

After trial, the court found that the sale was not executed through
intimidation as claimed in the complaint, and that, even if it were so
executed, it was purged of its defects by certain acts performed by the
plaintiffs which amount to its confirmation. The court dismissed the
action with costs against the plaintiffs. This decision was affirmed in toto by the Court of Appeals, and plaintiffs interposed the present petition for review.

In their first assignment of error, petitioners claim that “The Court
of Appeals erred in not holding that the deed of sale, Exhibit 1, was
executed as a result of intimidation committed by a Japanese,
respondent Eigero Makiki, considering the circumstances attendant to
its execution and the unequal conditions of the parties, the effect and
significance of which were overlooked”, to which counsel for
respondents counter with the argument that the question thus posed
merely raises questions of fact which, following well known precedents,
cannot now be acted upon by this court in the exercise of its appellate
jurisdiction. To this we agree. Matters affecting threat or
intimidation are questions which largely depend upon the credibility of
witnesses whose consistency has to be determined in the light of
surrounding circumstances, and this the Court of Appeals has done. We
find that the latter court has made a careful and conscientious study
of the evidence and has not overlooked any fact or circumstance of
substance or merit that may warrant a reversal of its finding. That
court found “that plaintiffs have failed to establish a cause of
action, which, according to law, should be an ‘irresistible force’ or
‘a reasonable and well-grounded fear of suffering an imminent and
serious injury’ to himself and his family”, and this finding is binding
upon this court.

The other assignments of error refer to
questions of law. Thus, it is intimated that the deed of sale should be
declared null and void for the reason that it was entered into between
petitioners who were Filipinos and respondents who were Japanese, and
as such it was a contract executed between enemies in time of war;
that, even if the sale be considered valid, it is, however, subject to
adjustment and settlement after the termination of the war according to
the Constitution adopted here by the Japanese-sponsored Philippine
Republic during the occupation and petitioners had offered to make such
settlement but it was not entertained by the Court of Appeals; and,
that the sale is null and void because it is in violation of the letter
and spirit of our present Constitution as interpreted by the Supreme
Court in the Krivenko case.

Before we pass on to consider
these different assignments of error, we wish to make a preliminary
comment which we believe important from the procedural point of view.
Note that the present action was exclusively predicated on the claim
that the sale which is now disputed is invalid because the consent
thereto of petitioners has been obtained by one Eigero Makiki through
intimidation. This is the only ground on which the action is
predicated. No other question of fact or of law has ever been raised in
the court of origin in an effort to dispute the validity of the
transaction. As a matter of fact, that was the only question considered
by the lower court. But when the case came up on appeal petitioners
raised new questions which were never raised before, and for this
reason the Court of Appeals made the following remark: “Pursuant to a
well established rule in this jurisdiction, such questions cannot be
raised for the first time on this appeal”, citing among other
authorities section 19, Rule 48, of the Rules of Court. Petitioners now
assign this as error upon the plea that being merely questions of law,
they need no be pleaded in the complaint.

The correctness of
this finding of the Court of Appeals can hardly be disputed. The ruling
invoked in support of its conclusion is well settled. Thus, “It is a
well-settled rule that no action will be considered by the appellate
court which has not been raised in the court below, except questions on
jurisdiction over the subject-matter which may be raised at any stage
of the proceedings. When, however, the jurisdiction depends upon a
question of fact, the question must be first raised and determined in
the court whose jurisdiction is in question. Questions on
constitutionality of law must, as a general rule, be raised in the
court below before they may be raised on appeal. The constitutionality
of Republic Act No. 342 cannot be made an issue on appeal, where
moratorium has not been invoked as a defense or as a ground for a
motion to dismiss.” (Moran, Comments on the Rules of Court, Vol. 1,
1952 ed., p. 970.)

But we will skirt this procedural
objection and will answer briefly the points raised by petitioners. In
the first place, the Constitution adopted by the Japanese-sponsored
Philippine Republic cannot be invoked to bolster up the pretense that
petitioners should be given the benefit of adjustment and settlement
provided for in said Constitution for the simple reason that the sale
in question took place on March 30, 1943, while the aforesaid
Constitution was adopted and put in operation only on September 4,
1943. This transaction cannot therefore be governed by the provisions
of said Constitution which was not yet in force at the time of its
execution.

In the second place, petitioners cannot invoke
the provisions of our present Constitution to bolster up their view
that the sale is unconstitutional for the simple reason that said
Constitution, as already stated by this court in a number of cases, was
not in force during the enemy occupation. (Trinidad Gonzaga de
Cabauatan, et al., vs. Uy Hoo, et al., 88 Phil. 103.)

And, in the third place, even assuming for the sake of argument that
the sale is null and void, either because it was entered into between
enemies in time of war, or is in violation of the letter and spirit of
our Constitution, we are of the opinion that petitioners are now
prevented from pressing its nullification because of their presumptive
knowledge that the transaction was tainted with invalidity. In other
words, petitioners are now prevented from maintaining the present
action in view of the doctrine of pari delicto entertained by this court in the case of Trinidad Gonzaga de Cabauatan, et al., vs. Uy Hoo et al., G. R. No. L-2207, wherein the court made the following pronouncement:

“We
can, therefore, say that even if the plaintiffs can still invoke the
Constitution, or the doctrine in the Krivenko case, to set aside the
sale in question, they are now prevented from doing so if their purpose
is to recover the lands that they have voluntarily parted with, because
of their guilty knowledge that what they were doing was in violation of
the Constitution. They can not escape this conclusion because they are
presumed to know the law. As this court well said: ‘A party to an
illegal contract cannot come into a court of law and ask to have his
illegal objects carried out. The law will not aid either party to an
illegal agreement; it leaves the parties where it finds them.’ The rule
is expressed in the maxims: ‘Ex dolo malo non oritur actio’, and ‘In pari delicto potior est conditio defendentis.’ (Bough and Bough vs. Cantiveros and Hanopol, 40 Phil., 210, 216.)”

With the foregoing conclusion, we deem it unnecessary to discuss the other points raised by petitioners in their brief.

Wherefore, the decision appealed from is hereby affirmed with costs against petitioners.

Paras, C. J., Bengzon, Tuason, Montemayor and Jugo, JJ., concur.

Reyes, J.,
concurring and dissenting: I concur, except as to that part of the
decision which holds that “petitioners are now prevented from
maintaining the present action in view of the doctrine of pari delicto,” to which I cannot agree for the reasons stated in my dissenting opinion in the case of Dionisio Rellosa vs. Gaw Chee Hun, supra, p. 827.

Pablo, M., disidente: Disiento por las razones expuestas en mi disidencia en las causas Nos. L-4068, Bernabe B. Caoili contra Yu Chiao Peng, infra p. 861, y L-1411, Dionision Rellosa contra Gaw Chee Hun.

Padilla, J., dissenting: I cannot agree to the majority opinion for the reasons stated in my dissent in Caoili vs. Yu Chiao Peng, G. R. No. L-4068, infra, p. 861.