NARCISO CORTEZ, PLAINTIFF AND APPELLEE, VS. HERBERT BROWNELL, JR., IN HIS CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANT AND APPELLANT. GUILLERMA ABARQUEZ, DEFENDA…

On March 4, 1947, in Special Proceeding No. 56 for the summary settlement of
the estate of the deceased Amario Cortez, the Court of First Instance of Davao
decreed that Guillerma Abarquez, his mother, was his only legitimate heir,
entitled to his properties including two parcels of land in the City of Davao,
described in Transfer Certificate of Title No. 718 of that province. It
appearing that she was married to K. Matsuo, a Japanese, the court ordered that
copy of its decree shall be given to the Enemy Property Custodian of the U. S.
in Davao.

On May 18, 1948, the Philippine Alien Property Administration issued Vesting
Order No. P-644, (under the authority of the grading with the Enemy Acts, as
amended, the Philipipne Property Act of 1946 and other legal provisions),
declaring that said landed property, being owned by a national of Japan, was
thereby vested in the Philippine Alien Property Administrator for the use and
benefit of the United States etc.

On January 29, 1951, Narciso Cortez, Filipino, filed a complaint in the Court
of First Instance of Davao to annul the above judicial decree and Vesting Order
in so far as one-half of the property was concerned. He alleged in substance
that he was the lawful husband of Guillerma Abarquez and the father of Amario
Cortez; that as such father, he was entitled to one-half of Amario’s estate;
that the court decree was void because it had been obtained thru false and
fraudulent representations, inasmuch as the attorney who had filed the petition
(Atty. Gonzales) knowing he was alive, asserted that the only heir of Amario was
his mother Guillerma Abarquez; and that, consequently, the Vesting Order was
also void, at least in so far as it affected his one-half share of the assets of
his dead son.

The Attorney-General of the United States, who was substituted as party
defendant vice the Philippine Alien Property Administrator presented an answer
opposing plaintiff’s demand, denying the alleged fraudulent representations, and
asserting that the court had no jurisdiction to entertain the suit, because
under the Philippine Property Act of 1946, a formal notice of claim had to be
filed with the Alien Property Administration before the institution of a suit;
and the plaintiff failed to comply with such condition, with the result that the
action was, in effect, a suit against the United States government without its
consent. Said defendant also averred that the false representations supposedly
made to secure the award in favor of Guillerma Abarquez were not sufficient
cause of annulment, because they did not constitute extrinsic or collateral
fraud.

The Republic of the Philippines intervened, and made common cause with the
Attorney-General of the U. S.

Guillerma Abarquez was impleaded as defendant. In her answer, however, she
prayed that judgment be rendered in accordance with the complaint, acknowledging
her to be the legal owner of the other half of the property in question.

After hearing both sides, the court declared itself with jurisdiction and
found no fraud in the procurement of the judicial award, inasmuch as Atty.
Gonzales came to know plaintiff was alive only after the said award had
been duly promulgated. Said the court on this point,

“It is pointed out by the counsel for the plaintiff that fraud was committed
in the procurement of the questioned Order of this Court in Special Proceedings
No. 56, claiming that when Atty. Gonzales filed the petition he was advised by
Corcuera that the plaintiff was alive, and that was one month after Corcuera
received the power of attorney and the letter accompanying the same. Although
Atty. Gonzales admitted that he was informed by Corcuera to the effect that the
plaintiff was alive, yet it was only after March, 1947, when the Order was
already issued.

Apparently Corcuera was not sure of the date, whereas Atty. Gonzales was
certain that his knowledge of the plaintiff being alive was only had after
March, 1947, when the question order was already issued.

Considering that the testimony of Corcuera as pointed out is noticeably
uncertain with respect to dates, it cannot prevail over the testimony of Atty.
Gonzales, who gave the exact date that it was in March 1947, when he was advised
by Mr. Corcuera.”

Nevertheless, the Court granted the relief demanded by plaintiff and his wife
Guillerma Abarquez, following its opinion that Atty. Gonzales, as an employee of
the Philippine Alien Property Administration “should have prevented the vesting
of the properties” by said office, when he got information that Narciso Cortez
was still alive.

The Attorney-General of the United States and the Republic of the Philippines
appealed. In their joint brief they contend, in their first two assignments of
error, that the lower court had no jurisdiction over the Attorney-General nor
over the subject matter. By reason of such assignments the appeal is here, as
involving a question of jurisdiction. We do not find it necessary, however, to
discuss this phase of the controversy, because we are of the opinion that even
if the court had jurisdiction, the appealed decision must be reversed and the
complaint dismissed.

According to the Rules, the court order of March 4, 1947 adjudging the
properties of Amario to his mother Guillerma Abarquez, as his only heir, could
be annulled or modified to give other heirs (Narciso, the father) their share
within two years after March 4, 1947. When on January 29, 1951 Narciso Cortez
began this proceeding more than two years had already elapsed. He knew that
under the Rules he had no chance; therefore he elected another course of action:
a direct attack on the ground of fraud, which is made to consist in the alleged
knowledge (before the institution of the proceeding for the settlement of
Amario’s estate) of Atty. Gonzales that he was living, and despite such
knowledge, Atty. Gonzales falsely asserted that he (Narciso) was dead. But the
lower court believed Gonzales’ testimony that he came to know Narciso was alive
only after the award had been promulgated. So, the court found there
was no fraud in obtaining the Court adjudication. Nevertheless, reasoning that
after knowing Narciso was alive, Gonzales should have impeded the issuance of
the Vesting Order, the court annulled both the judicial order, and the Vesting
Order based thereon. Now, this is a prejudicial non sequitur. In the
first place it is not shown how Atty. Gonzales could have prevented the
promulgation of the Vesting Order. He was just an attorney in the office of the
Philippine Alien Property Administrator. In the second place, no relation
existed between Narciso Cortes and Atty. Gonzales imposing on the latter the
active duty to protect the former’s interests. In the third place, granting that
Atty. Gonzales neglected his duty (if any) to prevent the forfeiture, how could
such neglect nullify the judicial order already issued, and which was final and
irrevocable?

Now then, if the order of March 4, 1947 cannot be declared null and void by
reason of a subsequent neglect of duty of Gonzales, how again may the Vesting
Order be annulled, being—as it is—based upon an outstanding judicial declaration
that the property belongs to Guillerma Abarquez married to a Japanese, i. e. a
national of enemy country (Japan)?

Detecting this flaw in the appealed decision, the appellees claim in their
brief that the lower court erred in not finding that Atty. Gonzales acted
fraudulently, because “in September 1946, he knew that plaintiff and his son
Loreto were alive and in Manila, and yet he concealed this fact from the Court
and misrepresented them to be dead when he filed on January 6, 1947, the
petition for the summary settlement of the estate of Amario.”

This contention is premised on the testimony of Vedasto Corcuera who had
allegedly told Gonzales in September 1946 that “according to Loreto Cortez his
father is still living.” Atty. Gonzales affirmed under oath that Corcuera gave
him the information after March 1947. And the court believed him; rightly,
because Atty. Gonzales was presented as witness by the plaintiff
himself. Anyway even if it were true that Corcuera spoke to him in 1946,
Atty. Gonzales could not be blamed in discounting such hearsay
evidence, in the face of positive information given to him of Narciso’s death by
Ciriaco Cavanes (who had engaged him to file the petition and also by Guillerma
Abarquez, information which he was justified to believe, since Guillerma’s
marriage to the Japanese could only be explained with her previous husband’s
demise. In any event, the refusal of Atty. Gonzales to believe that Narciso was
alive does not by any means constitute fraud. Much less does it constitute
extrinsic or collateral fraud, since his fault, at most was the unintentional
presentation of false testimony that Narciso was dead; or in the concealment
(also unintentional) of the fact that Narciso was alive. And we have recently
ruled that presentation of false testimony or the concealment of evidentiary
facts does not per se constitute extrinsic fraud, the only kind of fraud
sufficient to annul a court decision.

“Anyway the deception by the Floreses, if any, was intrinsic, being in the
same category as presentation of perjured testimony or false evidence. Such
fraud does not prevent application of res judicata. According to repeated
decisions, only extrinsic fraud in procuring a judgment is ground to nullify
it.” (Arsenio Escudero et al. vs. Gertrudo Flores et als.,^[*] G. R. No. L-7401, June 25, 1955.) (Citing
many cases.)

There is therefore no ground to annul the court’s adjudication of March
4,1947. And so long as it stands, the Vesting Order must also stand.

And this plaintiff has only himself to blame. He was advised on time by Atty.
Gonzales that amendment of the court decree could be obtained by motion within
two years, yet he did not take appropriate action. Furthermore he separated from
his wife for many years (since 1925), and took no legal steps when she was
living with, or when she married the Japanese, thereby allowing the impression
to prevail in Davao that he was already dead. He has to bear the consequences.

If it be argued that Guillerma’s marriage to the Japanese was void, and
therefore she was not an alien enemy whose property is subject to forfeiture,
the answer is that according to existing court order, she is married to the
Japanese K. Matsuo. It should be remembered that under the law then in
force.

“Any marriage subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than such first spouse
shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The fiirst spouse had been absent for seven consecutive years at
the time of the second marriage without the spouse present having news of the
absentee being alive, or the absentee being generally considered as dead and
believed to be, so by the spouse present at the time of contracting such
subsequent marriage, the marriage so contracted being valid in either
case until declared null and void by a competent court.” (Sec. 29 Art.
3613 Civil Code.) (Italics ours.)

The appealed decision is reversed, the complaint is dismissed and the
questioned orders are sustained. Costs against plaintiff-appellee. So
ordered.

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

Judgment reversed.

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^[*] Supra, p. 240.