LUPO L. DI¤OSO, PETITIONER, VS. COURT OF APPEALS AND ANTONIO D. FONTILLAS, RESPONDENTS.

Appeal by certiorari from a decision of the Court of Appeals
(CA-G.R. No. 23886-R, 30 June 1960) affirming a judgment rendered by
the Court of First Instance of Zambales. As found by respondent court,
the facts are:

“On December 18, 1944 appellee (Antonio D.
Fontillas) bought from Modesta Feria four parcels of land, three of
which were located in San Narciso, Zambales, and the fourth-the lot in
question-in sitio Cawayan Kiling, Cabangan, Zambales (Exhibit A). The
vendor was given the right to repurchase the properties on or before
December 1, 1946. As she failed to exercise right, the vendee
consolidated his ownership and registered the deed, of sale with option
to repurchase in accordance with Act 3344 on January 10, 1946. However,
he failed to take possession of the property because appellant (Lupo L.
Diñoso) refused to surrender possession thereof.

It also
appears that on April 6, 1940 Modesta Feria executed in favor of
appellant the pacto de retro sale Exhibit 1 which was registered only
on May 25, 1948. After the sale appellant took possession of the land
in question and was still in possession thereof when the present action
was commenced on September 4, 1952.

Notwithstanding the
numerous questions raised by appellant in the eight assignment of
errors submitted in his brief, we believe that only two questions are
decisive of this case. The first is whether or not the land sold by
Modesta Feria to appellee is the same parcel of land sold to appellant;
ana the second is whether, assuming that the properties sold by Modesta
Feria to appellant and appellee were different from each other,
appellant acquired title by prescription to the land conveyed to
appellee.

A comparison between the boundaries of the parcel
of land sold under pacto de retro hy Modesta Feria to appellee, on the
one hand, and the boundaries of the land which the same vendor was
claimed to have sold to appellant on April 6, 1940, on the other, shows conclusively that they lire different.* * *.” (Italics supplied)

This finding of non-identity is conclusive, and, as a matter of
fact, appellant does not question it. His assignments of error center
on the ruling of the Appeals Court disallowing his claim of title by
adverse possession.

Admittedly, there is nothing in the answer which alleges, directly
or indirectly, that petitioner acquired by prescription the land
subject-matter of the complaint. On the contrary, petitioner expressly
asserted that he bought it from the same vendor in a deed of sale with
right of repurchase (Exhibit 9). For this reason, the Court of Appeals
refused to consider the defense of adverse possession:

Petitioner Dinoso complains that the Court of Appeals erred in so
holding, and invokes in his behalf Recoletos vs. Crisostomo, 32 Phil.
248, wherein it was held that adverse possession can be set up by
defendant under a general denial.

This argument does not take into account that general denials have
been abolished by the present Rules of Court, and a defendant is now
required to allege all his defenses, both negative and positive, by
specific denials and pleas in avoidance (Rule 9, secs., 6, 7, and 8),
disclosing the true facts in order to prevent surprise and unfair
advantage. Explains Moran (Rules of Court, 1957, Vol. 1, p. 158):

“The purpose of requiring the defendant to make a
specific denial is to make him disclose the matters alleged in the
complaint which he sincerely intends to disprove at the trial, together
with the matters which he relies upon to support the denial. Under the
old procedure, the defendant was allowed to conceal, under a general
denial, the true facts of his case, and at the same time compel the
proving of facts alleged in the complaint which he, at the trial, does
not even attempt to dispute. He was thus given the advantage, doubly
unfair, of presenting his true facts only at the trial as a surprise to
the plaintiff, and of compelling the latter to incur unnecessary
expenses for proving facts not really disputed by him. The new system
of specific denial removes this unfair advantage, unnecessary expenses
and waste of time, by compelling both parties to lay their cards on the
table, thus reducing the controversy to its true terms. * * *.”

In his answer filed in the court of origin, petitioner-appellant
Diñoso specifically denied respondent Fontillas’ claim of ownership,
and alleged that he was the true owner in fee simple of the land in
question by virtue of the consolidation of the title conveyed to him
under pacto de retro by Modesto Feria:

“2. That he denies specifically paragraph 2 of the
complaint, for the fact is; it is the defendant who is the owner in fee
simple, the ownership having, been consolidated in said defendant by
virtue of a Deed of Sale with right to repurchase executed by ami
between the defendant and the former owner thereof, Modesta Feria, on
April 6, 1940; which date is much earlier than the supposed date of the
instrument alleged by the plaintiff to have been executed. The right to
repurchase under the instrument executed by and between the defendant
and Modesta Feria, had not been exercised by the vendor a Retro within
the time stipulated, thus mating the defendant the absolute owner of
the property in question, rather than the plaintiff whose right, if
any, is based on a later instrument the genuineness and due execution of which is, by the way, not admitted by the supposed Vendor a Retro, Modesta Feria;”

Diñoso never pleaded that irrespective of that conveyance, and
regardless of whether his deed covered the disputed land or not, he had
held it adversely for more than ten years, as required by the
applicable law (Act 190, sec. 41).

The express pleading
of the sole defense of conveyance from the former owner would make it
unfair to admit the inconsistent claim of adverse possession that
Dinoso had not interposed below, as it would deprive respondent
Fontillas bf the opportunity to counter Said defense by proving that
the petitioner’s occupancy did not comply with all the requirements of
law, for example, that it lacked hostility, Openness, or continuity. In
other words, the failure to plead adverse possession has misled the
respondent (plaintiff below) into assuming that petitioner relied
exclusively on the sale to him by Modesta Feria (which the Court of
Appeals found to have referred to another piece of land), and appellant
should be barred from as- serting adverse possession, involving as it
does a complete change of theory from that upon which the case was
tried.

We further agree with the appeals court that the possession of petitioner Dinoso under the sale a retro,
Exhibit “1”, did not actually become hostile or adverse until the
expiration of the redemption period, since until then he recognized the
superior right of the vendor to oust him, and his claim of , ownership
was not absolute. Authorities are to the effect that-

“Where the sale is subject to the owner’s right of
redemption, the purchaser’s possession has been held in subordination
to the title of the owner prior to the expiration of the redemption
period, although it may become hostile thereafter.” (2 C.J.S., p. 664,
sec. 113; Morse vs. Seibold, 35 N. W. 371).

It was incumbent upon the petitioner to show when his vendor’s right
of redemption expired, and that he had held adversely for ten years
thereafter. In truth, his own deed (Exhibit “1”). recites that Feria’s
right of repurchase would expire only on 6 April 1950, so that the
present suit for recovery was begun in 1952, well within the
prescriptive period.

As to, the amount of damages suffered, the same is a question of fact not reviewable by this Court.

Wherefore, the decision of the Court of Appeals is. hereby affirmed, with costs against petitioner Lupo Diñoso.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Regala and Makalintal, JJ., concur.