FAUSTO MONTESA, ET AL., PETITIONERS, VS. THE COURT OF APPEALS, ADRIANO LEE AND ANATALIA GICA, RESPONDENTS.

This is a petition for review
of a decision of the Court of Appeals (CA-G.R. No. 40632-R) affirming a
judgment of the Court of First Instance of Cebu, Barili Branch, which ordered the petitioners
to execute the necessary deed of sale of a parcel of land pursuant to Art. 1357 of the New Civil Code and to transfer and convey the ownership
of the said land to respondent Adriano Lee.

On April
11, 1961 respondent
Adriano Lee filed Civil Case No. R-36 (R-7020) in the Court of First Instance
of Cebu, Barili Branch to
recover a parcel of land allegedly sold to him on April 4, 1956 by Severino Montesa for the
sum of P700.00 but subject to the usufructuary rights
for life of the vendor’s wife, Anatalia Gica.

The petitioners are the children of Severino
Montesa by his first wife, Raymunda
Perida. 
Adriano Lee is the son-in-law of Montesa’s
second wife, respondent Anatalia Gica.

The alleged sale was effected through an
absolute deed of sale (Exhibit A) bearing the thumbmark
of Severino Montesa, signed
in the presence of three witnesses but not notarized allegedly because Montesa had no residence certificate at the time.  Severino Montesa died on January
15, 1957, several months after the document was executed.  Because the non-notarized deed could not be
registered, Adriano Lee asked that the petitioners and their stepmother, Anatalia Gica, who was also made
defendant, be compelled to execute the necessary documents pursuant to Article
1357 of the Civil Code.  In her answer, Gica admitted practically all the averments of the
complaint filed against her by her son-in-law.

In their answer to the complaint, the petitioners alleged that
Exhibit “A” is a spurious and forged document and raised various
reasons to show its alleged fraudulent nature. 
In their special defenses and counterclaim, they also alleged, among
others, that the parcel of land allegedly sold through Exhibit “A” is
the same parcel of land which was the subject matter of a June 13, 1952 deed of donation which they asked
to be annulled in Civil Case No. R-5066 of the same Court of
First Instance of Cebu.  They asked why this deed of sale should
surface only after they filed an action against their stepmother to annul a
deed of donation of the same piece of land. 
Anatalia Gica was
the defendant and the petitioners the plaintiffs in the latter case.

After respondent Adriano Lee rested his case in CC No. R-36
(R-7020), respondent Anatalia Gica
filed a cross-claim against the petitioners adopting and incorporating as part
of her cross-claim the allega­tions of the complaint.

In the special defenses of their answer to the cross-claim, the
petitioners alleged, among others, (a) that Branch V of the Court of First
Instance of Cebu had already rendered a partial
judgment in Civil Case No. R-5066 declaring null and void the deed of donation inter
vivos executed by Severino
Montesa on June
13, 1952 in favor of Anatalia Gica
and declaring the petitioners as the co-owners of the land in question; and (b)
that the parcel of land involved in the said partial judgment is the same
parcel of land described in paragraph 3 of the complaint (Civil Case No. R-36 [R-7020]).  They
also attached a copy of the Partial Judgment to their answer.  The partial judgment was made an integral
part of the answer and was marked as Exhibit 3-Gica during the trial.

After due hearing, the
trial court rendered a judgment on March 26, 1966 in favor of private respondents.  The dispositive
portion of the decision reads as follows:

“WHEREFORE, in view of all the foregoing evidence and
provisions of law, the Court finds that the plaintiff and cross-claimant Anatalia Gica have established
their case by a preponderance of evidence, considering all the facts and
circumstances, the plaintiff’s witnesses’ testimonies and their manner of
testifying which were straightforward, natural and direct, and renders judgment
in favor of the plaintiff and against the defendants excepting Anatalia Gica, to wit:

“(a) Ordering the defendants except Anatalia Gica to execute the
necessary documents pursuant to Art. 1357 of the New Civil Code;

“(b) Ordering the defendants to transfer and convey naked ownership
of the property in litigation to the plaintiff within thirty (30) days from
receipt hereof; and

“(c) Ordering the defendants except Anatalia Gica to pay the sum of
two hundred pesos (P200.00) as attorney’s fees and costs of proceedings.  No pronouncement as to damages for lack of
evidence.

“The counter-claim
against the plaintiff is hereby dismissed. 
The complaint against the defendant, Anatalia
Gica, is hereby likewise dismissed.

“The judgment is also rendered in the cross-claim of Anatalia Gica in her favor
against cross-defendants – Fausto Montesa,
Lucrea Montesa de Escraman, Sinforosa Montesa de Candelesa and Marta Montesa de Avila – to turn over the possession of the land
in question to Anatalia Gica
within thirty (30) days from receipt hereof by virtue of the condition in
Exhibit 1 – Gica, and the possession of the land in
liti­gation shall also ipso facto revert to the plaintiff, Adriano Lee, after
the usufructuary condition has been complied with.

“The counterclaim of cross-defendants against cross-claimant, Anatalia Gica is hereby
dismissed.”

The petitioners appealed
the judgment of the lower court to the Court of Appeals and raised the
following assignments of errors:

“I

“THE LOWER COURT ERRED IN NOT DECLARING EXHIBIT ‘A’, ABSOLUTE
DEED OF SALE A FORGERY.

“II

“THE LOWER COURT ERRED IN NOT FINDING THAT THE LAND IN
QUESTION IS THE CONJUGAL PROPERTY OF THE DECEASED SEVERINO MONTESA WITH HIS
FIRST WIFE RAYMUNDA PERIDA.

“III

“THE LOWER COURT,
THEREFORE, ERRED IN NOT DISMISSING PLAINTIFF­-APPELLEE’S COMPLAINT AND
DEFENDANT-CROSS-CLAIMANT-APPELLEE’S CROSS-CLAIM WITH COSTS AGAINST EACH OF THEM
AND GRANTING THE DEFENDANTS-APPELLANTS THE RELIEF PRAYED FOR IN THEIR COUNTERCLAIM
AGAINST THE PLAINTIFF AND CROSS-CLAIMANT, RESPECTIVELY.”

On March 18, 1971, the Court of Appeals affirmed the decision of
the lower court.  In a decision penned by
Justice Hermogenes Concepcion,
Jr. and concurred in by Justices Ruperto G. Martin
and Cecilia Muñoz Palma, the Court of Appeals ruled
that the evidence supports the conclusion of the lower court in upholding the
validity of the deed of absolute sale. 
On the claim of the petitioners that the questioned property was the
conjugal property of the deceased Severino Montesa and his first wife Raymunda
Perida, the court ruled that this issue was not
raised in the lower court, hence, it could not for the first time be raised on
appeal.

In this petition for review on certiorari the petitioners
assigned the following errors:

“FIRST ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE ISSUE
ASSIGNED BY THE APPELLANTS IN THEIR SECOND ASSIGNMENT OF ERROR THAT THE LAND IN
QUESTION IS THE CONJUGAL PROPERTY OF THE DECEASED SEVERINO MONTESA WITH HIS
WIFE RAYMUNDA PERIDA WAS NOT RAISED IN THE LOWER COURT.

“SECOND ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING AND IN NOT
GIVING WEIGHT TO THE MATERIAL AND SUBSTANTIAL ADMISSION OF PLAINTIFF-APPELLEE ADRIANO LEE IN THAT APPELLANTS HAD ONE-HALF OF THE SHARE
OF THE LAND IN QUESTION AND THE OTHER HALF IN THE POSSESSION OF SEVERINO
MONTESA.

“THIRD ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING AND IN NOT
GIVING WEIGHT TO THE MATERIAL AND SUBSTANTIAL ADMISSION ON CROSS-CLAIMANT-APPELLEE
ANATALIA GICA IN THAT EXHIBIT ‘A’ ALLEGED PRIVATE DEED OF ABSOLUTE SALE WAS
EXECUTED ON APRIL 4, 1960, CONSIDERING
SAID EXHIBIT WAS ALLEGEDLY EXECUTED ON APRIL 4, 1956 AND SEVERINO MONTESA DIED
ON JANUARY 15, 1957.”

Was the Court of Appeals correct in ignoring the assigned error
on the conjugal nature of the property?

The petitioners contend that when respondent Adriano Lee merely
alleged in his reply and answer to their counterclaim in CC No. R-36 (R-7020), that he was not a party in CC No. R-5066 and
had no interest in the outcome thereof, he admitted as a fact that the land
involved in the two civil cases is the same piece of land so that they
(petitioners) did not have to introduce evidence to show that the land was the
conjugal property of the deceased Severino Montesa and his first wife Raymunda
Perida.

The petitioners also argued that in their answer to Adriano Lee’s
complaint as well as in their answer to
Anatalia Gica’s cross-claim
they (petitioners) raised the issue that the parcel of land sold through
Exhibit “A” is the same parcel of land subject matter of the case
filed against Anatalia Gica
in CC No. R-5066 of the Court of First Instance of Cebu,
Branch V and that the latter court had already rendered a partial
judgment.  The court ruled that the deed
of donation involving the same parcel of land given by Severino
Montesa to his second wife Anatalia
Gica was null and void and that the petitioners were
co-owners of the same parcel of land described in Exhibit “A”.

On the other hand, the
private respondents claim that there is nothing in the answer which raised as
an issue or which was pleaded therein as a special or affirmative defense
asserted in plain, concise and direct language that would show that the land in
question is the conjugal property of Severino Montesa and the deceased Raymunda
Perida.

The private respondents
state that the allegations in the special and affirmative defenses of the
petitioners’ answer raised only the following:

“(1) that the document, Deed of Absolute Sale, Exhibit ‘A’ was a
spur­ious document;

“(2) that it was alleged as surprising why
the document was only brought before the trial court after Civil Case No.
R-5066 was filed for the annulment of the Deed of Donation; and

“(3) that the purpose of plaintiff’s filing the case
was to harass the defendants.”

We find the petitioners’
stand well-taken.  It must be noted that
the petitioners, in their answer to the complaint in Civil Case No. R-36
(R-7020), alleged, among others, as special defenses –

“Anatalia Gica,
mother-in-law of plaintiff herein resisted the action (Civil Case No. R-5066,
this Court) maintaining her right to the property subject matter of the donation
and also now subject matter of this case as per alleged Exhibit ‘A’.  (p. 17, Record on Appeal)

and

“Among others, the subject matter in Civil Case No. R–5066, this Court wherein the herein
defendants are the plaintiffs and Anatalia Gica, mother-in-law of plaintiff Adriano Lee, is the
defendant, is the same parcel of land now being described in paragraph III of
this case.” (p. 18, Record
on Appeal)

In their answer to the
cross-claim of Anatalia Gica
the petitioners alleged as their special defenses –

“1. That on April 23,
1962, this Court (Branch V) rendered a Partial Judgment in Civil
Case No. R-5066 wherein the herein defendants, Fausto
Montesa, Adela Montesa, Lucrea Montesa de Ecraman, Sinforosa Montesa de Candelesa and Marta Montesa de
Avila were parties in said case against the herein cross-claimant Anatalia Gica de Montesa, in that the Deed of Donation in favor of Anatalia Gica executed by the
deceased, Severino Montesa
covering the parcel of land now described in paragraph 3 of the Complaint of
the above-entitled case was declared null and void; that the plaintiffs in the
said case No. R-5066 were declared as co-owners of the land referred to and
described in the amend complaint
(Civil Case No. 5066); that the parcel
of land covered by Tax Declaration No. 29674 (Dumanjug)
involved in the Partial Judgment is the sane parcel of land described in
paragraph 3 of the Complaint.  A copy of
the Partial Judgment is hereto attached and marked as Annex ‘A’ and made as an
integral part hereof.

“2. That by virtue of
the afore­mentioned Partial Judgment which has become final the parcel of land
described in paragraph 3 of the Complaint and also the subject matter in Civil
Case No. R-5066 contrary to the claim of cross-claim in paragraph 4 of the
cross-claim in that she has the rights to possess of the land in question is a
clear misrepresentation of facts and is belied by the said judgment.” (pp.
61-62, Record on Appeal, underscoring
supplied).

In the partial Judgment rendered in Civil Case No. R-5066, which was attached and made an
integral part of petitioners’ answer to the cross-claim of Anatalia
Gica, the trial court stated:

“In their amended complaint, plaintiffs alleged four causes of
action against the defendant.  The first
cause of action alleges that plaintiffs are the owners of a parcel of land
situated in the barrio of Mantalao, municipality of Dumanjug, Cebu, which is more
particularly described in Tax Declaration No. 29674 (Dumanjug),
having inherited the same from their deceased parents and grandparents Severino Montesa and Raymunda Perida; x x x x x x” (p. 65, Record on
Appeal; underscoring supplied.)

It is to be noted, too,
that in their amended complaint (Civil Case No. R-5066) petitioners alleged,
among others, that –

“xxx xxx Severino Montesa and Raymunda Perida, who in their lifetime
and during the existence of their marriage, the said decedents have acquired
conjugal properties, among which is a parcel of land herein below described,
to wit:

“A parcel of land situated at the barrio of Mantalao, Dumanjug, Cebu, under Tax Declaration No. 29674, and more
particularly des­cribed as follows:

North: Policarpio Melgar
and river

East: Benito Aleo

South: Felix Ugbinar

West: Felipe Capungan and river

Area – 29.2441 hectares more or less

Assessed value – P1530

Improvements
– Coconut fruit bearing trees, bamboo grooves and a house of mixed
materials.” (pp. 33-34, Record on Appeal; underscoring
supplied.)

Considering the foregoing pleadings, it cannot be said that the
conjugal aspect of the land in question was not raised before the lower court.  In the petitioners’ answer
to the cross-claim of Anatalia Gica,
a copy of the Partial Judgment rendered in Civil Case No. R-5066 was
attached and made an integral part thereof. 
It appears in the decision that “plaintiffs are the owners of a
parcel of land situated in the barrio
of Mantalao, municipality of Dumanjug,
Cebu, which is more particularly described in Tax
Declaration No. 29674 (Dumanjug), having inherited
the same from their deceased parents and grandparents Severino
Montesa and Raymunda Perida.” It would be too technical if the phrase
“having inherited the same from their deceased parents and grandparents Severino Montesa and Raymunda Perida” cannot be
considered to mean that the land in question is the conjugal property of Severino Montesa and Raymunda Perida.

Adriano Lee and Anatalia Gica contended during the trial of this case that with the
death of Raymunda Perida in
1935, the conjugal partnership of Severino Montesa’s first marriage was dissolved and that the
children of the first marriage, petitioners herein, already received their
respective shares.  In 1936 or one year
after Perida’a death, Severino
Montesa and Anatalia Gica were married.

The decision in Civil Case No. R-5066,
which was made a part of the answer in this case belied the above claim and
awarded the disputed lot as co-owned by the petitioners and Anatalia
Gica.  The only
basis for the co-ownership was the claim of the petitioners that they inherited
the land from their parents Severino Montesa and Raymunda Perida.  The lot that
Severino Montesa tried so
hard to give to Anatalia Gica,
his second wife – first through a deed of donation which was nullified by the
court and second through the un-notarized and thumb marked deed of sale to
Adriano Lee but with lifetime usufructuary rights of Anatalia Gica, Lee’s
mother-in-law -was, therefore, found by the court in Civil Case No. R-5066 to be conjugal property.  The arguments of Lee and Gica
that they introduced no evidence to dispute the conjugal nature of the property
because this was not an issue in the case have no merit.

The property involved in the donation case (CC No. R-5066) and in
the deed of sale case (CC No. R-7020) is exactly the same parcel of land.  The respondent court should have taken note
of the decision in CC No. R-5066 appended to and made a part of the answers in
CC No. R-7020 instead of ruling that the assigned error on the conjugal character of the
land could not be raised for the first time on appeal.  In that way, justice could have been served
better.

The other issue raised in this petition refers to the validity of
the questioned deed of sale.  The
authenticity and due execution of the deed of sale were sustained by the trial
court and affirmed by the Court of Appeals. 
We see no compelling reason to deviate from the rule that findings of
facts of the respondent court based on substantial evidence cannot be reviewed
by Us in a petition for review on certiorari.  However, Severino Montesa could not validly convey properties which did not
belong to him.  As clearly discernible
from the records, the questioned parcel is conjugal property of the first
marriage.  Therefore, the deed of sale
(Exhibit “A) is valid only up to the extent of Severino
Montesa’s share in the said property.

WHEREFORE, (1) The finding of the Court of Appeals that
the conjugal character of the questioned parcel of land was raised for the
first time on appeal is reversed and set aside; (2) We affirm the Court of
Appeals decision upholding the authenticity, genuineness, and due execution of
the deed of sale (Exhibit “A”) but with a modification.  The validity of the deed of sale extends only
up to the share of Severino Montesa
over the land in question; (3) Civil Case No. R-36 (R-7020) is hereby remanded
to the trial court for the partition and determination of the res­pective
shares of the parties over the same parcel of land in accordance with this
decision.  Costs
against the respondents.

SO ORDERED.

Teehankee, (Chairman), Makasiar, Melencio-Herrera, Plana, Vasquez, and Relova, JJ., concur.