ROMAN OZAETA (AS EXECUTOR OF THE TESTATE ESTATE OF CARLOS PALANCA Y TANGUINLAY, SP. PROC. NO. 12126, COURT OF FIRST INSTANCE OF MANILA, PLAINTIFF AND APPELLEE, VS. SEBASTIAN C. …

This is an appeal from the order, dated 29 June 1959, of the Court
of First Instance of Manila, Branch XI, in its Civil Case No. 39686,
dismissing, for failure to state a cause of action, the first and
second counterclaims of the defendant-counterclaimant, Sebastian C.
Palanca, against the plaintiff, Roman Ozaeta, executor of the testate
estate of Carlos Palanca y Tanguinlay. Appellant directed his appeal to
the Court of Appeals, but the latter court certified the same to the
Supreme Court as one which involves no question of fact but purely of
law.

Predicating the counterclaims are admissions of Sebastian Palanca in
his answer to the complaint that on 24 June 1956 he executed with, and
in favor of, his other co-heirs a deed of assignment over his shares
and participation in the estate of his father, Carlos Palanca y
Tanguinlay, and in the estate of his late eister, Marciana Palanca de
Santos, under certain terms and conditions, in consideration of the
adjudication and transfer to him of certain properties in Sorsogon;
that in Special Proceeding No. 12126 of the Court of First Instance of
Manila, Branch IV, in which the estate of Carlos Palanca y Tanguinlay
is under probate, the court, on 3 July 1956, approved the said deed of
assignment and directed the executor, herein appellee, to deliver the
properties to the appellant; and that the executor, on 31 July 1956, in
pursuance of the court order, executed a deed of conveyance on the said
properties in favor of the appellant.

The appellant’s counterclaims are quoted hereunder:

“AS FIRST COUNTERCLAIM

“30.
That the herein defendant, Sebastian C Palanca hereby reproduces each
ami every allegation above made, and makes them an integral part of
this first counterclaim;

“31. That as a result of the
plaintiff’s failure to transfer and convey the properties mentioned and
described in sub-paragraphs (a), (b), (c), (d), (c), (f), (j) and (k)
of paragraph 19 of this Answer, f ice from all Huns and encumbrances
and the fact that these properties were not free from all liens and
encumbrances as they are in fact in the name and actual possession of
third parties, the herein defendant was consequently deprived of
ownership and possession of paid properties, us the said third-parties
claim title over the said properties and refuse to surrender to the
herein defendant the possession thereof, and consequently suffered
damages in the amount of P1,000,000.00, representing the actual market
value of those properties at the time of the filing of the complaint in
this case.

“AS SECOND COUNTERCLAIM

“32.
That the herein defendant hereby reproduces each and every allegation
made and contained in each and every paragraph above made and makes
them an integral part of this second counterclaim ;

“33. That
the properties mentioned in sub-paragraphs (a), (b), (c), (d), (e),
(f), (j) and (k) of paragraph 19 above, which were not conveyed and
delivered to the herein defendant have been planted to coconuts, abaca
and rice, consulting of a total area of approximately 150 hectares;

“34.
That by reason of the failure of the plaintiff to convey and deliver
the title and possession of the said properties, the herein defendant
was not able to collect the yearly harvest or income from said
properties which is conservatively estimated at P75,000.00 annually
from and after July 31, 1956 up to the time that plaintiff shall have
effected a delivery of said properties free from all liens and
encumbrances to the herein defendant.”

In short, therefore, the appellant alleges that he has rights under
the deed of assignment which have been violated and for which he seeks
the alternative reliefs of performance or damages. Theoretically
admitting the truth of the allegations in the counterclaim, there is no
cause of action against Roman Ozaeta, in his capacity as executor in
Special Proceeding No. 12126, since he was not a party to the deed of
assignment—his participation in connection with the contract was merely
to comply with the order of the probate court—a fact which is admitted
in appellant’s own allegations.

“On a sale of a decedent’s property under order of
Court, there is no implied warranty, either of title or quality” (34
C.J.S. 618; Nutt vs. Anderson, 87 S.W. 2d, 760).

“So,
an order of the Court made by virtue of its lawful discretion,
authorizing the representative to sell property will ordinarily protect
the representative who acts in pursuance of the order” (34 C.J.S., p.
635; Goldsborough vs. De Witt, 189 Atl., 226, 171 Md., 225).

Thus, defendant Sebastian Palanca’s remedy, if any, lies only
against the persons with whom he has contracted by virtue of the Deed
of Assignment (Annex “A” of the complaint), even assuming that he could
still relitigate these same issues that he had already submitted to the
probate court on 9 May 1957 and which were rejected by the order of the
same court dated 20 June 1957, already final for non-appeal therefrom
(Sec. on Appeals, pp. 85, 100).

Finally, it is well to note that an adverse possession by another is
not an “incumbrance” in law, and does not contradict the condition that
the property be free from encumbrance (Yuson, et al. vs. Diaz, 42 Phil., 22); nor is it a “lien”, which connotes security for a claim (Shanghai Banking Corp. vs. Rafferty, 39 Phil., 145).

Therefore, the court below correctly declared that the first and
second counterclaims state no cause of action against the plaintiff
Executor.

Wherefore, the order appealed from is affirmed. Costs against appellant, Sebastian C. Palanca.

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