THE PROVINCIAL SHERIFF OF PAMPANGA, CIRILO D. CABRAL AND ZACARIAS PEREZ, PETITIONERS, VS. HON. COURT OF APPEALS AND MARCIANO AGUSTIN, RESPONDENTS.

An action for recovery of a sum of money was filed on June 4,
1960, by Cirilo D. Cabral and Zacarias
Perez against Elpidio Agustin and Manuel Flores in
the Court of First Instance of Bulacan.^[1]

At said time, Elpidio Agustin was then
a furniture dealer under the business name and style “Modern Furni­ture
Store” in Masantol, Pampanga.  A big fire, however, broke out on January 9,
1961, and totally burned said furniture store of Elpidio
Agustin and its contents of seve­ral pieces of furniture.  As a result Elpidio
Agustin, on January 12, 1961, surrendered to the municipal trea­surer his
license to operate the store.

Not long thereafter, said defendant’s brother, Marciano Agustin, put on the same site a new furniture store,
adopting the name and style “Modern Furniture Store”.  On February 20, 1961, for business purposes, Marciano Agustin secured a new license and privilege tax to
operate the store.  And on the same date,
Elpidio Agustin verbally transferred “Modern Furniture
Store” to his brother Marciano Agustin.

Subsequently, on July 13, 1961, the Court of First Instance of Bulacan, in the aforementioned case, rendered judgment
against Elpidio Agustin (who had confessed judg­ment)
and Manuel Flores, jointly and severally, for P10,685.15 plus interest and
P500.00 attorney’s fees.

Subsequently, the Court of Appeals affirmed the deci­sion and it
became final and executory.  A writ of execu­tion was issued on April 20,
1963.  Acting thereon, the Provincial
Sheriff of Pampanga, on May 3, 1963, levied on the
pieces of furniture found in “Modern Furniture Store”.  Stating that said properties do not belong to
judgment debtor Elpidio Agustin but to him, Marciano Agustin filed a third party claim with the
sheriff.  An indemnity bond, however, was
posted by the judgment creditors in the she­riff’s favor, so he issued notice
that the properties le­vied upon will be sold at public auction on May 18,
1963.

A day before that, on May 17, 1963, Marciano
Agustin filed in the Court of First Instance of Pampanga
the pre­sent action, against judgment creditors Cabral and Perez and the
sheriff, to be declared owner of the pieces of fur­niture levied upon, with
preliminary injunction and damages.  A
writ of preliminary injunction was issued enjoining the sheriff from proceeding
with the sale.

After the defendants answered and trial, the Court of First
Instance rendered a decision that dismissed the com­plaint.  Plaintiff appealed to the Court of
Appeals.  On July 29, 1965, the Appellate
Court rendered a decision re­versing the lower court, and declaring Marciano Agustin owner of the pieces of furniture listed in
the complaint, ordering defendants to pay him jointly and severally P2,000.00
moral and actual damages and P500.00 attorney’s fees, and rendering permanent
the injunction issued.

Appeal therefrom was taken to Us by
defendants.  At issue here is:  Does Article 1387 of the Civil Code on pre­sumption
of fraud apply?

Appellants invoke said Article, which reads:

“ART. 1387.  All
contracts by virtue of which the debtor alienates property by gratui­tous title
are presumed to have been entered into in fraud of creditors, when the donor
did not reserve sufficient property to pay all debts contracted before the
donation.

“Alienations by onerous title are also presumed fraudulent
when made by persons against whom some judgment has been rendered in any ins­tance
or some writ of attachment has been issued. 
The decision or attachment need not refer to the property alienated; and
need not have been obtained by the party seeking the rescission.

“In addition to these presumptions, the design to defraud creditor
may be proved in any other manner recognized by law of evidence.”

The provision in question applies only when there has in fact
been an alienation or transfer, whether gratuitously or by onerous title.  In the present case, the finding of the Court
of Appeals, which is factual and therefore not proper for Us to alter in this
appeal, is that the store of Marciano Agustin is a
new and different one from that of Elpidio
Agustin.  True, Marciano
Agustin testified that “Modern Furniture Store” was transferred,
verbally, to him by Elpidio Agustin on February 20, 1961.  As the Court of Appeals found, however, this
referred to the business name and style, not to the store or its contents, as
the store and contents were completely new, coming from the capital of Marciano Agustin, whereas Elpidio’s
store and its contents of furniture destroyed totally by the fire January 9, 1961.

Since there was in fact no transfer of the store or its
furniture, Article 1387 aforementioned finds no application.  And appellants do not contend that the
transfer merely of the name and style “Modern Furniture Store” would
be fraudulent.  Such transfer has in the
circumstances no effect on Marciano Agustin’s
ownership of the pieces of furniture in question.

WHEREFORE, the appealed judgment of the Court of Appeals
is hereby affirmed, with costs against appellants.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles, and Fernando, JJ., concur.

^[1]
Civil Case No. 2197.