ZOILA DUMANON, SEVERINA DUMANON, PEDRO REBOYON, VICTORIANA MONTILLA, REFARADO FURIA, ROSARIO DE LAWAN, FELICIDAD DE DULAYBA AND OLYMPIO DULAYBA, PLAINTIFFS-APPELLANTS, VS. BUTUA…

Appeal from the order
dated September 10, 1966 (pp. 60­-63, Record on Appeal, p. 10, Rollo) of the Court of First Instance of Agusan dismissing Civil Case No. 1029 of said court on a motion to dismiss filed by defendants Carlos Curilan
and Rufina Naranjo (pp.
39-45, Record on Appeal, p. 10, Rollo).

The motion to dismiss
alleged the following grounds:

“1.  THAT THE CAUSE OF
ACTION IS BARRED BY STATUTE OF LIMITATIONS (Rule 16, Sec. 1, Par. (f) of the Rules of Court);

“2.  THAT THE COMPLAINT
STATES NO CAUSE OF ACTION (par. (g);

“3.  THAT THE SUIT IS
BETWEEN MEMBERS OF THE SAME FAMILY AND NO EARNEST EFFORTS TOWARDS A COMPROMISE
HAVE BEEN MADE (par. (j) .” (p.
40, Record on Appeal).

In its order granting the
motion to dismiss, the court held that the action was barred by laches and the statute
of limitation.  A motion for reconsideration was filed of the
dismissal order (pp. 74-75, Record on Appeal, p. 10, Rollo), but the same was denied,
(p. 76, Record on Appeal,
Id.).  Plaintiffs then interposed the present appeal.

The records disclose that
on January 26, 1965 plaintiffs (now herein appellants) filed a complaint which was
amended, after a motion for a bill of particulars had been granted (pp. 24-35, Rollo), with prayer as follows:

“WHEREFORE, it is most respectfully prayed that judgment issue
in favor of plaintiffs, as follows:

“1.  That upon filing of
this case, let an order immediately issue directing (if still required) the
appointment of defendant Felisa Azote
Vda. de Dumanon
as guardian ad litem for minors,
namely: Racquel, Rosario and Ernesto Dumanon for the purpose of this case;

“2.  That plaintiffs aforesaid be declared
absolute owners of the property in question ordering Carlos Curilan
and Rufina Naranjo to
vacate the premises and turning over the possession thereof to plaintiffs hereof
and that said defendants be ordered to reconvey the
property in question to plaintiffs hereof except the assisting husbands (Pedro Reboyon, Refarado Furia and Olympio Dulayba);

“3.  That TCT No. RT 82
and RT 479 in the names of Fermin Dumanon
and Carlos Curilan and Rufina
Naranjo, respectively, be cancelled and declared null
and void and without force and effect;

“4.  That the deed of
donation mentioned in paragraph 4 of the complaint and all the other documents
which may be found in this case be likewise declared void and inexistent;

“5.  That the mortgage by defendants Carlos Curilan and his wife Rufina Naranjo be declared also as null and void and with­out
force and effect;

“6.  That the illegal annotation entered on TCT RO
82 in 1951 re the void donation be likewise declared null and void and that the
defendant Register of Deeds be directed to issue to plaintiffs hereof their new
Transfer Certificate of Title;

“7.  That defendants except the Butuan City Rural Bank and Register of Deeds be ordered to pay
jointly and severally to the plaintiffs hereof, the following, as follows: P2,000 for the value of the house
destroyed by defendants Carlos Curilan and Rufina Naranjo; P700 a month from
January, 1958 and up to the date this
case is finally terminated; P2,000 for attorney’s fees and expenses of litigation
up to the present stage of the proceedings and that all said fees and expenses
that may be incurred later be determined and fixed by this court or by the
appellate court concerned in case of appeal; and for moral and exemplary
damages that the plaintiffs suffered in the amount that this court or the
appellate court concerned may fix in the final judgment of this case at the
court’s discretion.”

The issue raised in this
appeal of whether the order granting the motion to dismiss is proper,
valid or legal requires an examination of the allegations of the complaints, because, for the purpose of the motion
to dismiss they are deemed hypothetically admitted (Lim, et al. vs. De los Santos, G. R. No. L-18137, August 31, 1963, 8 SCRA 798).  Only
facts alleged in the complaint should be considered, specially
when the ground alleged is prescription (Cordova vs. Cordova, G. R. No. L-9936, January 14, 1958; Convets, Inc. vs.
Nat. Dev. Co., et al., G. R. No. L-10232, February 28, 1958).

It is alleged in the
first amended complaint (paragraph 4) that a deed of donation of the land in question was executed by Rufo and Paula Dumanon dated
January 3, 1933, but claimed to be void because same was fraudulently executed,
the supposed donors being illiterate, unable to read and write, and could not have signed the
document, as they appear to have done so, and that they could not have parted
with the land donated since they
(donors) claimed the same as their own in the Cadastral proceedings and
obtained OCT No. RO-23(1242) in
their name in equal shares, free from any encumbrance,
not even the supposed donation.  This deed of donation is sought to be declared void and inexistent by the plaintiffs-appellants.

With respect to the above
cause of action as ground for the annulment of the donation, the order
dismissing the complaint is
perfectly valid and legal.  On the face
of the complaint, it is manifest
that the deed of donation, having been executed in 1933, the action to annul the deed on the ground of
fraud, as is the essence of the cause alleged for its nullity, is already barred by
prescription, as well as by laches, when the
complaint was filed on January 26, 1965, after the lapse of 32 years.

It has been held that an
action to annul an extrajudicial settlement upon the ground of fraud should be filed
within four (4) years from the discovery of the fraud (Gerona vs. de Guzman, L-19060, May 29, 1964, 11 SCRA 153).  An
action to annul a contract of sale for lack of consideration also
prescribes in 10 years (Cunanan vs. De Antepasado, L-16169,
August 31, 1962, 5 SCRA 1028). 
From the allegation of the complaint, it can be deduced with certitude
that appellants had discovered
the fraud, at the latest, when the deed of donation was registered, because
registration is notice to the
whole world of such fact.  Appellants, in
effect, had by the allegations
of the complaint admitted knowledge of the fraud in the execution of the deed
of donation upon knowing that there exists such a deed, for their allegation is
that the supposed donors could not have parted with the land, knowing them to
be illiterate, unable to read and write, and, therefore, could not have signed
the document as they appear to have done, and they had in fact claimed the land
in the cadastral proceedings where they obtained a certificate of title in
their name.  The deed of donation is like
either the deed of extra-judicial settlement or the deed of sale, which are the documents involved in the aforecited
cases, as a mode of transferring title to another.  Hence, either on the ground of fraud or for
lack of consideration (even donation is deemed to have also cause or
consideration), the annulment of the donation as is sought in the present
action is barred by prescription, on the authority of the aforecited
cases – within 4 years from the discovery of the fraud, if such is alleged, 10
years, if no fraud is alleged.

Appellants, however,
contend that the real and principal action in their complaint is the annulment
of the registra­tion of the deed of donation on November 21, 1951, which led to the cancellation of OCT No.
RO-23 (1242) in the name of the donors, Rufo and
Paula Dumanon, and the issuance of TCT No. 82 in the
name of Fermin Dumanon, the
donee in the aforementioned donation.  It is alleged in the complaint (par.
5) that the registration was in bad faith and unauthorized, the defendants who
caused the registration of the deed of donation
being fully aware that the land lawfully belonged to
plaintiffs-appellants and to Rufo Dumanon.

From the allegations of
the complaint, it would appear that the registration of the deed of donation
sought to be annulled as expressly prayed for in the complaint took place on November
16, 1951.  At the time, one of the donors, Rufo Dumanon, was still alive, as
could clearly be implied from the allegation of the complaint (paragraph
7).  Again, on the basis of the
allegation of the complaint itself on this particular matter, prescription lies
to bar the action for the annulment of the registration of the document,
exactly 14 years having elapsed from the time of said registration on
November 16, 1951 to the filing of this action on January 26, 1965.

Even
admitting as true the allegation that the registra­tion of the deed of donation
was in bad faith and unauthorized, at
action to annul it on the ground
of fraud should have to be filed within 4 years, from discovery of the fraud (Rone, et al. vs. Claro, et al.,
G. R. No. L-4472, May 8, 1952; Gerona vs. de Guzman, supra,
Mapalo vs. Mapalo, 17
SCRA 114).  The fraud is deemed discovered at the latest,
from the date of the registration of the deed of donation, because the registration is notice to the whole
world that the deed of donation had been so registered (Section 51, Act 496).

Another theory deducible
from the allegation of the complaint is that the allegedly unlawful
registration of the deed of donation created an implied trust in favor of the
plaintiffs-appellants as the real owners of the land.  The
defendants in whose name the land was registered became, by the
principle of implied trust, the trustees with the plaintiffs-appellants as cestrui que trust.  Even so, prescription will lie to bar the
present action to enforce the trust, for as held by prevailing jurisprudence,
such action, held to be imprescriptible by earlier decisions, prescribes in 10
years, or even in only 4 years, if fraud had been committed, as when
there is a breach of the fiduciary relation (Miguel vs. Court of Appeals,
L-20271, October 30, 1969, 29 SCRA 760). 
While the rule of imprescriptibility of action
to recover property held in trust may possibly apply to resulting trust as long
as the trustee has not repudiated the trust (Ramos vs. Ramos, 61 SCRA 284) ,
the allegation of the complaint itself shows on its face what may be considered
an unequivocal act of repudiation.  It is
the act of registration by which the registrants obtained title in their names
there­after claiming the property as their own to the exclusion of all others,
with a right to dispose of the property as they did dispose of it when the
defendants Feliza Azote Vda. de Dumanon, widow of Fermin Dumanon who became the
registered owner of the land when the deed of donation was registered, with TCT
No. 80, and their children sold the property to their co-defendants, spouses
Carlos Curilan and Rufina Naranjo, appellees herein, who
obtained TCT No. 479 in their name, thereby serving notice to appellants of the
transaction, who accordingly could not claim ignorance of the sale of the
property to said appellees, Carlos Curilan and Rufina Naranjo.  Even
assuming that a trust resulted by the registration of appellees
of their deed of sale, action for the annulment of the sale has also prescribed
because the complaint itself (paragraph 6) alleged fraudulent conspiracy in the
sale between the heirs of Fermin Dumanon
and appellees spouses, in which case the prescriptive
period is four years from the discovery of the fraud, which should be when the
sale was registered in the Registry of Deeds in 1957.

It is evident, from what has been said, that
plaintiffs-appellants’ action is barred by the lapse of ten years from the time
their cause of action accrued (Dira vs. Tañega, L-23232, June 17, 1970, 33 SCRA 479) whether
appellants’ action is one to annul the deed of donation, or one to annul the
registration thereof, with a view to asking for the reconveyance
of the property to them, as is the ultimate relief prayed for (Reyes vs. Apostol, L-25375, October 30, 1970, 35 SCRA 524) .

With respect to appellees, Carlos Curilan and Rufina Naranjo, who filed the motion to dismiss in question, pre­scription
was properly pleaded as ground for their motion, because if the action has
prescribed as against their vendors, logically it has prescribed also as
against them, as the vendees of the land.

Appellants also contend
that the ground invoked by appellees in their motion
to dismiss and sustained by the lower court, was already available with the
original complaint, even before it was amended, as a result of the granting of the
motion for a bill of particulars which defendants filed; hence, in not filing
the motion to dismiss seasonably the same should be denied, or that the ground therefor should not be sustained for not having been raised
within the time to file the answer.

The time to file a motion
to dismiss is co-terminous with the period to
answer.  This is as expressly provided by the Rules of Court, Section 1, Rule 16 (J.M. Tuason
vs. Rafor, L-15537, June 30, 1962, 5 SCRA 478) .  Hence, as long as the time to file the answer has not
lapsed, a motion to dismiss may
be filed within such time, instead of an answer.  It must be borne in mind that in the present
case, defendants below filed a motion for a bill of particulars.  The running of the period to answer was
thereby suspended.  It is resumed upon
the amended complaint being filed in compliance with the court’s order granting
the motion for a bill of
particulars.  As the time to answer the
amended complaint has not yet lapsed, the filing of a motion to dismiss the
said complaint is equally still within the reglementary
period.  There is, therefore, no occasion
to speak of the ground invoked for the motion to dismiss as already barred for
failure to invoke it, since it was being invoked in the first and only motion
to dismiss filed with demonstrated timeliness.

WHEREFORE, the errors assigned against the order appealed
from having been found to be unfounded, the order appealed from should be as it
is hereby affirmed.  Costs
against appellant.

SO ORDERED.

Makasiar, (Chairman), Concepcion, Jr., Guerrero, and
Escolin, JJ., concur.

Aquino, J., concurring opinion.

Abad Santos, J., in the result.