CONSOLACION C. VDA. DE VERZOSA, PAZ VERZOSA, JOSE VERZOSA, VICENTE VERZOSA, CRISPULO VERZOSA, AND RAYMUNDO VERZOSA, PLAINTIFFS AND APPELLANTS, VS. BONIFACIO RIGONAN, SEGUNDO NAC…

Plaintiffs instituted this action in the Court of First Instance of
Ilocos Norte praying that judgment be rendered (1) declaring null and
void the actuations of the clerk of court and of the sheriff of said
province on the ground that they are in contravention of law; (2)
declaring null and void the order of the court dated July 18, 1941 on
the same ground; (3) ordering defendants to pay plaintiffs damages in
the amount of P10.000; and (4) ordering defendants to pay the costs of
action.

The averments of the complaint are: Luis Verzosa, on February 5,
1931, executed a real estate mortgage for the sum of P3,500 in favor of
Ignacio Valcarcel on a parcel of land situated in the municipality of
Dingras, Ilocos Norte. On July 13, 1932, the mortgage creditor filed an
action to foreclose the mortgage (Civil Case No. 3537) and after trial,
at which the parties submitted a compromise agreement, the court
rendered decision in accordance with said agreement. On April 20, 1934,
a writ of execution was issued by the clerk of court ordering the
sheriff to sell at public auction the property described therein for
the satisfaction of the judgment. On November 28, 1934, or seven months
after the issuance of the writ, the sheriff returned the writ with a
statement of the action he had taken thereon. On December 12, 1934, the
clerk of court issued another writ of execution, and the sheriff,
acting thereon, announced the sale of twenty parcels of land belonging
to the judgment debtor instead of the parcels of land described in the
writ. On January 15, 1935, the sheriff sold several parcels of land to
Bonifacio Rigonan and Rafael Valcarcel, and on May 21, 1936, the
sheriff issued a final deed of sale in their favor.

On March 10, 1936, counsel for judgment creditor requested the clerk
of court to return the writ to the sheriff so that other property may
be levied in execution for the satisfaction of the balance of the
judgment which remained unsatisfied, which request was granted. And on
October 15, 1936, the sheriff sold other parcels of land in favor of
Bonifacio Rigonan and Irineo Ranjo, the latter in behalf of Rafael
Valcarcel, heir of the judgment creditor who had already died.

On July 7, 1938, counsel for judgment creditor again requested the
clerk of court for an alias writ of execution, but instead of
submitting to the court said request for resolution, the clerk of court
issued a decree reiterating the original writ which was carried out by
the sheriff. On February 17, 1941, Rafael Valcarcel sold to Bonifacio
Rigonan and Segundo Nacnac one of the parcels of land sold by the
sheriff for P100, and on July 18, 1941, an order was issued placing
Bonifacio Rigonan in possession of said property.

The present action was instituted on September 19, 1950 praying for
the nullification of the actuations of the clerk of court and the
provincial sheriff as stated in the early part of this decision.

Defendants filed a motion to dismiss on the following grounds: (1)
that the action of the plaintiffs has prescribed; (2) that there is a
former judgment which bars said action; and (3) that the complaint
states no cause of action. Copy of the decision above referred to was
made a part of the motion.

The above motion having been submitted to the court for decision,
the latter found that the action had already prescribed it appearing
that the actuations which are sought to be nullified took place more
than ten years ago. As regards the ground that there is a prior
judgment which bars the present action, the court ruled that the same
cannot be entertained because it involves a question of fact which does
not appear admitted in the complaint. The court expressed the opinion
that no affidavit or evidence can be considered on a motion to dismiss
because the sufficiency of a complaint should be tested on the basis of
the facts alleged therein. The court, however, allowed the plaintiffs
to amend their complaint within five days from receipt of the order in
accordance with the discretion given to it by the rules of court.

Taking advantage of this grace, plaintiffs submitted an amended
complaint wherein they reiterated the same facts with some clarifying
modifications. Defendants reiterated their motion to dismiss on the
same grounds. And finding no substantial difference between the
original and the amended complaints, the court ordered the dismissal of
the case without pronouncement as to costs. After the case had been
taken to the Court of Appeals, it was later certified to this Court on
the ground that the appeal involves purely questions of law.

A cursory reading of the amended complaint will reveal that the
actuations of the clerk of court, as well as of the sheriff, which are
sought to be nullified are: the writ of execution issued by the clerk
of court on December 12, 1934, as well as the sales and other
actuations executed by the sheriff by reason of said writ of execution;
the decree of the clerk of court issued on May 21, 1936, as well as the
sales and other actuations of the sheriff made in pursuance thereof;
the decree of the clerk of court issued on July 7, 1938, as well as the
actuations of the sheriff made in compliance with said decree; and the
assignment made by Rafael Valcarcel of his right and interest in the
land sold on February 17, 1941 to defendants Bonifacio Rigonan and
Segundo Nacnac. And as a necessary consequence, plaintiffs also asked
for the nullification of the order of the court dated July 18, 1941
placing Bonifacio Rigonan in possession of the land sold to him.

It appears from the above recital that the acts and decrees which
are sought to be nullified took place, more than ten years prior to the
filing of the present action, and since under Article 44 of Act No. 190
an action of this nature prescribes in ten years, it follows that the
action of the plaintiffs is already barred by the statute of
limitations. If the aforesaid acts can no longer be nullified, it also
follows as a legal consequence that no action can be taken on the order
of the court issued on July 18, 1941 directing the sheriff to place
Bonifacio Rigonan in possession of the parcel of land sold to him
because of the principle that possession must follow ownership unless
ordered otherwise.

As regards the second ground invoked in the motion to dismiss no
affidavit or extraneous evidence can be considered to test the
sufficiency of a complaint except the facts alleged in the same
complaint. We hold that under Section 3, Rule 8, a motion to dismiss
may be proved or disproved in accordance with Rule 123, Section 100,
which provides: “When a motion is based on facts not appearing of
record the court may hear the matter on affidavits or depositions
presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or depositions.” And
in our opinion the copy of the decision attached to the motion, which
is not disputed, may be considered as sufficient evidence under the
rule to prove the existence of a prior judgment between the same
parties. In this sense, the second ground of the motion to dismiss may
also be entertained to test the sufficiency of the cause of action of
the plaintiffs.

Wherefore, the order appealed from is affirmed, without pronouncement as to costs.

Paras, C. J., Pablo, Bengzon, Montemayor, Reyes, Jugo, Labrador, Concepcion, and Diokno, JJ., concur.