ALBERTO E. MALICSI, PLAINTIFF AND APPELLEE, VS. ROSALIA A. CARPIZO, ADMINISTRATRIX OF THE ESTATE OF TAN GUAN, DEFENDANT AND APPELLANT.

On March 19, 1958, plaintiff Alberto Malicsi filed with the Court of
First Instance of Zamboanga City a complaint (docketed as Civil Case
No. 717) against defendant Rosalia Carpizo (administratrix of the
estate of Tan Cuan) alleging, inter alia, that on April 6,
1951, plaintiff and the deceased Tan Cuan entered into a Contract of
Lease for a period of seventeen (17) years, covering a portion of Lot
No. P. L. 6, Plan 11-10173, Case 7880, situated in Zamboanga City,
covered by TCT No. T-6370 of the Register of Deeds of Zamboanga City,
which portion contains 180 square meters, more or less, valued at
P5,400.00 and is situated along Guardia Nacional St., at a monthly
rental of P200.00, payable in 10 days of each succeeding month; that
after the death of Tan Cuan in May, 1955, defendant continued making
intermittent rental payments; that despite repeated demands, defendant
failed to pay and refuses to pay the monthly rentals for January and
February, 1958; and that the violation by defendant of the terms in the
lease agreement has compelled plaintiff to employ counsel to enforce
his rights for a stipulated fee of P500.00 for all his services.
Plaintiff prayed that judgment be rendered canceling (rescinding) said
Contract of Lease; that defendant be ordered to vacate the premises in
question and pay to plaintiff the accrued rental of P400.00 for the
period from January and February, 1958, with interest thereon from the
date of the filing of the complaint; and that defendant be ordered to
pay to plaintiff rental at the rate of P200.00 up to the time she
vacates the property, P500.00 as attorney’s fees, and costs.

To this complaint, defendant filed her answer on April 7, 1958,
wherein she admitted the existence of the Contract of Lease, but denied
her failure to pay the rental and asserted that the same has been paid
in advance for at least P700.00 in the form of rentals collected by
plaintiff from a restaurant at the rate of P70.00 a month for ten (10)
months, to which defendant claims she was entitled. As special
defenses, defendant alleged that the money of the administration has
been deposited with the Clerk of Court of Zamboanga City and nobody
could make withdrawals therefrom, because of a certiorari case with
prohibition pending before the Supreme Court, filed by one Tan Gin San
against defendant. By way of counterclaim, defendant prayed that
plaintiff be ordered to pay to her P700.00 corresponding to the 10
monthly rentals of said restaurant and the sum of P25,000.00 as moral
damages and P3,000.00 as attorney’s fees. (To this counterclaim,
plaintiff filed his answer on April 16, 1958).

Issues having been joined, the case was tried and, after trial, the
court, on March 16, 1960, rendered a decision in favor of plaintiff and
against defendant, in part reading:

“After plaintiff completed the submission of his
evidence, defendant offered no evidence in support of her defense and
admitted her account with the plaintiff, but at the same time,
reiterating her promise to pay all the rentals due the plaintiff by
installments.

“After defendant manifested that she was not
submitting any evidence for the defense, plaintiff submitted
documentary evidences; the contract of lease which is marked as Annex
‘A’ of the complaint and which for purposes of , identification was
marked as Exhibit ‘A’ for the plaintiff; Exhibit ‘B’, a petition of the
defendant in Special Case No. 411 asking this Court to allow her to
withdraw the sum of P1,800.00 to cover rents from the months of
January, February, and March inclusive; to pay rentals on the lot
belonging to Mrs. Julia Spirig Suter; Exhibit ‘C’ an order of the Court
allowing defendant to withdraw Pl.800.00 to pay rentals due to Mrs.
Julia Spirig Suter from the months of January, February, and March
inclusive; Exhibit ‘C-1’, ‘C-2’, and ‘C-3’, which are excerpts from the
report submitted by defendant in Special Case No. 411 in her capacity
as administratrix of the estate of the late Tan Cuan showing payments
made by her to Mrs. Julia Spirig Suter. With the submission of these
exhibits together with the testimony of the plaintiff, the plaintiff
rested his case. Both parties then manifested that they were submitting
this case for the decision by this Court without further argument and
without the submission of any memorandum.

“WHEREFORE, In view
of the foregoing, the Court renders judgment in favor of the plaintiff
and against the defendant declaring the contract of lease dated April
6, 1951 marked as Annex ‘A’ of the complaint and identified as Exhibit
‘A’ for the plaintiff as canceled and ordering the defendant in her
capacity as administratrix of the estate of the late Tan Cuan to vacate
the premises in question within 30 days from receipt of this decision;
to pay to plaintiff the accrued rentals of P400.00 for the period of
January and February, 1958 with 6% interest thereon from the date of
the filing of the complaint; to pay to plaintiff rentals at the rate of
P200.00 monthly up to the time defendant vacates the premises; to pay
to plaintiff P500.00 as attorney’s fees; and to pay the costs of these
proceedings. The counterclaim filed by the defendant is hereby ordered
dismissed. “So ordered.”

Her motion for reconsideration of said decision having been denied
by the trial court, defendant appealed directly to this Court.

Appellant claims that the trial court erred in declaring the
Contract of Lease in question as cancelled (rescinded). It is urged
that a lease contract is not one of those declared rescissible under
Article 1381 of the Civil Code. The claim is devoid of any merit.
Paragraph (5) of this same article expressly includes “all other
contracts specially declared by law to be subject to rescission”. And,
Article 1659 of the same Code expressly provides, among others, that if
the lessee should not comply with his obligation of paying the price
(rental) of the lease according to the terms stipulated), “the aggrieved party may ask for the rescission
of the contract and indemnification for damages, or only the latter,
allowing the contract to remain in force”. In the instant case,
appellant failed and refused to pay the monthly stipulated rental of
the property subject matter of the aforementioned lease contract for
the months of January and February, 1958. Consequently, appellee had
the right under said provision of the Civil Code to bring, as he did,
the present action for rescission of said Contract of Lease, and the
trial court correctly declared the rescission thereof. Appellant claims
that she had not defaulted in the payment of said rental as no demand
to make payment was made on her by appellee. This is a question of fact
which can not be raised here and the finding of the lower court to this
effect is binding on us.

Appellant next contends that appellee’s claim for unpaid rentals is
one for money arising out of an express contract, and should,
therefore, be filed as a claim against the estate of the late Tan Cuan
of which she is administratrix. Again, the contention is untenable.
Section 1, Rule 88, of the Rules of Court, provides:

“SECTION 1. Actions which may and which may not be brought against executor or administrator.—No
action upon a claim for the recovery of money or debt or interest
thereon shall, be commenced against the executor or administrator; but actions to recover real or personal property
from the estate, or to enforce a lien thereon, and actions to recover
damages for an injury to person or property, real or personal, may be
commenced against him.” (Italics supplied.).

The present action, it is to be noted, is principally to rescind the
lease contract and to recover the possession of the real property
subject of the lease, and only secondarily to recover the rentals due
and unpaid. Consequently, the action falls within the purview of the
last clause of the above-quoted provision which can be commenced
against the administratrix. Besides, only money claims accruing before
the decedent’s death may be filed against his estate. The late Tan Cuan
with whom appellee had entered into the Contract of Lease in question
on April 6, 1951, died on May 1, 1955, and appellant administratrix of
his estate, continued paying the rentals due the appellee under said
contract until January, 1958 when she started defaulting. The rents
accruing after May 1, 1955 (date of Tan Cuan’s death) can not,
therefore, be properly filed against his estate under said Section 1,
Rule 88, of the Rules of Court.

Wherefore, finding no reversible error in the decision appealed
from, the same is hereby affirmed, with costs against the
defendant-appellant. So ordered.

Bengzon, CJ., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Dizon, Regala and Makalintal, JJ., concur.