EUSEBIO DE LA CRUZ, PLAINTIFF AND APPELLEE, VS. APOLONIO LEGASPI AND CONCORDIA SAMPEROY, DEFENDANTS AND APPELLANTS.

In the Court of First Instance of Antique, in November, 1950, Eusebia de la
Cruz sued Apolonio Legaspi and his wife to compel delivery of the parcel of land
they bad sold to him in December, 1949. The complaint alleged the execution of
the contract, the terms thereof, the refusal of defendants to accept payment of
the purchase price of P450 which he had tendered, and undue retention of the
realty.

The defendants, in their answer, admitted the sale and the price; but they
alleged that before the document (of sale) “was made, the plaintiff agreed to
pay the defendants the amount of P450 right after the document is executed the
amount of P450 right after the document is executed that very day December 5,
1949; but after the document was signed and ratified by the Notary Public and
after the plaintiff has taken the original of the said document, the said
plaintiff refused to pay the sum of P450 which is the purchase price of the said
land in question.” They asserted that for lack of consideration and for deceit,
the document of sale should be annulled.

Plaintiff’s next move Was a petition for judgment on the pleadings,
contending that the allegations of the answer gave the defendants no excuse to
retain the property, rejecting the price.

Joining the motion for judgment on the pleadings, the defendants maintained
that the sale should be annulled pursuant to their answer’s allegations.

The Honorable F. Imperial Reyes, iudge, rendered judgment (a)
ordering i plaintiff to pay the price of P450 to defendants; (b)
ordering the latter to receive such price and immediately after such receipt, to
deliver possession of the property to plaintiff.

Having failed in a motion to reconsider, defendants appealed in due time. The
seven errors assigned in their printed brief, assail the correctness of the
judgment, maintaining two principal propositions, namely: (1) the trial judge
erroneously (disregarded their allegations, in their answer of non-payment of
the price, as hereinbefore quoted; (2) such allegations which must be deemed
admitted by plaintiff when he moved for judgement on the pleadings™established a
good defense, because the contract was without consideration, and was resolved
by plaintiff’s failure to pay the price “right after the document was executed.”

As to the first proposition, the decision does not say so, but there is no
reason to doubt that as requested in the plaintiff’s motion, His Honor
considered the allegations made both in the complaint and in the answer.
However, he found that defendants’ allegations constituted no defense. He read
the law correctly, as we shall forthwith explain.

On the second proposition, appellants rightly say that the Civil Code„not the
New Civil Code, regulates the transaction which occured in 1949. Yet they err in
the assertion that as plaintiff failed to pay the price after the execution of
the document in sale as agreed previously, the contract became null and void for
lack of consideration. It cannot be denied that when the document was
signed the cause or consideration existed: P450. The document specifically said
so; and sucn was undoubtedly the agreement. Subsequent non-payment of the price
at the time agreed upon did not convert the contract into one without
cause or consideration: a nudum pactum. (Levy vs. Johnson, 4
Phil. 650; Puato vs. Mendoza, 64 Phil, 457.) The situation was rather
one in which there is failure io pay the consideration, with its resultant
consequences. In other words, when after the notarization of the contract,
plaintiff failed to hand the money to defendants, as he previously promised,
there was default on his part at most, and defendants’ right was to demand
interest—legal interest—for the delay, pursuant to article 1501 (3) of the Civil
Code (Villaruel vs. Tan King, 43 Phil. 251), or to demand rescission in
court. (Escueta vs. Pardo, 42 Off. Gaz. 2759; Cortes vs.
Bibano, 41 Phil. 298.) Such failure,. however, did not ipso facto
resolve the contract, no stipulation to that effect having been alleged. (Cf.
Warner Barnes & Co. vs. Inza, 43 Phil., 505.) Neither was there, any
agreement nor allegation that payment on time was essential. (Cf.
Abella vs. Francisco, 55 Phil., 447; Berg vs. Magdalena
Estate, 92 Phil., 110

Indeed, even if the contract of sale here in question had expressly provided
for “automatic rescission upon failure to pay the price,” the trial judge could
allow plaintiff to enforce the contract, as the. judgment does, in effect
because defendants had not made a previous demand on him, by suit or notarial
act.

“In the sale of real property, even though it may have been stipulated that
in default of the price within the time agreed upon, the resolution of the
.contract shall take place ipso facto, the vendee may pay even after
the expiration of the period, at any time before demand has been made upon him
either by suit or by notarial act. After such demand has been made the judge
cannot grant him further time.” (Art. 1504 CiviJ Code.)

By the way, this previous demand, Manresa explains, is a demand for
rescission. (Manresa Civil Code, Vol. 10, p. 288, 2d Ed.; Villaruel vs.
Tan King, 43 Phil. 251.)

The appealed judgment will therefore be affirmed, with costs against
appellants. So ordered.

Paras, C. J., Padilla, Reyes, A., Jugo, Bautista Angelo Labrador,
Concepcion, and Reyes, J. B. L., JJ., concur.