G.R. No. L-35615. February 17, 1977
FRANCISCA GATCHALIAN, PETITIONER, VS. HON. JESUS P. ARLEGUI, JUDGE, COURT OF FIRST INSTANCE, BRANCH I, BAYOMBONG, NUEVA VIZCAYA; MIGUEL GUEVARA, PROVINCIAL SHERIFF, NUEVA VIZCAY…
AQUINO, J.:
These two related cases have a common factual background.
L-35615. – Before the war Francisca Gatchalian (Aling Kikay) and Paz Tanwangco (who are
now both over eighty-seven years old) were good friends who lived together in
the same house located at Solano, Nueva Vizcaya. Whether
they were partners and acquired properties with common funds is a matter of
controversy. They were separated because
of the war. Paz Tanwangco
evacuated to Pangasinan. Francisca Gatchalian
presumably remained at Solano.
In 1965 Paz Tanwangco sued Francisca Gatchalian in the Court of First Instance of Nueva Vizcaya for the recovery of
her alleged share in Lots 25 and 28 which were registered in Francisca’s name (Civil Case No.
1454).
Judge Jose D. Parayno in a decision
dated August 30, 1969 ordered Francisca Gatchalian
(1) to reconvey and deliver the possession to Paz Tanwangco of “one-half undivided portion
of Lots 25 and 28 of the Solano cadastre” and the improvements thereon and
(2) to pay her the sum of P18,895 as one-half of the accrued rentals up to
July, 1967 and P145 monthly until the possession is delivered to Paz, with
legal rate of interest from the date of the finality of the judgment, plus
P2,000 as attorney’s fees.
Francisca Gatchalian appealed to the
Court of Appeals. Her appeal was
dismissed because she did not file her brief on time (Tanwangco
vs. Gatchalian, CA-G.R. No. 45054-R, Resolutions of
October 16, 1970 and August 31, 1971).
She filed in this Court a petition for certiorari to annul
those resolutions. Her petition was
dismissed for lack of merit (Gatchalian vs. Tanwangco, L-34138, Resolution of October 26, 1971. Entry of judgment therein was made on November 16, 1971).
After the remand of the record, the lower court, upon motion of
Paz Tanwangco, issued an order of execution dated January 25, 1972. On that same date, the clerk of court under
the direction of Judge Vicente M. Tupasi, instead of
issuing only a writ of execution, issued also a “writ of possession”,
commanding the provincial sheriff “to require” Francisca Gatchalian “to reconvey
one-half (1/2) undivided portion of Lots 25 and 28″ and “to
place” Paz Tanwangco “in possession of said
one-half (1/2) undivided share“.
(Lot 25 appears to belong to a third
person. See p. 2 of Request for Oral
Argument dated November 17, 1971
in L-34138).
The deed of reconveyance in favor of
Paz Tanwangco was executed by the clerk of court on February 8, 1972. On that same day it was registered. A title was issued to Paz Tanwangco
for Lot 28-A, with an area of 1,925 square meters, as her one-half share.
The sheriff levied upon the other half of Lot
28, or Francisca Gatchalian’s share, in order to
satisfy the judgment in favor of Paz Tanwangco for
the accrued rentals, attorney’s fees
and costs that had already reached the sum of P35,853.60. He scheduled the auction sale on May 2, 1972.
Meanwhile, on March 7,
1972 Francisca Gatchalian sued Judge Parayno, Paz Tanwangco and the
provincial sheriff also in the Court of First Instance of Nueva
Vizcaya in order to annul the 1969 judgment in Civil
Case No. 1454 and the execution and levy on one-half of Lot No. 28. The second case was docketed as Civil Case No. 1944. It was predicated on
the theory that Paz Tanwangco’s action in Civil Case
No. 1454 had already prescribed under the Code of Civil Procedure, the
provisions of which were allegedly not applied by the trial court.
Paz Tanwangco filed a motion to dismiss
the complaint on the ground of res judicata. Judge
Gabriel Dunuan in his order of March 27, 1972 dismissed it.
Francisca Gatchalian then filed in
Civil Case No. 1454 a motion dated April
18, 1972 for stay of execution.
She asked the court to “take cognizance” of the parties’
compromise agreement and to terminate the two cases.
In that motion Francisca Gatchalian
quoted and annexed Paz Tanwangco’s letter of March
20, 1972 to her counsel, Dominador S. La Madrid,
wherein Paz offered to compromise the judgment in Civil Case No. 1454 by
waiving her claim to the rentals and cancelling the
auction sale if Francisca would withdraw her complaint in Civil Case No.
1944, cancel her notice of lis pendens on the title of Lot 28-A and agree that they
would simply divide that lot equally as adjudged in Civil Case No. 1454. Said letter reads as follows:
“923 R. Papa St. Sampaloc
Manila
TRANSLATION March 20, 1972
“Dr.
Dominador S. La Madrid
Abogado
ni Francisca Gatchalian
Caso
Civil No. 1454 at Caso Civil No. 1944
Juzgado
de Primera Instancia, Nueva Vizcaya
No. 266 E. Rodriguez, Sr. Blvd., Q.C.
“Dear Dr.
La Madrid:
“I am thanking you for your goodness and kindness when I went
to your house yesterday with my nephew Oscar Tanwangco.
“I received a copy of the new complaint of Francisca Gatchalian against me, Judge Parayno
and the Sheriff of Nueva Vizcaya
(Civil Case No. 1944 of the Court of First Instance of Nueva
Vizcaya), which you signed as her lawyer.
“Because I want our case with Francisca Gatchalian
terminated so that this new Civil Case No. 1944 will not continue any more,
besides both of us are already old with Aling Kikay, I have decided to amicably settle with Francisca Gatchalian in the following manner:
“1. She will withdraw from the Court her
new case and not continue the same against me, what I mean is that she will
have the case dismissed in Court;
“2. Francisca Gatchalian
will no longer complain against me with respect to damages because of our first
case, Civil Case No. 1454;
“3. That Francisca Gatchalian
will no longer come to court and go after the one-half portion of the land
already transfered to me and registered in my name in
the Register of Deeds of Nueva Vizcaya;
“4. That Francisca Gatchalian
will do away or have cancelled or erased the Notice of lis
Pendens which she filed against me in the Register of
Deeds of Nueva Vizcaya and
for her to allow free the new title now in my name with respect to the one-half
portion of the land subject of our controversy in Civil Case No. 1454;
“5. As for me, I will no longer run
against Francisca Gatchalian with respect to the
one-half rental of the land and the other properties mentioned in the Decision
of Judge Jose D. Parayno in Civil Case No. 1454,
dated August 31, 1969 against Francisca Gatchalian in
Civil Case No. 1454, including others which she should pay according to the
said Decision, like the attorney’s fee and the costs;
“6. That I will have discontinued the public
auction sale under the direction of the
Sheriff of Nueva Vizcaya
with respect to the one-half portion of the land under the sole ownership of
Francisca Gatchalian TCT No. 4398 (RT-563), Solano
Cadastre, so that the said public auction sale will not continue;
“Dr. La Madrid,
if these conditions here are accepted by Francisca Gatchalian
and she signs hereon, this is the amicable settlement which we can present to
the Court inorder to end the cases. Just have this signed and inform me.
Respectfully,
“(SGD)
OSCAR F. TANWANGCO (SGD.)
PAZ TANWANGCO
(Nephew)”
Francisca Gatchalian alleged in her
motion that she had accepted Paz Tanwangco’s offer of
compromise and that her counsel in a letter dated March 25, 1972 notified Paz of her acceptance. Francisca prayed that the two cases be
terminated and that the court “take cognizance” of the amicable
settlement.
Pursuant to that amicable settlement and in consonance with
section 1, Rule 17 of the Rules of Court, Francisca Gatchalian
filed in the lower court on April 25,
1972 a notice for the dismissal of her action in Civil Case No.
1944. The defendants therein had not
yet answered her complaint. (However, as already stated, the lower court upon Paz Tanwangco’s motion, dismissed Civil Case No. 1944 in
its order of March 27, 1972).
Also pursuant to the amicable settlement, Francisca Gatchalian’s counsel wrote a letter to the register of
deeds of Nueva Vizcaya cancelling her notice of lis
pendens on Tanwangco’s
title to Lot 28-A. The notice of lis pendens was
cancelled on April 28, 1972
(See back of TCT No. T-32210, p. 134 Rollo).
Paz Tanwangco’s lawyer opposed
Francisca Gatchalian’s motion to stay execution and
for the taking cognizance of the compromise agreement, the cancellation of the
auction sale and the termination of the two cases. He alleged that the signature of the
eighty-six year old Paz Tanwangco in the compromise
agreement, which was drafted by Francisca Gatchalian’s
counsel, was secured by said counsel through trickery, deceit and intimidation.
Paz Tanwangco’s counsel further
observed that Francisca Gatchalian’s counsel violated
Canon No. 9 of the Code of Legal Ethics that “a lawyer should not in any
way communicate upon the subject of the controversy with a party represented by
counsel; much less should he undertake to negotiate or compromise the matter
with him, but should deal only with his counsel.”
Paz Tanwangco’s lawyer also contended
that Francisca Gatchalian’s notice of dismissal and
cancellation of the notice of lis pendens were unnecessary because of the lower
court’s order of dismissal dated March
27, 1972.
The opposition of Paz
Tanwangco’s counsel to Francisca Gatchalian’s
motion to stay execution provoked Francisca to file in the lower court on June 3, 1972 another case
against Paz Tanwangco to enforce the compromise
agreement and to claim damages in the sum of P90,000. Tanwangco’s
counsel, Eleodoro Benitez, was impleaded
as a codefendant. The case was docketed
as Civil Case No. 1974. (It was later
dismissed in Judge Dunuan’s order of August 1, 1973
because of the pendency in Civil Case No. 1454 of the
motion for approval of the
compromise.)
On August 22, 1972,
the last time Francisca Gatchalian’s motion to stay execution was set for hearing, she and her counsel did not appear. In view of their nonappearance, Judge Jesus
P. Arlegui denied the motion. He directed that the auction sale should be
held.
Francisca Gatchalian moved for the
reconsideration of the order of denial.
She alleged that she and her counsel never received any notice setting
their motion for hearing on August 22,
1972.
Judge Arlegui denied the motion in his
order of September 28, 1972. He reasoned out that the auction sale could
no longer be suspended because
the writ of execution had already been enforced. He intimated that the effect of the
compromise on the judgment should have been raised in Civil Case No. 1944.
On October 12, 1972,
Francisca Gatchalian filed the instant special civil actions of certiorari
and prohibition in order to annul Judge Arlegui’s
orders of August 22 and September 28,
1972.
A temporary restraining order was issued. The auction sale was suspended. The respondents answered the petition.
Ruling. – The issue is whether the judgment in Civil
Case No. 1454 was novated and superseded by the
alleged compromise.
Should Lot 28 be divided equally between
the two octogenarian female adversaries, as originally intended by the trial
court? Should Paz Tanwangco’s
claim for P35,853.60
as rentals be deemed waived or
extinguished because of the compromise?
We have set forth all the
relevant facts so that the case can be viewed in proper perspective and the
merits of the two antagonists’ contentions can be justly evaluated. It is lamentable that due to the fault of
Francisca Gatchalian’s counsel she was deprived of
her right to a review of Judge Parayno’s 1969
decision.
After a scrupulous and painstaking study of the facts and
equities of the case, we have reached the conclusion that the compromise
already mentioned should be enforced but subject to the condition that
Francisca Gatchalian should pay attorney’s fees of P2,000 adjudged in
Judge Parayno’s decision.
The lower court refused to enforce the compromise because in its
opinion the judgment had already been executed and could no longer be novated by the parties.
That stand is not well-taken. The
undeniable fact is that the judgment has not yet been fully satisfied because
the monetary liability of Francisca Gatchalian, under
the lower court’s judgment, in the sum of P35,853.60,
has not yet been paid. (See sec. 47,
Rule 39, Rules of Court as to the entry of satisfaction of judgment).
On the other hand, the lower court did not find that the offer of
compromise made by Paz Tanwangco was vitiated by
duress or undue influence.
Hence, the lower court’s orders, which authorize the auction
sale, should be set aside. It is to the
interest of the two octogenarians (now nearing ninety years) that this
long-drawn out litigation be terminated as soon as
possible. We believe that the ruling
already announced is a judicious and equitable solution of the case.
L-41360
– Contempt incident. – As stated in our discussion of L-35615, the
lower court in its judgment of August 30, 1969 ordered Francisca Gatchalian “to reconvey and
deliver possession” of an undivided
one-half portion of Lot 28 of the Solano cadastre (with an area of 3,851 square
meters) and to pay rentals and attorney’s fees.
That judgment became final. We
have already stated that on January 25, 1972 Judge
Vicente M. Tupasi issued an order of execution, writ
of execution and a writ of possession to enforce that judgment. In the writ of possession the sheriff was
commanded to eject all adverse occupants of Lot 28.
As also noted in L-35615,
that judgment was enforced by conveying to Paz Tanwangco
not merely the proindiviso one-half portion of
Lot 28 but a segregated one-half share, identified as Lot 28-A (with an
area of 1,925 square meters) and covered by TCT No. T-32210, and by the
issuance of a “writ of possession” whereby Paz Tanwangco
was given not merely the juridical or civil possession of a one-half
portion but was placed in physical possession of Lot 28 and the
improvements thereon. (See
sheriff’s return of March 14, 1972, p. 45, Rollo).
It appears that Lot 28 was later
subdivided into Lots 28-A and 28-B. The
record shows that Florante Tupasi,
the sixteen-year old grandson of former Judge Vicente Tupasi,
bought on November 8, 1973 from Paz Tanwangco for
P30,000 and other valuable considerations two-thirds of Lot 28-A (which 2/3
portion has an area of 1, 283 square meters).
TCT No. 37091 (T-38958) was issued to Florante
Tupasi (pp. 69 and 292, Rollo).
Note that Judge Tupasi, who retired on July 19, 1973, was the same Judge who
on January 25, 1972 issued
the order of execution and the writs of execution and possession. (See art. 1491, Civil
Code).
The other one-third portion of Lot 28-A appears to have been sold
by Paz Tanwangco to the spouses Ricardo Tiongson and Anita Angeles and to Atty. Eleodoro
M. Benitez (pp. 46 and 279, Rollo).
Former Judge Tupasi, as guardian ad litem
of his minor grandson, Florante, filed in Civil Case
No. 1454 a petition dated January 21, 1974 to declare Tan Chiao
Chay, Tang Tee and Tiu Tik Chay, as alleged occupants of
Lot 28-A, in contempt of court for having disobeyed the writ of possession (the
same writ that Judge Tupasi issued on January 25, 1972). He prayed that an order be issued for the demolition
of respondents’ improvements.
Tang Tee and Tiu Tik
Chay, in their answer to the petition to declare them
in contempt of court, alleged that the parents of the minor, Florante Tupasi, should act as his
guardians and not Judge Tupasi; that the lower court
had no jurisdiction over them, and that the building on the lot sold to Florante Tupasi belongs to Solodonia Ramos and Rogelio Tiu
and not to Tang Tee and Tiu Tik
Chay and, therefore, they (Tang Tee and Tiu Tik Chay)
did not disobey any court process and were not guilty of contempt of court.
Tang Tee and Tiu Tik
Chay further contended that the motion for contempt
is not in order because they, as well as Florante Tupasi, are strangers in Civil Case No. 1454.
The lower court in its order of December 4, 1974 held that Tang
Tee and Tiu Tik Chay, as heads of the families occupying the buildings
constructed on Lot 28-A, were bound to obey the writ of possession. It found them guilty of contempt of court and
sentenced each of them to pay a fine of two hundred pesos, with subsidiary
imprisonment in case of insolvency.
It required them to vacate Lot 28-A, to remove or demolish their
improvements within sixty days from the finality of the order, and, in case they
fail to do so, the sheriff was directed to eject them and to demolish their
buildings at their expense.
The issues are whether Tang Tee and Tiu
Tik Chay could be adjudged
in contempt of court in Civil Case No. 1454, although they were not parties
therein, and whether the lower court could order them to vacate the portions of
Lot 28-A allegedly occupied by
their families and compel the demolition of their alleged improvements.
We hold that in Civil Case No. 1454 the lower court has no
jurisdiction to adjudge petitioners Tang Tee and Tiu Tik Chay in contempt of court and
to eject them from Lot 28-A.
The 1969 judgment of Judge Parayno is a
judgment in personam, requiring Francisca Gatchalian to deliver to Paz Tanwangco
the possession of “one-half undivided portion of” Lot 28. It is not a judgment in rem. It is conclusive, not against the whole
world, but only “between the parties and their succesors
in interest by title subsequent to the commencement of the action”,
“litigating for the same thing and under the same title and in the same
capacity” (Sec. 49, Rule 39, Rules of Court; Lopez vs. Director of Lands,
47 Phil. 23, 30).
Since the judgment orders the delivery of the possession of the
one-half proindiviso portion of Lot 28, it is
evident that what it contemplates is the symbolical or constructive delivery of
the civil or juridical possession and not the natural or material possession
(possession de facto) which has been actually held for Francisca Gatchalian by other persons (See arts. 523, 525 and 531,
Civil Code).
It should be noted that in co-ownership “each co-owner owns
the whole, and over it he exercises rights of dominion, but at the same time he
is the owner of a share which is really abstract because until the division is
effected, such share is not concretely determined” (Lopez vs. Gonzaga Vda. de Cuaycong, 74 Phil. 601, 604-605). While there is co-ownership, a co-owner’s
possession of his share is co-possession which is linked to the
possession of the other co-owners.
Under the judgment, Paz Tanwangco was
entitled to a writ of execution but not specifically to a so-called “writ
of possession”, commanding the sheriff “to eject all adverse
occupants” of Lot 28.
The law specifies the instances when a “writ of
possession” may be issued. Thus, a
writ of possession is available in a land registration proceeeding,
a proceeding in rem (Sec. 17, Act 496; Estipona vs. Navarro, L-41825, January 30, 1976, 69 SCRA
285, 291) and in case of extrajudicial foreclosure of a realty mortgage (Sec.
7, Act No. 3135), and even in judicial foreclosure (a quasi in rem proceeding) provided that the debtor is in
possession of the mortgaged realty and no third person, not a party
to the foreclosure suit, had intervened (Rivera vs. Court of First Instance of Nueva Ecija and Rupac, 61 Phil. 201; Ramos vs. Mañalac
and Lopez, 89 Phil. 270, 275).
The judgment in Civil Case No. 1454 did not authorize the
issuance of a writ of possession or the ejectment of
the occupants of Lot 28.
The issuance of such writ varied the terms of the judgment. The writ was void. Hence, Tang Tee and Tiu
Tik Chay could not be
adjudged in contempt for having allegedly disobeyed the void writ.
Even in execution sales, the possession of the property sold
cannot be given to the purchaser or last redemptioner
if “a third party is actually holding the property adversely to the
judgment debtor” (Sec. 35, last par., Rule 39, Rules of Court).
Moreover, there is merit in petitioners’ contention that the
judgment in Civil Case No. 1454 is not binding on them since they (like respondent Florante
Tupasi, the movant in this
contempt incident) were not parties thereto.
Generally, it is axiomatic “that no man shall be affected by
proceedings to which he is a stranger” (Ed. A. Keller & Co. vs. Ellerman & Bucknall Steamship
Co., 38 Phil. 514, 520).
“As a general rule, persons who are not parties to an action
or proceeding are not subject to the jurisdiction of a court trying a case, are
not supposed to be aware of the court’s order and cannot, therefore, be declared guilty of contempt for
violating its orders” (Ferrer vs. Rodriguez, 116
Phil. 1, 5).
The “writ of
possession” was addressed to the sheriff, not to Tang Tee and Tiu Tik Chay. It was a process intended to enforce a
judgment “for the delivery of the possession of real or personal property
as contemplated in section 8[d], Rule 39 of the Rules of Court. The “writ of possession” was not
intended to enforce a special judgment for the delivery of real property as
contemplated in section 9 of Rule 39.
It is that disobedience to the execution of a special judgment which may
be punished as contempt.
In this case, the sheriff
did not execute the mandate in the “writ of possession” to eject the
adverse occupants. Mere disobedience
to the writ of possession, which was addressed to the sheriff and not to the adverse
occupants, did not render the adverse occupants guilty of contempt of
court (Goyena de Quizon vs.
Philippine National Bank, 85 Phil. 459;
U.S. vs. Ramayrat, 22 Phil. 183; Mendoza vs. Alano and Salceda, 112 Phil.
445).
In adjudging the
petitioners in contempt of court, the trial court relied on Heirs of B.
A. Crumb vs. Court of Appeals, L-26167,
January 30, 1970, 31 SCRA 271. That
case, wherein it was held that a contempt order is appealable
(here, petitioners’ appeal from the contempt order was not allowed), is different from the instant case.
Paz Tanwangco
herself could not have ejected Tang Tee and Tiu Tik Chay by means of a writ of
possession. Francisca Gatchalian, as their lessor,
could not forcibly drive them away from the leased premises if they refused to
vacate it. She has to resort to an ejectment
action.
In Omnas
vs. Rivera, 67 Phil. 419, which involves an execution sale, it was noted that
“the writ of possession is nothing more than a complement of the writ of
execution which, without the former, is ineffective; for it would be useless to order a sheriff to sell a real
property of a judgment debtor if after the sale is made in the manner provided
by law the purchaser, after the expiration of the period of redemption, may not
enter upon the possession of the property thus purchased”. That ruling in the Omnas
case has no application to this case because here there was no execution sale.
The lower court, in
sanctioning the summary procedure or shortcut resorted to by Florante Tupasi in order to get
possession of the portions of Lot
28, held by the lessees of Francisca Gatchalian,
acted in excess of jurisdiction and with grave abuse of discretion. Its order declaring Tang Tee and Tiu Tik Chay
in contempt of court and
ordering the demolition of the improvements is arbitrary and oppressive.
The issue of whether Florante Tupasi could recover possession
of the portions occupied by Tang Tee and Tiu Tik Chay should be litigated in a
separate action. He cannot recover
possession by means of a writ of execution or “writ of possession”
(See Roman Catholic Archbishop of Caceres vs. De la
Cruz, L-25496, December 27, 1969, 30 SCRA 881; Olego
vs. Rebueno, L-39350, October 29,
1975, 67 SCRA 446, 456).
The cases relied upon by Tupasi (p. 276 of Rollo) refers
to land registration cases or to the recovery of possession “from the
losing party” and not from third persons who were not parties to the case.
Tupasi’s contention that, to require him to file an accion publiciana
against Tang Tee and Tiu Tik
Chay would only result in multiplicity of suits, is not tenable.
Due process requires the filing of such an action.
WHEREFORE, in L-35615, the lower court’s orders
of August 22 and September 28, 1972 are set aside.
The compromise agreement,
whereby Paz Tanwangco and Francisca Gatchalian agreed to divide equally Lot 28 (Lot 28-A as Paz
Tanwangco’s share and Lot 28-B as Francisca Gatchalian’s share) and Paz Tanwangco
waived her claim to the rentals, is hereby approved subject to the condition
that Francisca Gatchalian should pay to Paz Tanwangco the attorney’s fees amounting to P2,000, as adjudged in the final and executory
judgment in Civil Case No. 1454. No
costs.
In L-41360, the contempt incident, the lower court’s
orders of December 4, 1974 and March 12, 1975, which were issued in excess of
jurisdiction and with grave abuse of discretion, are also set aside without
prejudice to litigating in a separate action the issue of whether Florante Tupasi can recover
possession of the portions of Lot 28-A allegedly occupied by petitioners
Tang Tee and Tiu Tik Chay. No costs.
SO ORDERED.
Fernando, (Chairman), Barredo,
Antonio, and Concepcion,
Jr., JJ., concur.