ASSOCIATED INSURANCE & SURETY CO., INC., PLAINTIFF-APPELLEE, VS. ANTONIO BANZON AND ROSA BALMACEDA, DEFENDANT-APPELLANTS.

In Civil Case No. 31237 of the Court of First Instance of Manila,
Branch IV, entitled “Associated Insurance and Surety Co., Inc., vs. Maximo Sta. Maria and Antonio R. Banzon“,
judgment was rendered as follows:

“IN VIEW WHEREOF, the court renders judgment condemning
defendants to pay jointly and severally unto plaintiff but for the benefit of
the Philippine National Bank the amounts of P6,100.00, P9,346.44 and
P14,811.42, all with interest at the rate of 12% per annum from date of the
filing of the complaint until fully paid, (b) to pay the amount of P593.76 representing
premiums and documentary stamps due on the renewal of the bonds Annexes ‘E’ and ‘C: 
(c) plus 15% as attorney’s fees, and costs.  This 15% end the interest to be paid for the
benefit only of the plaintiff; and no pronouncement as to costs.”

As the above decision
became final and executory, the corresponding writ of
execution was issued and levy was made upon the properties of the
judgment debtor Antonio R. Banzon covered by Transfer Certificates of Title
Nos. 39685 and 53759 issued in his name by the Register of Deeds of Rizal.  The first
covered a parcel of land containing an area of 650 square meters situated in
Barrio Calaanan, Caloocan, Rizal
and the second, another parcel of 650 square meters situated in the same barrio
of the same municipality.  After the proceedings required by law
in connection with execution sales, the aforesaid properties were sold, the
judgment creditor, Associated Insurance and Surety Co., Inc., having been the highest bidder, for the total sum of P41,000.00. 
The Sheriff of Rizal issued in its favor the
corresponding certificate of sale dated June 27, 1957, which was duly registered on June 30,
1959.  As the period of redemption expired on June 20,
1960 without the
judgment debtor, or any proper party having exercised it, the judgment creditor and purchaser obtained in due time the
corresponding final certificate of sale, which was likewise duly registered.

In view of the foregoing, herein petitioner-appellee
made demands upon Antonio R. Banzon to deliver to it
the owner’s duplicate of certificates of title Nos. 39685 and 53759 mentioned
heretofore, but the latter refused to do so. 
As a result it filed in the Court of First Instance of Rizal in Case No. 3885, G.L.R.O. Record No. 11267 a petition for an order directing
Antonio R. Banzon to present his owner’s duplicate,
of certificates of title Nos.  39685 and 53759 to the Register of Deeds of Rizal
for cancellation, and for another order
directing the Register of Deeds of Rizal to
cancel said duplicates
and to issue new transfer certifi­cates of title covering the properties in the
name of peti­tioner.

Banzon filed his opposition to the
petition claiming mainly that (1) the decision of the Court of First Instance of
Manila in Civil Case No. 31237 was void as far as he was concerned because he had never been
summoned in connection therewith; and that (2) the levy and sale of the
properties covered
by the petition
were likewise void because they were
conjugal properties belonging to him and his wife, Rosa Balmaceda.

After a hearing on the motion and opposition mentioned above, the
lower court, on February 17, 1961,
rendered a decision whose dispositive portion is as
follows:

“In view of the foregoing, judgment is hereby rendered in
favor of the petitioner granting the relief prayed for.  The oppositors are
hereby ordered to surrender to the Register of Deeds of Rizal
the Certificate of Title in question for cancellation and let a new one be issued in the name of
the petitioner.”

In this appeal interposed by them, the Banzons
seek a reversal of the above decision upon the same grounds relied upon in
their opposition filed in the lower court.

This appeal is without merit.

With
respect to appellants’ contention that Antonio R. Banzon
had not been duly served with summons in connection with Civil Case No.
31237 of the Court of First Instance of Manila, it is enough for us to quote
here the pertinent portions of the well-considered decision of the lower court
–

“With respect to the first contention of oppositors,
the latter in effect contends that not having been served by summons, Antonio Banzon never became a party defendant to the aforesaid
civil case and hence not bound by, any judgment rendered therein.  It is erroneous on the part of the petitioner
to contend that the objection as to
lack of jurisdiction on the
defendant’s person has been waived for said waiver applies only when summons
has been served although defectively, such as one not served by the proper
officer.  If the contention of the oppositor were true, that is, no summons was ever served upon him and that he
was completely unaware of the proceedings in the civil case aforementioned, the
properties in question could not be levied upon for that would amount to a deprivation
of oppositor’s property without due process of law.

“The
burden, however, rests upon the oppositors to prove that there was in fact no service of
summons and this, the court believes, the oppositors
have failed to substantiate with sufficient evidence.  It is a fundamental rule that the regularity
of all official actions and proceedings will be presumed until the contrary is
proved.  In said civil case No. 31237, the records show,
particularly the answer and the motion to dismiss, that the proceedings were
conducted by counsel in behalf of all the defendants therein including the oppositor, Antonio Banzon.  The presumption therefore, of the regularity
of the proceedings as against said defendant will be maintained including the
fact that either summons was duly served or that the defendant Banzon voluntarily appeared in court
without such summons.  It is
therefore incumbent upon the oppositors to rebut this
presumption with competent and proper evidence such as the return made by the
sheriff who served the summons in question. 
This, however, the oppositors have not met.

“Moreover, the circumstances of the case all the more bear out
the strength of this presumption when is considered that the oppositor Antonio Banzon received
a notice of execution and levy of this properties and notice of the sale of the
same at public auction.  Had the oppositors have been prejudiced by being deprived of due
process, they should have filed either a third party claim upon the property
levied or an injunction proceeding to prevent its sale at public auction, nor
would they have allowed the consummation of the sale end the lapse of one year
with which the redemption could have been exercised.  These facts gravely militate against the
merits of the opposition, not only insofar as it strengthens the aforesaid
presumption of regularity, but also insofar as they are indicative of the fact
that the properties levied upon ere not conjugal property or even if they
were that the debt involved was one which redound to the benefit of the family
for which the conjugal partnership may be held liable.”

Appellants’ second contention namely, that the properties now in
question ere their conjugal properties, is belied by the record before us which
shows that Transfer Certificates of
Title Nos. 39685 and 53759 were issued in the name of Antonio R. Banzon.  Moreover,
there is no sufficient evidence in the record to show that the properties were
acquired during appellants’ marriage.

IN VIEW OF ALL THE FOREGOING, the decision appealed from
is hereby affirmed, with costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Sanchez, and Capistrano, JJ., concur.

Castro and Fernando, JJ., did not take part.