ESTEBAN M. SADANG AND MARIA LACHICA, PLAINTIFFS-APPELLANTS, VS. GOVERNMENT SERVICE INSURANCE, DEFENDANT-APPELLEE.

Appeal, taken
by plaintiffs Esteban M. Sadang and his wife Maria
Lachica, from a decision of the Court of First
Instance of Manila dismissing their complaint, with costs against
them.

Plaintiffs obtained from the
Government Service Insurance System a loan of P144,000.00, on September 13,
1957, and
an additional loan of P29,000.00, on August 11,
1958,
payable, with interest, on installments. To guarantee the payment thereof,
plaintiffs constituted a real estate mort gage on a parcel of land, belonging to
them, situated in Manila and more particularly described
in Transfer Certificate of Title No. 22386 of Manila in their name. Upon their
default in the payment of some of the amortizations provided in the principal
obligation, and the interest as well as the surcharges stipulated therein,
despite repeated demands, defendant asked the Sheriff of Manila to extra
judicially foreclose said mortgage, as agreed upon by the parties. After
publishing the corresponding notice of sale in the newspaper “Voz de Manila”, the aforementioned property was, on
December 2,
1959,
sold at public auction to the defendant as the highest bidder. Soon thereafter,
or on January 11, 1960, the defendant applied for a writ of possession, which
was granted, without any opposition thereto, on January 16, 1960, upon the
filing of the corresponding bond by the defendant, which took possession of said
property on November 10, 1960. Almost two (2) years later, or on
September 8,
1962,
plaintiffs filed the present action, in the Court of First Instance of Manila,
to annul the aforementioned sale and recover damages, upon the ground that the
newspaper “Voz de Manila” is not of general
circulation and that the notice of sale had not been published for three (3)
consecutive weeks.

After appropriate proceedings,
said court rendered a decision dismissing the complaint, with costs against the
plaintiffs, who, thereupon, interposed this appeal directly to the Supreme
Court, upon the ground that the property in question is worth more than
P200,000.00.

Plaintiffs maintain that the
aforementioned sale at public auction is null and void ab initio upon
the theory that the newspaper “Voz de Manila” is not
of “general circulation” and that publication of the corresponding notice of
sale once a week for three (3) consecutive weeks has not been sufficiently
established.

In connection with the last
issue, the customary affidavit of the editor of the “Voz de Manila” to the effect that said notice had been
published in said newspaper on October 29, and November 5 and 12, 1959, was duly
introduced in evidence, and constitutes prima facie evidence of said fact.
There being no competent evidence to the contrary, and considering that, as the
party alleging non-compliance with the requisite publication, plaintiffs had the
burden of proving said allegation, it is apparent that the same has not been
substantiated. The cases of Campo vs. Bartolome (38
Phil. 808), Balagtas vs. Arguelles (57 Phil. 317) and
Borja vs. Addison (44 Phil. 895), cited by the
plaintiffs, refer to sales made without the notice required by law.
Consequently, they are inapplicable to the present case, said notices having
been given therein.

As regards the question whether
the newspaper “Voz de Manila” is of general
circulation or not, plaintiffs allege that said newspaper had never been
registered with the Bureau of Commerce; that it was not accepted by the public;
that there had been several interruptions in its publication from 1945 to 1961;
that several offices of the Government and universities had never subscribed
thereto or were not subscribed thereto in 1959; that, after June 30, 1959, the
“Voz de Manila” had not submitted any report to the
Bureau of Census and Statistics; and that a money judgment rendered against said
newspaper in 1952 was still unsatisfied in 1959. The lower court had, however,
the following to say:

“This Court can say that at the
time of its publication, ‘Voz de Manila’ was edited in
Spanish and was generally read by persons who understand said language,
especially at the time, as it is now, when newspapers in Spanish were quite rare
in the City of Manila. ‘Voz de Manila’, as a
newspaper, contained news of general interest and character to the community and
at the time of its publication, it used to carry court notices, notices of
extra-judicial foreclosure of mortgages and notices of public sales of mortgaged
property by the Sheriff of Manila, as well as by Sheriffs of the different
provinces in the Philippines. Consequently, the fact, as
contended by the plaintiffs, that some universities and colleges did not have
copies of said newspaper in their files, is no proof that ‘Voz de Manila’ was not a newspaper of general circulation
for it can be stated as a fact that it being in Spanish, its contents could not
be of interest to university students who have hardly a working knowledge or
understanding of the Spanish language as the mode of instruction in almost all
the universities and colleges is in English.”

Upon a review of the record, we
are not prepared to disturb the foregoing finding of fact, which, in our
opinion, is substantially correct. Moreover, admittedly, plaintiffs had been
notified by the Sheriff that the mortgaged property would be sold at public
auction on December 2, 1959, at 10:00 a.m., at the main entrance of the City
Hall of Manila; the sale took place on said date, and at said time and place;
over a month after the sale, or on January 11, 1960, defendant filed a motion
for a writ of possession, to which plaintiffs did not object; the corresponding
writ of possession was issued on January 16, 1960; and, on November 10, 1960,
the property in question was actually delivered to the defendant, without any
opposition on their part, either at that time or within the next twenty-two (22)
months preceding the commencement of the present action. Since, it is presumed
that official duty has been regularly performed and that the ordinary course of
business has been followed (Rule 13, Section 5 [m] and [q], Rules of Court), we
must assume that plaintiffs were notified of defendant’s motion for a writ of
possession, of the order of the court granting said motion and of the very fact
of delivery of possession to the defendant. Plaintiffs’ inaction during this
period of time constitutes a waiver of such objection as they may have had to
the foreclosure sale predicated upon the theory that the newspaper “Voz de Manila” is not of general circulation and bars their
present action based upon said theory.

WHEREFORE, the decision appealed from is
hereby affirmed, and this appeal being manifestly frivolous, plaintiffs and
their counsel are hereby sentenced, jointly and severally, to pay treble costs
(Rule 142, Section 3, Rules of
Court).

IT IS SO
ORDERED.

Reyes, J. B. L., Dizon, Regala, Makalintal, Bengzon, J. P., Zaldivar, Sanchez and Ruiz Castro, JJ., concur.

 Barrera, J., on leave.