VICTORIANO CAPIO, PETITIONER AND APPELLEE, VS. FERNANDO CAPIO, OPPOSITOR AND APPELLANT.

The
Court of First Instance of Mindoro acting as cadastral court and after
hearing Cadastral case No. 2, G. L. R. O. Cadastral record No. 216,
rendered a decision dated April 29,1921, adjudicating cadastral lots to
those entitled thereto. Lot No. 768 with its improvements was
adjudicated to the brothers, Victoriano, Felix and Agustin, all
surnamed Capio, in equal parts.

On January 7, 1947, about
twenty-six years later, Victoriano Capio, one of the three brothers
filed in the Mindoro court a petition asking for the reopening of the
cadastral case and the setting aside of that part of the decision
adjudicating lot No. 768 to him and to his two brothers Felix and
Agustin for the reason that according to him, said lot was, during the
cadastral hearing, claimed only by himself and by no others, not even
by his two brothers; that the lot really belonged to him and his wife
exclusively and that the adjudication made by the cadastral court was
through an error. After considering said petition as well as the
opposition thereto filed by Fernando Capio, the only heir of
petitioner’s brother Felix, and inasmuch as the trial court found that
the decree for said lot 768 was not issued until November 1, 1949, and
also because the oppositor did not deny the allegations of the petition
for the reopening of the case, the lower court, according to it, to
avoid the miscarriage of justice, ordered the reopening of the case at
the same time declaring null and void the decision of April 29, 1921,
with respect to lot No. 768. It set the hearing on said lot during the
May calendar. All this was contained in the court order dated February
28, 1950.

Oppositor Fernando Capio filed a motion for
reconsideration of the order. Acting upon said motion and the answer
thereto filed by Victoriano, the Mindoro court set the said motion for
reconsideration for hearing stating that at the hearing evidence may be
presented in order to properly establish the issues and also for the
parties to support their allegations.

On September 2, 1950, the lower court issued an order which we reproduce below.

“ORDER

“This is a motion for the reconsideration of the order of this court dated February 28, 1950.

“This motion was set for hearing in order to receive any evidence which
the parties might present in support of their contentions. The movant
did not appear while the oppositor was allowed to present his evidence.

“Considering the motion for reconsideration and the opposition thereto
together with the evidence presented by the oppositors, the court finds
no justification in reconsidering its order of February 28, 1950 and
therefore, denies the same for lack of sufficient merits.

“It is ordered.”

The order of February 28, 1950, above referred to is the order
declaring null and void the decision of the cadastral court dated April
29, 1921, as regards lot No. 768 and setting said lot for hearing.
Later, on October 20, 1950, the trial court finally issued the
following order.

“ORDER

“Petition
for postponement of the hearing of this case set for the 28th instant
is hereby granted. The court, however, believes that there is no
necessity of having this case set for hearing anew because the records
of this case clearly show that on September 2, 1950, when the motion
for reconsideration was called for hearing in order to receive any
evidence which the parties might present in support of their
contentions, the petitioner did not appear while the oppositor was
allowed to present his evidence.

“The Court after
considering the motion for reconsideration and the opposition thereto
together with the evidence presented by the oppositor, finds no
justification in reconsidering its order of February 28, 1950 and
therefore denied the same for lack of sufficient merits.

“Wherefore,
the order of this court dated September 2, 1950, denying the motion for
reconsideration of the order of this court dated February 28, 1950, is
hereby affirmed and maintained.

“It is so ordered.”

Appellant Fernando Capio is now appealing from this last order of October 20, 1950.

In numerous decisions, some of the latest being Afallo and Pinaroc vs. Rosauro, 60 Phil., 622 and Valmonte vs. Nable,^[*] (47
Off. Gaz., 2917), we have held that the adjudication of land in a
registration or cadastral case does not become final and
incontrovertible until the expiration of one year after the entry of
the final decree; that as long as the final decree is not issued and
the period of one year within which it may be reviewed has not elapsed,
the decision remains under the control and sound discretion of the
court rendering the decree, which court after hearing, may set aside
the decision or decree and adjudicate the land to another party.

In the present case, at the time the petition for review was filed, the
decree had not yet been issued. It is, therefore, clear that the
petition was filed well within the period prescribed by law (section
38, Land Registration Act). As to the merits of the petition, it would
appear that during the hearing of the motion for reconsideration at
which the oppositor did not appear and where petitioner Victoriano
presented evidence, Victoriano testified and presented documents to
show that this lot No. 768 was previously bought by Pedro Capio, father
of the three brothers Victoriano, Felix and Agustin from one Mamerta
Atienza who, before the sale had held it for about thirty years; that
on April 26, 1920, his father Pedro sold the same land to one Alejandro
Dris for P800; that on May 5, 1920, Victoriano Capio purchased from the
vendee Dris 3/4 of the land for P600, and on October 29 of the same
year Victoriano again bought the remainder from Dris for P350; that
Victoriano was the only one who filed his claim in the cadastral
proceedings for lot No. 768, and that at the hearing he was the only
one who appeared and claimed the land. Furthermore, the petition for
reopening of the case filed by Victoriano on January 7, 1947, bears the
written conformity of the heirs of his brother Agustin Capio, so that
the only one opposing this petition is Fernando Capio, the only heir of
his brother Felix Capio.

Finding the order appealed from to
be in conformity with law, the same is hereby affirmed with costs
against the appellant. We notice however from the order of the trial
court of October 20, 1950, which we have reproduced above that it
entertained the belief that there was no further need for a hearing as
to the ownership of the lot No. 768, because said hearing had already
been held and presumably the court was convinced that the lot properly
belonged to petitioner Victoriano Capio. The record, however, shows
that this hearing was held in connection with the motion for
reconsideration. Moreover, said hearing was held in the absence of
oppositor Fernando Capio, he perhaps believing that it was not a trial
on the merits of the case. The trial court is therefore directed to
hold a regular and formal hearing of the case with notice to both
parties where evidence as to the ownership, possession, etc. of the lot
and its improvements may be presented and thereafter a decision shall
be rendered.

Paras, C. J., Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

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^[*] 85 Phil., 256.