HERMOGENES MARAMBA, PLAINTIFF-APPELLANT, VS. NIEVES DE LOZANO, ET AL., DEFENDANTS-APPELLEES.

Appeal from an order of the Court of First Instance of Dagupan City in its Civil Case No. 10485, dated June 28,
1961.  This case was originally brought
to the Court of Appeals, but subsequently certified to Us on the ground that
the issues raised are purely legal.

It appears that on November
3, 1948, the plaintiff filed an action against the defendant Nieves
de Lozano and her husband Pascual Lozano for the
collection of a sum of money.  After
trial, the court a quo on June
23, 1959 rendered its decision, the dispositive
part of which is as follows:

“WHEREFORE, the court hereby renders judgment, sentencing the
de­fendants herein, Nieves de Lozano and Pascual
Lozano, to pay unto the herein plaintiff, Hermogenes Maramba, the total sum of Three Thousand Five Hundred Pesos
and Seven Centavos (P3,500.07), with
legal interest thereon from the date of the filing of the instant
complaint until fully paid.

With costs against the said defendants.”

Not satisfied with the judgment, the defendants interposed an
appeal to the Court of Appeals but the ap­peal was dismissed on March 30, 1960 for failure of the
defendants to file their brief on time. 
After the record of the case was remanded to the court a quo, a writ of execution was issued, and
on August 18, 1960 levy was
made upon a parcel of land covered by
transfer certificate of title No. 8192 of Pangasinan
in the name of Nieves de Lozano.  The
notice of sale at public auction was
published in accordance with law and scheduled for September 16, 1960.

On that date, however, defendant Nieves de Lozano made a partial
satisfaction of the judgment in the amount of P2,000.00, and requested for an
adjournment of the sale to October
26, 1960.  On October 17,
1960, she filed an amended motion, dated October 14, alleging that on November
11, 1952, during the pendency of the case, defendant Pas­cual Lozano died and that the property levied upon was
her paraphernal property, and praying that her
liability be fixed at one-half (1/2) of the amount awarded in the judg­ment and
that pending the resolution of the issue an order be issued restraining the Sheriff
from carrying out the auction sale scheduled on October 26, 1960.

On that date the sale
proceeded anyway, and the property of Nieves de Lozano which had been levied
upon was sold to the judgment creditor, as the highest bidder, for the amount
of P4,175.12, the balance of the judgment debt.

On October 27, 1960,
plaintiff filed an opposition to the defendant’s amended motion dated October 14, 1960.  And on June 28, 1961, the trial court issued the questioned
order, the dispositive part of which is as follows:

“WHEREFORE, the court hereby grants the motion of counsel for
defendant Nieves de Lozano, dated
October 5, 1960, which was amended on October 14, 1960, and holds that the
liability of the said defendant under the judgment of June 23, 1959, is only joint,
or P1,750.04, which is one-half (1/2) of the judgment debt of P3,500.07 awarded
to the plaintiff and that the writ of execution be accordingly modified in the
sense that the liability of defendant Nieves de Lozano be only P1,750.04 with
legal interest from the date of the filing of the complaint on November 5, 1948
until fully paid, plus the amount of P21.28 which is also one-half (1/2) of the
costs taxed by the Clerk of Court against the defendant spouses.  Let the auction sale of the above-mentioned property
of defendant Nieves de Lozano pro­ceed to satisfy her liability of P1,750.04
with legal interest as above stated and the further sum of P21.28 representing
the costs, unless she voluntarily pays the same to the judg­ment creditor
(herein plaintiff).”

Plaintiff interposed an
appeal from the above-quoted order and assigned several errors, which present
three major issues, to wit:

(a)   
whether or not the decision of the
lower court dated June 23, 1959
could still be questioned;

(b)   
whether or not the judgment was
joint or solidary; and

(c)   
whether or not the judgment debt
could be satisfied from the pro­ceeds of the properties sold at public auction.

Plaintiff-appellant
submits that a “nunc pro tunc”
order should have been issued by the trial court dismissing, as of November
11, 1952, the case against the late Pascual Lozano by
reason of his death, and that the lower court should have corrected its
decision of June 23, 1959, by
striking out the letter “s” in the word “defend­ants” and
deleting the words “and Pascual Lozano.”

We do not think that the
action suggested would be legally justified.  It would entail a substantial amend­ment of the decision of June 23,
1959, which has long
be­come final and in fact partially executed. 
A decision which has become final and executory
can no longer be amended or corrected by the court except for clerical errors
or mistakes,^[1] and however erroneous it may be, cannot be
disobeyed;^[2] otherwise litigations would be endless and
no questions could be considered finally settled.^[3]
The amendment sought by appellant
involves not merely clerical errors but the very substance of the controversy.  And it cannot be accomplished by the issuance
of a “nunc pro tunc”
order such as that sought in this case. 
The purpose of an order “nunc pro tunc” is to make a present record of an order which
the court made at a previous term, but which was not then recorded.  It can only be made when the thing ordered
has previously been made, but by inadvertence has not been entered.  In the instant case there was no order pre­viously
made by the court and therefore there is nothing now to be recorded.

Now then, it is clear
that the decision of June 23, 1959 does not specify the extent of the liability
of each defendant.  The rule is that when
the judgment does not order the defendants to pay jointly and severally their
liability is merely joint, and none of them may be compelled to satisfy the
judgment in full.  This is in harmony
with Articles 1137 and 1138 of the Civil Code.

Plaintiff-appellant
contends that in any event the entire judgment debt can be satisfied
from the proceeds of the property sold at public auction in view of the
presumption that it is conjugal in character although in the name of only one
of the spouses.  The contention is
incorrect.  The presumption under Article
160 of the Civil Code refers to property acquired during the marriage.  But in they instant case there is no showing
as to when the property in question was acquired, and hence the fact that the
title is in the wife’s name alone is determinative.  Furthermore, appellant himself admits in his
brief (p. 17) that the property in question is paraphernal.

Appellant next points out that even if the land levied upon were
originally paraphernal, it became conjugal property
by virtue of the construction of a house thereon at the expense of the common
fund, pursuant to Article 158, paragraph 2 of the Civil Code.  However, it has been held by this Court that
the construction of a house at conjugal expense on the exclusive property of
one of the spouses does not automatically make it conjugal.  It is true that in the meantime the conjugal
partnership may use both the land and the building, but it does so not is owner
but in the exercise of the right of usufruct. 
The ownership of the land remains the same until the value thereof is
paid, and this payment can only be demanded in the liquidation of the
partnership (Coingco vs. Flores, 82 Phil. 284; Paterno vs. Bibby Vda. de Padilla, 74 Phil. 377; Testate Estate of Narciso Padilla, G. R. No. L-8748, Dec. 26, 1961). 
The record does not show that there has already been a liquidation of
the conjugal partnership between the late Pascual
Lozano and Nieves de Lozano. 
Consequently, the property levied upon, being the separate property of
defendant Nieves de Lozano, cannot be made to answer for the liability of the
other defendant.

On May 18, 1967 counsel for defendants-appellees
filed with Us a petition alleging, inter alia;
that prior to the expiration of the redemption period and pursuant to an order
of the lower court defendants filed a surety bond in the amount of P3,175.12 as
the redemption price, which bond was duly approved by the lower court; that
some­time last September 1966, defendants filed a petition before the lower
court praying that the sheriff of Pangasinan be
ordered to execute the corresponding deed of redemption in favor of defendant
Nieves de Lozano represented by her judi­cial administrator or that, in the
alternative, the Register of Deeds of Dagupan City be
directed to cancel Entries Nos. 19234 and 20042 at the back of TCT No. 8192;
and that said petition was denied by the lower court.  The same prayer made below is reiterated in the said petition of May 18, 1967.

The foregoing petition of May
18, 1967 alleges facts which occurred after the perfection of the
present appeal and which should therefore be submitted to and passed upon by
the trial court in connection with the implementation of the order appealed
from, which is hereby affirmed, with costs.

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

^[1]
Marasigan vs. Ronquillo,
94 Phil. 237.

^[2]
Compania General de Tabacos
vs. Alhambra Cigar & Cigarette Manufacturing Co., 33 Phil. 508; Golding vs. Balatbat, 36
Phil. 941.

^[3]
Daquis vs. Bustos,
94 Phil. 913.