TOMMY REYES AND ANDREA C. REYES, PETITIONERS, VS. COURT OF APPEALS, NICANOR G. SALAYSAY, AS PROVINCIAL SHERIFF OF RIZAL, AND CONCHITA P. DIONISIO, RESPONDENTS.

This case is about the foreclosure of a real estate mort­gage.  On December 15, 1964, the spouses Carlos
Ramirez and Emilia G. Ramirez and Teodora P. Geronilla executed in favor of
Conchita P. Dionisio a second mortgage over their registered lot (with an area
of 461 square meters) and the two-story house and two-door apartment thereon,
located at 705 Boni Avenue, Barranca, Mandaluyong, Metro Manila.  That mortgage was given as security for a
loan of five thousand pesos.

The Government Service Insurance System, as first mortgagee,
consented to the mortgage.  It was duly
registered.  An additional loan of P3,600
was given by Conchita to the Ramirez spouses and Teodora P. Geronilla on September 2, 1966.  It was also secured by the second mortgage
(50-52, Record on Appeal).

About three years later, or on January 30, 1968, the Ramirez spouses sold the mortgaged
property to Jaime Y. Reyes and Tommy Y. Reyes for sixty-three thousand
pesos.  Out of that price, the sum of
P19,873.11 was paid to the Ramirez spouses. 
The vendees agreed to assume the mort­gage debts consisting of
P34,059.89 to the GSIS and P6,850 to Conchita. 
The GSIS did not consent to that sale. 
It was not registered.  The record
does not show what happened to Teodora P. Geronilla’s interest in the mortgaged
property.

In an affidavit of adverse claim dated January 9, 1969, Conchita
alleged that the additional loan obtained from her by the Ramirez spouses
amounted to P8,600 (not P3,600) and that the total obligation secured by the
second mortgage was P13,600 (54-57, Record on Appeal).

As the debt to Conchita was not paid, she extrajudicially
foreclosed the mortgage.  The
extrajudicial foreclosure sale was scheduled by the sheriff at ten o’clock in
the morning of March 2, 1970.  He posted
the notice of sale in three public places in Mandaluyong and published it for
three consecutive weeks in the Bayanihan Weekly News, a periodical
edited and published in Sta. Cruz, Laguna and circulating in Rizal and Bulacan
and in the Cities of Caloocan, Quezon and Manila.  That newspaper was registered with the
Philippine Council for Print Media and was authorized to publish legal notices.

At the auction sale, Conchita submitted a bid for P16,581.45
which amount was “credited to the full satisfaction” of the mortgage
debt.  The sheriff issued to her a
certificate of sale wherein it was indicated that the period for redemption
would expire one year from the date of the registration of the said certificate
(30-34, Record on Appeal).  It was
registered on March 6, 1970 (Exh. 1).

Before the expiration of the one-year period, or on December 28,
1970, Jaime Y. Reyes assigned for P10,000 to his brother Tommy his interest in
the mortgaged property (34-37, Record on Appeal).

On February 24, 1971, or ten days before the expiration of the
redemption period, Tommy tendered to the sheriff the sum of P9,200 as
redemption price.  The sheriff rejected
it (p. 6, Appellants’ Brief).

On March 4, 1971, Tommy and his wife Andrea G. Cervo filed an
action against Conchita and the sheriff in the Court of First Instance of
Rizal, Pasig Branch 6, to annul the fore­closure sale and to compel them to
accept the said sum of P9,200.  The
complaint was later amended to include a prayer for the cancellation of
Conchita’s title (Civil Case No. 14482).

The sheriff had issued to Conchita on March 11, 1971 a final
certificate of sale.  She registered it
and obtained a new title in her name for the mortgaged lot (Exh.9).

Conchita in her amended answer alleged that she paid to the GSIS
P61,398.49 on account of the first mortgage but in her alternative prayer she
merely asked for the reimburse­ment to her of P16,581.45, the amount credited
to her as the pur­chase price at the auction sale (77-79, Record on Appeal).

After trial, the lower court dismissed the complaint, declared
the foreclosure sale as valid and regarded Conchita as the rightful owner and
possessor of the mortgaged property.  The
Court of Appeals affirmed that judgment (Reyes vs. Salaysay, CA-G.R. No.
59682-R, July 16, 1979).  The Reyes
spouses appealed to this Court.

In their brief argument, they contend that there was no
compliance with the notice and publication requirements prescribed in section 3
(not 66) of Act No. 3135.  That con­tention
cannot be entertained in this Court because it is a factual issue.  The Court of Appeals found that there was
public posting of the notice of sale, as shown in Exhibits 7, 7-C and F, and
publication of the notice of sale in a news­paper of general circulation, as
shown in Exhibits C, 1, 1-A, 1-13, 1-C and 13.

The Appellate Court said that “the presumption that the law
had been complied (with) as far as the publication is concerned has not been
overcome by herein appellants”.  The
Reyes spouses assail that holding and argue that, as held in Valencia vs.
Jimenez, 11 Phil. 492 and Camo vs. Riosa Boyco, 29 Phil. 437, Conchita had the
onus of proving that the statutory requirements regarding publication had been
strictly complied with.

That dictum of the Appellate Court, even if not altogether
correct, does not justify the reversal of its judgment.  As noted above, it found as a fact that there
was compliance with the publication requirement and the posting in public
places of the notice of sale.  Hence, the
compliance with the statutory re­quirements is a proven fact and not a matter
of presumption.

What the Appellate Court meant is that Conchita, by means of her
documentary evidence, sustained the burden of proof as to the posting and
publication requirements and that, thereafter, the burden of the evidence was
shifted to the Reyes spouses.  They
failed to present countervailing evidence to prove that there was no compliance
with the posting and publication requirements.

The rule is that if the mortgagor alleges that there was no
proper publication of the notice of the sheriff’ s sale, he has the burden of
proving that factum probandum (Ruiz vs. Sheriff of Manila,
L-24016, July 31, 1970, 34 SCRA 83).

The trial judge, Guardson P. Lood, noted that the tes­timony of
the managing editor of the Bayanihan Weekly News established the fact
that it is a newspaper of general circulation in Rizal (95-96, Record on
Appeal).

The appellants’ other contention refers to their timely tender of
the redemption price.  The Appellate
Court found that the redemption price was P16,581.45 and that the amount of
P9,200, tendered by the Reyes spouses, was not sufficient.  That finding is also conclusive on this
Court.

The contention of the Reyes spouses is that the redemp­tion price
should be P9,200 because to the principal of P5,000 should be added the sum of
P4,200 as twelve percent interest from December 15, 1964 to February 24, 1971
(when the re­demption price was tendered to the sheriff).

That contention is a factual issue which, as a rule, cannot be
raised in this Court under Rule 45 of the Rules of Court.  It is not well-taken.

Since the appeal is devoid of merit, the decision of the Court of
Appeals is affirmed.  Costs against the
petitioners.

SO ORDERED.

Barredo, (Chairman), Concepcion, Jr., Fernandez, and De Castro, JJ., concur.