G.R. No. 12053. May 30, 1958
ROBERTA DIAZ Y CRUZ, PETITIONER, VS. HON. JESUS Y. PEREZ, PRESIDING JUDGE, 7TH BRANCH, COURT OF FIRST INSTANCE, PASAY CITY, ET AL., RESPONDENTS.
BENGZON, J.:
and possessing real and personal properties roughly estimated at half a million
pesos.
On August 18, 1956, three of her nine legitimate children, and two of her
grandchildren by another daughter, joined in a petition addressed to the Rizal
Court of First Instance, to declare her incompetent to take care of herself and
manage her properties and to appoint a guardian of her person and her
properties. The allegations, too long to relate, set out a prima facie case of
incompetency[1] (Special Proceeding
1483-P).
On November 7, 1956, while the above special proceeding was pending hearing
before respondent Judge Jesus Y. Perez, Roberta Diaz y Cruz received from the
Register of Deeds of Rizal a letter advising her that by reason of said
proceedings, a notice of lis pendens had been annotated on her Transfer
Certificate of Title to real property No. 32872 of that Province.
Wherefore, on November 29, 1956, she filed in the above-mentioned proceedings
a petition to cancel the lis pendens. In view of the opposition of the adverse
parties, the respondent judge denied the petition. Her motion to reconsider
having failed, Roberta Diaz filed a notice of appeal, record on appeal, and
appeal bond.
But on January 22, 1957, the respondent judge disapproved the record on
appeal, holding the appealed orders to be interlocutory, and therefore not
appealable.
So on February 26, 1957, this petition for mandamus and certiorari was filed
in this Court. The first, to compel approval of the record on appeal; the
second, to annul the order refusing cancellation of the notice of lis
pendens.
We think mandamus does not lie. As the respondent judge said, the order was
interlocutory, which can not “be the subject of appeal until final judgment is
rendered.” (Section 2, Rule 41.) It is comparable with an order refusing to
annul a preliminary attachment[1] or an
order denying or granting a preliminary injunction[2] which have been held to be interlocutory
[3]
As to the certiorari, petitioner may not seriously urge lack of jurisdiction.
In asking the Court to annul the lis pendens she admitted its jurisdiction to
annul and also to refuse annulment.
Was there abuse of discretion? The lis pendens had been obviously annotated
for the purpose of advising any one who might wish to buy the realty, that there
is in court a petition to declare Roberta Diaz incompetent to dispose of her
properties so that such purchaser may make the necessary inquiries and take
steps to protect his interest, bearing in mind that if said Roberta Diaz should
be declared incompetent, his purchase will be or might be affected
adversely.[4] It is a proper cautionary
measure which the courts should be slow to disturb, unless the petition for
guardianship was prima facie unconvincing, or was not made in good faith, or as
alleged by petitioner here, the pendency of guardianship proceedings may not be
considered as lis pendens affecting the realties of the person allegedly
incompetent.
“The effect of filing a notice of lis pendens is to charge the stranger with
notice of the particular litigations referred to in the notice; and if the
notice is effective, a third party who acquires the property affected by the lis
pendens takes subject to the eventuality of the litigations.”[1]
And its purpose is “to hold property within the jurisdiction and control of
the court pending determination of the controversy, thereby preventing third
persons from acquiring such interests therein as would preclude giving effect to
the judgment.”[2]
In the light of the object and salutory effects of the notation, we see no
reason to declare it improper in this case, specially because the allegations of
the guardianship petition specified instances wherein the incompetent disposed
of her properties in favor of persons allegedly taking undue advantage of her
advanced age and weak mental and physical condition.
The argument is presented that sec. 79 of Act No. 496 and sec. 24 of Rule 7
indicate the cases wherein lis pendens may be annotated, and that guardianship
proceedings is not included therein. In the first place sec. 79 is not an
exclusive enumeration. In the second place, these proceedings affect “the use”
or possession of the real estate within the meaning of above sections, even “the
title”, in the sense that the proceedings will curtail or take away the right of
the owner to dispose of the same.
Anyway, it is to be doubted whether the above sections were intended to be
exclusive of other circumstances wherein equity and general convenience would
make lis pendens appropriate. Indeed, cases have held it to be proper in
receivership proceedings[3] involving
realty, and in lunacy proceedings[1]
situations closely akin to the instant litigation.
In this connection, it is insisted that both sections only apply to “actions”
which are different from “special proceedings”, like guardianship. It is enough
to point out that the Rules provided for civil actions are generally applicable
to special proceedings. (Rule 73, section 2.)
Lastly, we are advised that after hearing the petition the lower court found
in April 1957 that by reason of her advanced age and weak mind, Roberta Diaz
could not manage her properties-she does not even remember them-and needed a
guardian to help administer her interests. This, in a way, vindicates the
annotation and the court’s refusal to cancel it.
Clearly then no abuse was made of the court’s discretion. Petition denied,
with costs.
Paras, C.J., Montemayor, Bautista Angelo, Concepcion, Reyes, J.B.L.,
Endencia, and Felix, JJ., concur.
[1]In fact, on April 6, 1957, after this
case had been submitted for decision the court declared her incompetent and
appointed the Philipine National Bank as guardian of her properties.
[1]Olsen & Co. vs. Olsen, 48 Phil.,
238.
[2]Diokno vs. Reyes, 7 Phil., 385; Lopez
vs. Dinglasan, 47 Off, Gaz., 650; 84 Phil., 292.
[3]Cf. Victorino vs. Rovira, 55 Phil.,
1000; Paranaque vs. Court of First Instance, 70 Phil., 363.
[4]Cruz Correa vs. Luciano, 52 Off.
Gaz., 4683; 99 Phil., 696; Bancairen vs. Diones, 98 Phil., 122.
[1]Atkins, Kroll & Co. vs. Domingo,
46 Phil., 362.
[2]34 American Jurisprudence, 364,
365.
[3]34 American Jurisprudence, 378, 379.
[1]Corpus Juris Secundum 583.