PAULINA DURAN, PLAINTIFF AND APPELLANT, VS. BERNARDINO PAGARIGAN, DEFENDANT AND APPELLEE.

On 7 July 1953 Paulina Duran brought in the Court of First Instance
of Cagayan an action to recover possession of one and one-half (1-½)
hectares of a parcel of land lying in the western side of 10.1765
hectares situate at sitio Lacta, barrio of Bangan,
municipality of Sanchez Mira, province of Cagayan, donated to her by
Antonio Duran, her deceased grandfather, which part of the parcel of
land she alleged Bernardino Pagarigan, the defendant had usurped
sometime in December 1948; that said part of the parcel of land is
planted to about 130 coconut trees yielding an income of P500 more or
less annually derived from the sale of the fruits thereof; and that
notwithstanding repeated demands to vacate that part of the parcel of
land and to recognize her ownership thereof and to deliver to her its
possession, the defendant had refused to do so. She prays that after
hearing, judgment be rendered ordering the defendant to restore to her
the possession of that part of the parcel of land; to pay her the sum
of P2,000, the value of the fruits of the coconut trees planted in the
land harvested by the defendant from January 1949 to the date of the
filing of the complaint; and to pay the costs of the suit. She also
prays for other just and equitable relief (civil No. 600-A).

In his answer and amended answer filed on 12 August and 19 September
1953 the defendant claims that that part of the parcel of land the
possession of which the plaintiff seeks to recover, was acquired by him
by purchase from Ignacio Duran, the father of the plaintiff, in 1919 by
means of a verbal contract which was ratified in a public instrument on
11 March 1936; that on 19 September 1936, for and in consideration of
the sum of P20 paid by the defendant to the plaintiff and her father,
they agreed to settle amicably their case involving the same part of
the parcel of land pending in the Justice of the Peace Court of Sanchez
Mira, Cagayan; and that the plaintiff’s cause of action is already
barred by the statute of limitations. The defendant prays that the
plaintiff’s complaint be dismissed that she be ordered to pay him
P1,000 as damages for filing a malicious complaint against him in court
and to pay the costs; and that he be granted other just and equitable
relief.

After trial, on 12 March 1954 the Court found and rendered judgment as follows:

From the evidence presented in this case, it appears
that the defendant has been in possession of the land in question since
1919 when he exchanged it with one carabao valued at P80.00 from
Ignacio Duran, father of the plaintiff, under and by virtue of the Deed
of Sale exhibit 1; that the land covered by said deed of sale is as
follows:

“RESIDENTIAL LAND

“On the North by properties of
Carlos Perdido, Juan Tabao-nan and Saturnino Constantino, 133 meters;
on the East, by property of Ignacio Duran, 145 meters; on the South by
property of Ignacio Duran, 111 meters; and on the West by property of
Rufino Blanco, 145 meters or having an area of 1,7960 has., the said
land is declared under taxation No. 17920 in the name of Ignacio Duran
of the Municipality of Sanchez Mira, Province of Cagayan.”

that
in 1936 the defendant built his house on said land; that Paulina Duran
and her grandfather, Antonio Duran, questioned the sale made by Ignacio
Duran, but the case was settled by virtue of Exhibit 2, whereby the
defendant paid Antonio Duran and Paulina Duran the sum of P20.00 and
that thereafter Antonio Duran and Ignacio Duran have respected the
possession of said defendant over the said land. Hence, the plaintiff
may not now question the defendant’s ownership of the land covered by
the Deed of Sale, Exhibit 1.

At the ocular inspection
conducted by the Court, it was found out that the defendant was
occupying a bigger portion than what is covered by said Exhibit 1, and
he should deliver to plaintiff the excess. He should limit his
possession and occupation of said portion as follows: On the northern
side 133 meters from West to East; on the eastern side from North to
South 145 meters; on the southern side from West to East 111 meters;
and on the western side from North to South 145 meters.

No sufficient evidence has been presented to support any claim for damages.

In view of the foregoing, the Court hereby renders judgment—(a)
ordering the defendant to deliver to the plaintiff those portions of
the land in excess of what is covered by the Deed of Sale, Exhibit I,
as follows: on the northern side 133 meters from West to East; on the
eastern side from North to South 145 meters; on the southern side from
West to East 111 meters; and on the western side from North to South
145 meters; and (b) to pay the costs.

On 30 November 1954 the plaintiff filed a “petition to set aside
judgment” on the ground of fraud, mistake and excusable neglect. On 7
January 1955 the Court denied the plaintiff’s petition. On 15 January
1955 the plaintiff filed a motion for reconsideration. On 10 February
1955 the Court denied the plaintiff’s motion. The plaintiff has
appealed to this Court.

It appears that after trial, on 12 March 1954 the Court rendered
judgment for the defendant; that on 22 March 1954 counsel for the
appellant received notice of the judgment; that on 10 September 1954
the appellee filed a motion for execution of the judgment of 12 March
1954; that on 20 September 1954 the Court granted the appellee’s motion
for execution; that on 30 November 1954 the appellant filed a motion to
set aside the judgment; that on 7 January 1955 the Court denied the
appellant’s petition to set aside the judgment; that on 15 January 1955
the appellant filed a motion for reconsideration ; and that on 10
February 1955 the Court denied the appellant’s motion for
reconsideration.

The appellant having filed her “petition to set aside judgment”
under Rule 38 on 30 November 1954 beyond six months after the judgment
had been rendered on 12 March 1954, the same was filed out of time and
the Court correctly denied her petition.^[1]
The failure of her counsel to notify her on time of the adverse
judgment to enable her to appeal therefrom does not constitute
excusable negligence. Notice sent to counsel of record is binding upon
the client and the neglect or failure of counsel to inform him of an
adverse judgment resulting in the loss of his right to appeal is not a
ground for setting aside a judgment valid and regular on its face.

The judgment and the order denying the petition to set aside
judgment appealed from are affirmed, with costs against the appellant.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia, Barrera, and Gutierrez David, JJ., concur.

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^[1] Section 3, Rule 38; Isaac vs. Mendoza, 89 Phil., 279; Gana vs. Abaya, 98 Phil., 165; 52 Off. Gaz., 231.