GREGORIO SALAZAR, PETITIONER, VS. JUSTINIANA DE TORRES, ET AL., RESPONDENTS.

This is a petition for a writ of mandamus to declare the orders of the
trial court of November 21, 1957 and February 3, 1958 null and void,
and to order the court to approve petitioner Salazar’s redrafted record
on appeal and give due course to said appeal. The petition was at first
denied by us for lack of merit, with the statement that appeal was the
proper remedy (Resolution of April 10, 1956), but on motion for
reconsideration, we gave the petition due course.

The
original action was brought by respondents Justiniana de Torres, et
al., against petitioner Gregorio Salazar to foreclose a real estate
mortgage. On September 8, 1956, both parties, assisted by counsel,
filed a joint motion for judgment on the following compromise
agreement:

“1. That the defendant Gregorio Salazar will pay unto plaintiffs the sum of P2,896.50 as follows:

“(a) P1,830.00 on or before October 31, 1956;

“(b) P1,038.50 on or before January 15, 1957;

“2. That plaintiffs hereby accept the terms of payment as specified above;

“3. That failure on the part of the defendant to comply with the terms
of payment as specified in paragraph 1, hereof, the plaintiff will be
entitled to the immediate execution of the full amount of P2,896.50 and
to foreclose the mortgage.

“4. That on the basis of the
above-stated agreement it is prayed that this Honorable Court render
judgment which will become final, executory and not subject of appeal
by both parties.” (Annex B)

In its order of
October 30, 1956, the trial court approved the joint motion for
judgment. It would appear, however, that petitioner Salazar paid only
P1,030.00, failing to pay the balance of P1,866.50. As a result,
respondents asked for the issuance of the writ of execution and a writ
of foreclosure was issued, which resulted in the sale at public auction
on February 25, 1957 of the mortgaged property to three of the four
respondents in the sum of P2,034.00 to satisfy the balance of the
judgment in the amount of P1,866.50, plus the sheriff’s fees and costs
incurred in the sale, amounting to P167.50.

On February 28,
1957, respondents moved to confirm the Sheriff’s sale, but upon
objection of petitioner on the ground that the sale had been made to
only three of the four respondents, and that there was no proof that
the fourth respondent, Bonifacia de Torres, had been paid her share of
the proceeds of the sale, the trial court denied the motion to confirm
and ordered the property to be sold anew at public auction.

After due notice and publication, the second auction sale was made on
September 24, 1957 in the course of which, petitioner submitted a
written bid which he handed to the Sheriff, in the amount of P2,069.00,
to cover the judgment credit of P1,866.50 and the costs of the second
foreclosure sale amounting to P202.60. However, the Sheriff returned
petitioner’s bid after respondents had made their bid for P2,257.34,
representing the balance of the judgment, the Sheriff’s fees and the
costs of the sale at public auction, which the Sheriff considered to be
the highest bid. A deed of sale was subsequently issued to respondents,
without requiring them to pay down the amount of the bid for the reason
that they were the judgment creditors. On October 1, 1957, respondents
moved to confirm the second sale. On his part, petitioner filed two
motions: one dated October 3, 1957, to declare the judgment debtor
(himself), as the highest bidder and to set aside the sale; and the
other dated October 4, 1957, to stay confirmation of the sale until
after his motion to annul the same had been acted upon. It is
petitioner’s contention that although respondents’ bid was higher than
his, nevertheless, the former was void since respondents did not
actually pay down or offer to pay the amount of their bid of P2,257.34;
that Bonifacia de Torres’ participation in the bid was illegal and
unauthorized, she having previously waived whatever cause or causes of
action she had against him; that his bid of P2,069.00 representing the
judgment credit of P1,866.50 and the costs of the second sale amounting
to P202.50 fully satisfied the obligation and so should have been
accepted as the highest bid.

The trial court held the motion
of respondents to confirm the sale, in abeyance. In an order of
November 21, 1957, the trial court upheld the right of Bonifacia de
Torres to participate in the bid, at the same time declaring untenable
petitioner’s petition regarding the failure of respondents to pay down
the amount of their bid, saying that being judgment creditors, they
need not pay down their bid unless it exceeded the amount of the
judgment, in which case, they had to pay only the excess. At the same
time, the lower court sustained the sufficiency of petitioner’s bid for
P2,069.00, saying that he need not pay the expenses incurred in the
first auction sale, which was set aside. In conclusion, the court
alternatively gave defendant-petitioner an unextendible period of two
days within which to pay the amount of his bid of P2,069.00 to the
Sheriff, otherwise, the plaintiffs-respondents were equally given an
unextendible period of two days within which to pay to the Sheriff the
sum of P167.50, representing the excess over the balance of the
judgment, including the lawful Sheriff’s fees and costs chargeable to
the defendants, after which the sale would be confirmed. The
dispositive part of said order is reproduced below:

“Wherefore,
in order to obviate the necessity of a third sale at public auction of
the mortgaged property the Court gives defendant an unextendible period
of two days from the receipt of this order within which to pay
Provincial Sheriff Mario J. Gutierrez of Batangas the amount of
P2,069.00 and orders the latter to turn it over immediately to the
plaintiffs in full satisfaction of their judgment, including the
sheriff’s fees and costs of sale for which defendant is liable, as
stated above.

“In the event of defendant’s failure to so
pay the amount of P2,069.00 within the prescribed period stated above,
and in order to avoid the necessity of a third sale, as already
adverted above, the court authorizes the plaintiffs to pay the
provincial sheriff of Batangas, Batangas the amount of P167.50
representing the excess over the balance of the judgment, including the
lawful sheriff’s fees and costs chargeable to the defendant, within an
unextendible period of two days after they are so notified accordingly,
which the provincial sheriff must do so immediately, after which the
Court will confirm the sheriff’s sale, otherwise, the Court will deny
confirmation of the sale and order a new one.” (Annex J).

Instead of complying with the above-reproduced order, petitioner on
November 30, 1957, filed a notice of appeal and on December 3, 1957,
his record on appeal. In the meantime, respondents paid the sum of
P167.50 to the Sheriff and on December 3, 1957, upon their motion, the
trial court confirmed the Sheriff’s sale of the property in question.

Petitioner’s record on appeal and the opposition thereto by respondents
was set for hearing on January 8, 1958, and on February 3, 1958, the
lower court issued an order dismissing petitioner’s appeal (one of the
orders sought to be voided), the court stating that the order of
November 21, 1957 which petitioner was appealing did not finally
dispose of the case as between the parties, inasmuch as there was
something more left to be done by the court, and that petitioner’s
failure to appeal the order of December 3, 1957 confirming the
Sheriff’s sale has allowed said order to become final, thereby
rendering his appeal from the order of November 27, 1957, a moot
question. The pertinent portion of the order is quoted below:

“The
aforesaid order did not finally dispose of the action, as between the
parties herein, as there was something more left to be done with it, in
this Court. In other words, the said order did not end, as yet, the
litigation between the parties completely and had left something still
to be done upon the merits.

* * * * *

“The records of this case show that the Court issued its order
confirming the sheriff’s sale dated September 24, 1957 on December 3,
1957, and that accordingly the counsel for the defendant had received a
copy of the said order on December 7, 1957. Said counsel did not appeal
from this order. In view of this confirmation, and the defendant’s
failure to appeal therefrom, his appeal interposed on the order dated
November 21, 1967 has become a moot question, as the order confirming
the sale of December 3, 1957 has already become final.”

It will be observed that the appealed order of November 21, 1957
neither set aside nor confirmed the foreclosure sale of September 27,
1957, but it held confirmation in abeyance so as to give petitioner an
opportunity to pay to the Sheriff the amount of his bid. The same
opportunity was alternatively given to the respondents to pay to the
Sheriff the excess of their bid over the judgment credit. But even
after the payment by respondents of the said amount because of the
failure of petitioner to take advantage of the opportunity accorded to
him by the court, still, the proceedings were not ended for the reason
that the court had yet to confirm the sale, which would have been the
final act to consummate and complete the foreclosure sale.

In the case of Philippine Sugar Estates Development Co. vs. Camps, 34 Phil., 426, this Court said:

“*
* * the sale of property under foreclosure procedure must be confirmed
by the court. * * * a sale by the sheriff does not have the effect of
transferring the property sold until the same is confirmed by a decree
of the court. Thus it appears that the confirming of a sale is a very
important order. The title of the property cannot pass to the purchaser
until the sale is confirmed. The court may decline to confirm the sale
for good cause shown, and the same set aside and order a new sale.
While the court may or may not confirm the sale within his discretion,
we are of the opinion that, whatever his order is, the interested
parties may appeal therefrom if they feel themselves aggrieved.”

Courts have defined a final order or judgment which is appealable as
one which either terminates the action itself or operates to vest some
right in such manner as to put it out of the power of the court making
the order to place the parties in their original condition:

“The
true test for determining whether an order or judgment is final for the
purpose of appeal is not whether the judgment disposes of the
contentions of the parties, or whether it touches the merit of the
case, but whether it finally disposes of the legal proceeding, so that
nothing more can be done with it in the court where it is determined or
in the language of Sec. 143 of Act No. 190, whether ‘it disposes of the
action.'” (Fuentebella vs. Carrascoso, Lawyers’ Journal, Vol. XIV, p. 305).

A foreclosure sale is not complete until it is confirmed, and before
said confirmation, the court retains control of the proceedings by
exercising a sound discretion in regard to it, either granting or
withholding confirmation as the rights and interests of the parties and
the ends of justice may require. From this standpoint, the order of
November 21, 1957 which neither set aside nor confirmed the foreclosure
sale was merely interlocutory in character.

“Until
confirmed the sale is in fieri—the highest bidder proposes to the court
to buy the lands at a specified price, which the court may accept or
reject. (Lowa vs. Guicie, 69 Ala. 82).

“The final
act which consummates a decretal sale is an order confirming the sale,
and only when that order is entered can there be an appeal.” (Masssey vs. Fischer, 243 S.W. 2d 889).

It has been held that:

“An
appeal from an interlocutory decree would be futile when the whole cane
has been disposed of by a final decree no longer open to attack because
no appeal has been taken from it and the time for appeal has expired.”
(4 CJ.S. 246, note 80.5)

“Commonly, an appeal from an
interlocutory decree is lost where final decree becomes immune to
attack for want of appeal from final decree.” (4 C.J.S. 246, id.)

In view of the foregoing, the appealed order of February 3, 1958,
dismissing petitioner’s appeal is affirmed, and the present petition
for mandamus is denied, with costs.

Paras, C. J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez David, JJ., concur.