G. R. No. 18583. January 31, 1964
VICENTE D. SARMIENTO IN HIS CAPACITY AS THE JUDICIAL ADMINISTRATOR OF THE INTESTATE ESTATE OF LORENZO C. ATEGA, PETITIONER, VS. THE HON. MONTANO A. ORTIZ, ET AL., RESPONDENTS.
MAKALINTAL, J.:
respondent Judge of the Court of First Instance of Agusan, directing
the cancellation of the notice of lis pendens, Entry No. 2902, on Original Certificate of Title No. RO-99 (N.A.).
The pertinent facts, insofar as they may be gathered from tBe pleadings, are:
On September 14, 1959 Lorenzo C. Atega filed in the aforementioned
court against William Lasam, Marciana E. Lasam, the Philippine National
Bank and the Register of Deeds of Butuan City, among others, a verified
complaint (Civil Case No. 750), seeking annulment of Original
Certificate of Title No. RO-99 (N.A.), the reconstituted title over Lot
No. 436-A, Butuan Townsite TS-65. On September 8, 1959 a notice of lis pendens was annotated as Entry No. 2902 on said certificate of title.
On February 24, 1960 plaintiff’s counsel notified the court that his
client had died on January 25, 1960 and therefore asked for suspension
of the proceedings until the deceased could be substituted by his legal
heirs. The court, on March 5, 1960, issued an order requiring counsel
to file an amended complaint with the corresponding substitution of
parties plaintiff. Said counsel, however, denies that such order was
ever received by him.
On June 20, 1960 defendants William Lasam and Marciana E. Lasam filed an “urgent ex-parte motion for cancellation of notice of lis pendens,” which was granted by respondent judge in the order sought to be annulled.
Vicente D. Sarmiento, herein petitioner, who was, on October 20,
1960, allowed to substitute the deceased in his capacity as regular
administrator of his estate, filed on November 14, 1960 a motion to set
aside the order of cancellation. This, as well as a subsequent motion
for reconsideration, was denied by respondent Judge.
The issue is whether respondent Judge committed grave abuse of discretion in ordering the cancellation of the notice of lis pendens.
Respondents, citing the cases of Victoriano vs. Rovira (55 Phil. 100) and Municipal Council of Parafiaque vs.
Court of First Instance of Rizal (70 Phil. 363), justify the
cancellation on the ground that there was unnecessary delay,
attributable to petitioner and his counsel, in the resolution of the
main case for annulment of the certificate of title, which delay was
highly prejudicial1 to respondents William Lasam and Mariana E. Lasam
because they could not dispose of their property in the manner they
wished, i.e., by using it as security to guaranty a loan from
respondent bank.
The cases mentioned exemplify the rule that a trial court has the
discretionary power, in the exercise of which it cannot be charged with
abuse, to order the cancellation of a notice of lis pendens
under peculiar circumstances, as for instance, where the evidence so
far presented by the party who applied therefor does not bear out the
main allegations of his pleading and he has unnecessarily delayed the
determination of the case to the prejudice of the owner affected.
Plaintiff Lorenzo C. Atega died on January 25, 1960. His counsel
informed the court of the fact on February 24, 1960. He elaborated that
he did not know whether a legal representative or administrator had
been appointed or who the legal heirs were, but that he had inquired
from the family of the deceased and that as soon as he received the
necessary information he would transmit the same to the court. Thus,
counsel substantially complied with his duty[1] .
Under the circumstances, respondent Judge should have either waited
for him to relay the necessary information or ordered him to name the
members of the family of the deceased, who are presumably his heirs, in
order that they might be substituted for the deceased. Or respondent
Judge should have required said counsel to furnish the name and
residence of the legal representative of the deceased, then ordered
such legal representative to appear in lieu of the deceased within a
specified time. If counsel failed to give the name of the legal
representative, or the latter, after having been ordered, failed to
appear, then respondent Judge should have ordered the other respondents
to procure the appointment of a legal representative for the deceased
within a given time, with a direction to such legal representative to
appear in behalf of the deceased party[2] .
It is contended, however, that the order of March 5, 1960 directed
the counsel for the deceased who is now petitioner’s counsel—to,file an
amended complaint, with due substitution of the plaintiff by his heirs.
In the first place, counsel claims that he did not receive copy of this
order and learned of it only upon receiving on August 14, 1961
respondents’ answer herein. It is neither alleged in said answer nor
otherwise proved that such copy had been received. And in the second
place, even if counsel did receive copy, he could not have complied
with the order since he did not, at that time, represent the heirs of
the deceased.
Respondent Judge’s order of March 5, 1960 was in-effectual. Failure
of counsel to comply therewith, not only because he had no notice
thereof, but because he could not legally do so, cannot be used as
basis for the conclusion that it was petitioner or his counsel who had
occasioned the delay.
And whether there was a delay or not in the main case, the
cancellation of the notice of lie pendens upon ex parte motion of
respondents was unduly precipitate. Evidently, as may be inferred from
the order of March 5, 1960, respondent Judge still believed that
counsel for the deceased plaintiff could continue to represent him or
his heirs. Consequently, said counsel should have been notified of the
motion for cancellation.
In view of the foregoing, we are of the opinion that respondent
Judge acted with grave abuse of discretion in ordering the cancellation
of the notice.
Regarding respondent bank’s contention that the mortgage on the land
executed in its favor by respondents Lasam is preferred to that of
petitioner’s lien, it is enough to state here that only transactions
over the subject land, which are subsequent to the notice of lis pendens are affected by the pending litigation,[3] while rights previously acquired will remain unaffected.[4] In any event, that is a question that must be resolved in the main case.
Wherefore, the writ prayed for is hereby granted and respondent Judge’s order directing cancellation of the notice of lis pendens is annulled, with costs against respondents.
Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon and Regala, JJ., concur.
[1] Whenever a party to a
pending case dies or becomes insane, it shall be the duty of his
attorney to inform the court promptly of such death or insanity and to
give the name and residence of the executor or administrator, guardian
or other legal representative oi the deceased or insane. (Sec. 16, Rule
3, Kules of Court)
[2] Barrameda vs. Barbara, 90 Phil., 718.
After a party dies and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal repi’esentative of the
deceased to appear and to be substituted for the deceased, within a
period of thirty (30) days, or within such time as may be granted.
If the legal representative fails to appear within said time, the
court may order the opposing party to procure the appointment of a
legal representative of the deceased within a time to be specified by
tile court, and the representative shall immediately appear for and on
behalf of the interest of the deceased. * * * The heirs of the deceased
may be allowed to be substituted for the deceased, without requiring
the appointment of an executor or administrator and the court may
appoint guardian ad litem for the minor heirs. Section 17, Rule 3 Rules of Court.
[3] Atkin, Kroll and Co. vs. Domingo, 46 Phil. 302;
[4] De Roda vs. Lalk, 48 Phil. 104..