MAXIMA NIETO DE COMILANG, PETITIONER AND APPELLANT, VS. ABDON DELENELA, GUILLERMO PEREZ, ET AL., RESPONDENTS AND APPELLEES.

This is an appeal from a decision of the Court of First Instance of
Baguio, Hon. Jesus de Veyra, presiding, denying a petition of
petitioner herein Maxima Nieto de Comilang to annul an order of the
Municipal Judge of Baguio City dated August 12, 1959 directing the
sheriff of Mountain Province to place Guillermo Perez and Abdon
Delenela in possession of the property described as follows:

“A parcel of residential land, situated at Turing,
Bengnet, Province, containing an area of about one and a half (1-1/2)
hectares, together with the residential house constructed thereon, made
of strong materials, as well as all other improvements existing
thereon, assessed as P10,000.00 under Tax Declaration No. 4771 in the
name of Marcos B. Comilang.”

The facts giving rise to the petition for certiorari filed in the lower court, as stated by the court below, are as follows:

“The roots of this case go back as far as 1908 when
Nicolas Conrlang occupied the land as a mineral claim and staked out
what is now known as the Bua Mineral Claim. Surface rights over this
claim were the subject of litigation resulting in a final decision by
the Court of Appeals, holding that Marcos Comilang only had the right
to 1-1/2 hectares of this surface (See Decision, Exhibit ‘F’). Later on
March 3, 1958 the ownership of the Bua Mineral Claim became the subject
of litigation, resulting in a settlement whereby Marcos Comilang was
awarded a one-half undivided share in this claim (See Exhibit ‘D’).
However, on June 1, 1957, by virtue of a Certificate of Sale, whatever
right, title interest and claim, Marcos Comilang might have over the
land of 1-1/2 hectares declared for taxation in his name under Tax
Declaration No. 4771, was sold at public auction to the Coloma spouses
(Exhibit ‘E’) and in turn, defendants Delenela and Perez, with the
knowledge and conformity of Marcos Comilang, and in the exercise of
their right of redemption Sp as co-owners, bought from the Coioma
spouses whatever rights, title, interest and claim they had obtained by
virtue of the Certificate of Sale, Exhibit ‘E’ (See Exhibit ‘5’) This
redemption sale took place on June 11, 1958. On February 9, 1959, the
Director of Mines recommended the issuance of a lode patent over the
Bua Mineral Claim in favor of Marcos Comilang and Delenela, et al. in
undivided shares as a result of the amicable settlement in the
decision, Exhibit ‘D’ (See Exhibit ‘C’). On August 12, 1959, Respondent
Municipal Judge issued a writ of possession in favor of Delcnela and
Perez directing the sheriff to evict the Comilang Spouses from the
1-1/2 hectares. A motion for reconsideration having been denied, Maxima
Nieto de Comilang, wife of Marcos Comilang:, has come to this Court in
this present action for cer tiorari and injunction on two grounds—that
as wife, conjugal property is being levied upon and her share of the
same is affected, and secondly that there can be no severance of
surface rights over a mineral claim located under the Philippine Bill
of 1902 – so that the sheriff could not have sold surface rights in his
certificate of sale, Exhibit ‘E-1’ x x x”

The ownership of Marcos Comilang of 1-1/2 hectares of agricultural
land was declared in the decision of the Court of Appeals promulgated
October 29, 1955 (Exhibit “F”). On the other hand, the ownership of
Marcos Comilang of the undivided 1/2 share of the Bua Mineral Claim was
declared in a decision of the Court of First Instance of the City of
Baguio, which approved an amicable settlement in Civil Case No. 735 of
said court entitled “Marcelina Comilang, et ad vs. Marcos Comilang”
dated March 3, 1958 (Annex”B”). The certificate of sale dated June
1,1957, Exhibit “E”, describes the property sold in compliance witih an
execution issued by the municipal court of Baguio on December 21, as
follows:

“A parcel of residential land, situated at Tuding, Itogon, Benguet,
Mountain Province, containing an area of about one and one-half (1-1/2
ha.) hectares, together with the residential house constructed thereon,
made of strong materials, as well as all other improvements existing
thereon, assessed at P10,000.00 under Tax Declaration No. 4771 in the
name of Marcos B. Comilang:” (Exhibit “E-1”)

On August 12, 1957 the judge of the municipal court of Baguio City
issued a writ of possession commanding the sheriff of Mountain Province
to place Guillermo Perez and Abdon Delenela in possession of the
residential land already described above, containing 1-1/2 hectares,
together with a residential house constructed thereon, etc.

As stated by the lower court in its decision, the petitioner herein
Maxima Nieto de Comilang claims that the property (residential land and
house) sought to be placed in the possession of respondents Belenela
and Perez is conjugal property of herself (Maxima Nieto de Comilang)
and Marcos Comilang, and said conjugal property may not be taken from
her, or her share therein can not be taken away without her consent.

The court below in its judgment made a finding of fact that the
judgment “in favor of the Coloma spouse (by reason of which the writ of
execution upon the property was issued) was a conjugal debt so that
conjugal property must answer for the same—more so as this was conjugal
property acquired prior to the effectivity of the New Civil Code.” This
finding of fact made in the decision of the court below can not be
reviewed by Us as the decision was appealed directly to this Court, so
that all findings of fact made by the trial court are deemed to have
been admitted by the appellant and only questions of law may be raised.
(Jacinto v. Jacinto, L-12313, July 31, 1959)

The judge further hold that since the property executed was acquired
prior to the effectivity of the New Civil Code, the wife, petitioner
herein, cannot object to the disposal of the property by the husband,
or the execution of the property in question by reason of the payment
of a debt by the husband. (Art. 106, Civil Code of the Philippines.)

We therefore find that the court’s order overruling the objection of
petitioner that as the property was conjugal property, the taking away
thereof by execution and sale on execution, is well founded and the
requestfor a review of this ruling of the court below is hereby denied.

We next come to the effect of the sale on execution of the
residential land over the mining claim of Marcos Comilang. In its
decision the court below held as follows:

“x x x Marcos Comilang, having submitted to the
jurisdiction of our courts as to the surface rights over this mineral
claim and by final judgment having been awarded 1-1/2 hectares of these
surface nights, is new barred by res judlcata. Marcos Comilung,
in consenting to the redemption by Delencla and Perez from the Coloma
spouses (Exhibit ‘4’) is in estoppel by deed to raise up the question
of scverability of surface rights. But from the way this Court looks at
the matter Marcos Comilang is in an even worse condition. By virtue of
the amicable settlement in the decision, Exhibit ‘D’, on March 3, 1958,
Marcos Comilang became pro indiviso owner of the Bua Mineral
Claim to the extent of one-half. When the Sheriff sold all his right,
title and interest over the 1-1/2 hectares of land, this pro indiviso
share was deemed to bo part of that ‘right, title and interest’ sold –
so that Marcos Comlang, by virtue of that’auction sale lost all his
right, title and interest to his pro indiviso share in the Bua
Mineral Claim. Having lost this right following his own theory, he also
loses all rights to the surface. From aill angles of equity and law
therefore, Marcos Ccniilang has lost all right over the mineral claim
as well as its surface.”

We find the above ruling objectionable on two grounds: (1) that the
certificate of the sale on execution, as well as the order of the court
for a writ of possession, expressly included a residential land alone
and not the mineral claim known as the Bua Mineral Claim of nine
hectares covered in part by the 1-1/2 hectares residential lot; and (2)
there is no express or implied taking away of the said mineral rights
or tha mineral claim by virtue of the execution, nor is there any
express act of Marcos Comilang supposedly consenting to the redemption
by Delenela and Perez of the ownership of the mineral claim.

With respect to the first objection above mentioned, it is to be
noted that while the attachment included both the residential land as
well as the mining claim in the said parcel of land (see Exhibit “E”),
the only property actually sold at public auction as described in the
certificate of sale, Exhibit “E”, is the residential land containing an
area of 1-1/2 hectares, together with the improvements existing
thereon, without including the Bua Mineral Claim or the
undivided one-half right thereto of Marcos Comilang (see Exhibit
“E-1”). The mineral claim under the said residential land was therefore
excluded from the certificate of sale and such mineral claim was
excluded also by the order of the justice of the peace for the issuance
of a writ of possession. No amount of reasoning can lead to the belief,
therefore, that the express sale of the1-1/2 hectare residential land
could have included the 1/2 share of Marcos Comilang in the nine
hectare mineral claim.

As to the second objection, the court found that Marcos Comilang, or
his wife, petitioner herein, is barred from questioning that the mining
claim was included because Comilang consented to the redemption of the
land and its sale thereafter to the respondents herein. There was no
actual or implied inclusion of the mining claim. The consent of Marcos
Comilang to the repurchase did not extend to the mineral claim as may
be shown by Exhibit “4”. Said exhibit refers to an act of redemption
and repurchase, and what could be redeemed was what was sold at public
auction in execution and thereafter covered by the certificate of sale
(Exhibit “2” and Exhibit “3”), both of which, including Exhibit “4”‘ do
not include the mining rights.

Aside from the fact that the mineral claim was not sold in
execution, the provisions of the Mining Law expressly declare that the
ownership of land for other purposes does not include the minerals, and
that mineral rights are not included in agricultural land patents.

“Sec. 4. The ownership and the right to the use of
land for agricultural, industrial, commercial, residential, or for any
purpose other than mining does not include the ownership of, nor the
right to extract or utilize, the minerals which may be found on or
under the surface.

“Sec. 5. The ownership of, and the right
to extract and utilize, the mineral included within all areas for which
puMie agricultural land patents are granted and excluded and excepted
from all such patents.” (Com. Act 137)

Pursuant to the above provisions, the ownership over the Bua Mineral
Claim by Marcos Comilang of 1/2 undivided share thereof was never
included in the sale on execution or in the redemption of the land
authorized by Marcos Comilang in Exhibit “4”.

For the foregoing considerations the judgment appealed from is
hereby affirmed insofar as it denies the petition of Maxima Nieto de
Comilang to exclude from the sale, or annul the sale on execution of
the residential dot formerly owned by her husband, of 1-1/2 hectares ,
covered in the final certificate of sale; but that part of the appealed
decision holding that such sale at public auction included the 1/2
undivided share, of Marcos Comilang to the Bua Mineral Claim, is hereby
set aside and said mineral rights of Marcos Comilang are hereby
declared free from the execution, or the sale on execution. Without
costs.

SO ORDERED.

Padilla, Bautista Angelo, Concepcion, Reyes J.B.L., Barrera, Paredes, Dizon, Regala, and Makalintal, JJ., concur.
Bengzon, C.J., took no part.