G.R. No. 20954. May 29, 1967
ELIAS GALLAR, PLAINTIFF-APPELLEE, VS. HERMENEGILDA HUSAIN, ET AL., DEFENDANTS. BONIFACIO HUSAIN, DEFENDANT-APPELLANT.
REGALA, J.:
This is an appeal directly from the Court of First Instance.
A hectare of rice land in Cabatuan,
Iloilo, is the subject of this controversy.
On January 9, 1919, Teodoro Husain, the owner, sold this land to Serapio
Chichirita for P30, reserving for himself the right
to repurchase it within six years. The
deed of sale, written in the Ilongo dialect, is
contained in a private instrument, the English translation of which reads:
“I, Teodoro Husain,
single, of legal age, native and resident of the Municipality of Cabatuan, Province of Iloilo, Philippine Islands, because
of the amount of Thirty Pesos (P30.00), Philippine currency, that was paid to
me by Serapio Chichirita,
married to Florentina Muyuela,
of legal age, native and resident of this Municipality of Cabatuan,
Province of Iloilo, Philippine Islands, hereby declare that I am selling to the
aforementioned vendee Serapio Chichirita,
his heirs, and the heirs of the latter, my one parcel of rice land at Barrio Salacay of this Municipality of Cabatuan,
and its descriptions are as follows:
One parcel of rice land that has a seedling of one cavan of palay, legal measure,
bounded on the North, land of Juan Alcayaga, on the
East, land of Agapito Suero,
on the South, land of Elias Gallar and on the West,
land of Juan Mina. The said land was
inherited by me from my father who is now dead, Clemente
Husain.
“I also declare that we have agreed that if the vendor shall
have repaid to the vendee the aforementioned amount of P30.00 within six years
from this date, the vendee or his heirs shall execute a document of repurchase
in my favor, but if after the said term that he cannot return the aforementioned amount, this document shall be considered
absolute and irrevocably consummated and in the meantime the vendee shall be
the one to make use of the aforementioned land in accordance with the Ley Hipotecaria.
“In truth whereof, I have signed this document
at Cabatuan, 9th of January, 1919.
(sgd.)
TEODORO HUSAIN
“Signed in the presence of:
“(sgd.)TOMAS JILOCA (sgd.)EUSEBIO JOCANO”
Teodoro Husain
did not redeem the land, although shortly after the execution of the deed of
sale, that is, on January 28, 1919, the vendee a retro, Chichirita, transferred his right to Graciana
Husain, sister of the vendor a retro,
in what purports to be a resale of the land.
The following annotation appears on the reverse side of the deed of pacto de retro sale:
“NOTA: The amount stated above was
received by me from Graciana Husain
and on my own voluntary will as redemption (gawad) of
the same land, and because of this, I am transferring my rights as stated above
to Graciana Husain in the
presence of her husband Manuel Catalan, and in truth whereof I have signed at Cabatuan, 28
January, 1919.
Thumb
marked
Serapio Chichirita”
(English translation)
Graciana Husain
subsequently transferred her rights to the land to appellee
Elias Gallar in exchange for one cow. The transaction is recorded in a second note
added on the reverse side of the deed of sale.
The note reads:
“OTRA NOTA:
“The undersigned Graciana Husain, with the consent and knowledge of her husband
Manuel Catalan, has agreed with Elias Gallar that all
the rights that belongs to her, or she, Graciana Husain, is transferring to the said Elias Gallar in accordance with that stated in the original with
the difference that this transfer is definite because it is their agreement in
exchange of one head of cow described in the Certificate of Large Cattle
existing in the Office of the Municipal treasurer of this town. And in truth whereof, Graciana
Husain signed hereunder together with her husband
Manuel Catalan.
“(sgd.)
MANUEL CATALAN (sgd.)
GRACIANA HUSAIN”
(English translation)
Possession of the land, together with the
owner’s duplicate of the certificate of title of Teodoro
Husain, was delivered on the same occasion to appellee who since then has been
in possession of the land.
In an affidavit dated March 6, 1928, Chichirita
confirmed the “redemption” of the land by Graciana
Husain. In
another affidavit of the same date, Graciana Husain for her part confirmed having subsequently sold the
land to the appellee.
In 1960, appellee asked the Cadastral
Court for the issuance to him of a transfer certificate of title but the court
dismissed his petition for lack of jurisdiction. (The court, however, granted appellee’s request for the amendment of the certificate of
title by changing, the surname of “Osaen”
to “Husain.”) He, therefore, filed this
suit in the Court of First Instance of Iloilo on October 10, 1960 to compel Hermenegilda and Bonifacio Husain, as heirs of Teodoro Husain, to execute a deed of conveyance in his favor so
that he could get a transfer certificate of title. He also asked for damages.
In their answer, Hermenegilda and Bonifacio Husain denied the sale
and contended that the agreement between their father and Serapio
Chichirita was that of a mortgage to secure a loan of
P30. They claimed that the mortgage had
been discharged on January 28, 1919 when Graciana Husain paid Teodoro Husain’s debt to Chichirita. Hermenegildo and Bonifacio Husain likewise invoked
prescription to bar appellee’s action and asked for damages for the value of palay
which they claimed they failed to receive on account of appellee’s
refusal to return possession of the land to them.
The trial court found that after acquiring the land from Teodoro Husain, Serapio Chichirita sold it to Graciana Husain who in turn sold
it to the appellee.
Accordingly, it ordered the appellants to execute a deed of conveyance
of the land in favor of the appellee on the authority
of our ruling in Sapto v. Fabiana, 103 Phil., 683.
From this judgment, Bonifacio Husain brought this appeal to this Court. He contends that the land in question, which
is identified as Lot No. 766 of the Cadastral Survey of Cabatuan,
Iloilo and covered by Oridinal Certificate of Title
No. 4521 of the Register of Deeds of Iloilo, is not the same land which Teodoro Husain sold to Serapio Chichirita on January 9,
1919. According to appellant he raised
this question at the trial but the lower court passed it up in its
decision. The records on appeal do not
disclose that appellant made such a claim.
About the only hint that he was questioning the identity of the land
sold by means of the deed of sale of January
9, 1919 was an objection to a question during the direct
examination of the appellee. Thus the following appears on pages 20-21 of
the transcript of notes taken on July
5, 1961:
“Q According to this Exhibit C, you bought the
lot referred to in Exhibit A which is Lot 766 in
question, was bought by you for one cow.
Do you know how much the worth of your cow during that time?
“ATTY. ESMERALDA [for defendants]
Objection, Your Honor. The question is premised on Lot
766 but the document does not mention Lot 766.
“xxx
xxx xxx xxx
“COURT
So your objection is that it lacks basis
“ATTY. ESMERALDA
It lacks basis, your Honor.”
Otherwise, the records do not show any
allegation made, much less evidence presented, by appellant of the supposed
difference in the identity of the land sold in the deed of pacto
de retro sale and the land now in question. Indeed, the only defense put up by appellant
was that the pacto de retro sale
was in reality a mortgage and that, at any rate, appellee’s
action was barred by the statute of limitations. In so doing, appellant joined issues with the
appellee and he will not now be permitted to bring up
new matters on appeal as this would constitute changing of theory – so utterly
unfair to the adverse party[1]
that the lower court deliberately, perhaps, ignored the point. It may be added that an admission that the
land described in the deed of sale and Lot No. 766 are one and the same is
implicit in appellant’s defense that the deed of sale did not express the true
intention of the parties.
Still it is argued that no action can be brought on the basis of
the deed of sale with a right of repurchase because the land in question was
redeemed a few days after it had been sold.
While it is indeed true that the first note written on the reverse side
of the deed of sale speaks of the “redemption” of the land, there is
no evidence to show that the vendee, Graciano Husain, was acting in behalf of her brother Teodoro Husain, in the exercise
of the latter’s right of redemption.
Now, unlike a debt which a third party may satisfy even against the
debtor’s will[2]
the right of repurchase may be exercised only by the vendor in whom the right
is recognized by contract[3]
or by any person to whom the right may have been transferred.[4] Graciana Husain must, therefore,
be deemed to have acquired the land in her own right, subject only to Teodoro Husain’s right of
redemption. As the new owner she had a
perfect right to dispose of the land as she in fact did when she exchanged it for a cattle with the appellee.
Now, when Teodoro Husain
failed to redeem the land within the stipulated period, i.e., January 9, 1925, its
ownership became consolidated in the appellee. True the successive sales are in a private
instrument, but they are valid just the same.[5]
By the delivery of possession of the land on April 2, 1919 the sale was
consummated and title was transferred to the appellee. Indeed, this action is not for specific
performance; all it seeks is to quiet title,[6]
to remove the cloud cast on appellees, ownership as a
result of appellants refusal to recognize the sale
made by their predecessor. And, as
plaintiff-appellee is in possession of the land, the
action is imprescriptible.[7]
Appellant’s argument that the action has prescribed would be correct if they
were in possession as the action to quiet title would then be an action for
recovery of real property which must be brought within the statutory period of
limitation governing such actions.[8]
WHEREFORE, the decision appealed from is affirmed, with
costs against appellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
and Castro, JJ.,
concur.
[1] Quinio v.
Muñoz, G. R. No. L-17222, Oct. 29, 1965; Agoncillo v. Javier, 38 Phil.
424 (1918).
[2] Spanish Civil Code art. 1158; Phil. Civil
Code article 1236.
[3] Ordoñez v. Villaroman, 78
Phil. 117 (1947)
[4]
See Gonzaga v. Garcia, 27 Phil. 7 (1914)
[5] Spanish Spanish Civil Code art. 1278; Philippine Civil Code art. 1356; Irureta Goyena v. Tambunting, 1 Phil. 490 (1902).
[6]
Phil. Civil Code article 476.
[7] Sapto v. Fabiana, G. R. No. L-11285, May 16, 1958
[8] Ongsiaco v. Ongsiaco, G.
R. No. 1-7510, March 30, 1957; Villanueva v. Villanueva, 91 Phil. 43, 46
(1952) (Bengzon, J., concurring)