CHO CHUN CHAC, PLAINTIFF AND APPELLANT, VS. MAXIMO F. GARCIA, DEFENDANT AND APPELLANT.

The record before us shows that the defendant Maximo F. Garcia,
according to transfer’s certificate of title No. 1507, Exhibit 5, was
the owner of a property known as “Varadero de Iloilo;” that on November
28, 1921, he sold said property to Dña. Trinidad Ledesma de Arroyo in
the sum of P16,000 with right of repurchase for the term of six months
from the date of the document Exhibit L, which might be extended two
months, that is, up to July, 1922; that when the period for redemption
was about to expire, said defendant sent a telegram to the plaintiff
who was then in Manila, asking for money with which to pay the interest
due to Dña. Trinidad Ledesma de Arroyo, in order to prevent the
consolidation of her title; that the plaintiff, on July 26, 1922, as
appears in Exhibit K, redeemed for himself the aforesaid “Varadero de
Iloilo,” and to that end, certificate of title No. 1985 was issued in
favor of the plaintiff Cho Chun Chac under date of August 1, 1922,
covering said property which certificate is Exhibit J. That on July 30,
1922, the plaintiff gave his brother, the defendant herein, an option
to repurchase from the plaintiff or his heirs and representatives the
“Varadero de Iloilo” for the sum of P17,280, for the term of three
years to expire on December 31, 1925, as stated in Exhibit G, that is
to say, a right of option in favor of the defendant was noted on the
back of transfer certificate of title No. 1985, and a notice of lis pendens filed on November 9, 1923.

The plaintiff in his first cause of action alleges himself to be the
owner of the personal property described in paragraph 2 of the
complaint, and that the defendant was withholding them as mere lessee
since August 1, 1922, and has not paid the monthly rent of P200, which
amounted to P2,800 on the date of the filing of the complaint; and in
the second cause of action the plaintiff alleges that on the back of
transfer certificate of title No. 1985 it was noted that said property
was subject to an option to repurchase for the sum of P17,280, and that
said notation must be cancelled on the ground that the aforesaid deed
of option registered as an incumbrance on the back of the aforesaid
transfer certificate of title is false, the signature of the plaintiff
having been forged; and that he has not executed the aforesaid deed of
option in favor of the defendant Maximo F. Garcia.

The
defendant in his answer made a general and specific denial of each and
every allegation of the complaint and as special defense alleges that
he is the owner of the property described in paragraph 2 of the
complaint, and that his title appears on transfer certificate of title
No. 1507; that on November 28, 1921, the aforesaid property was by him
sold with right of repurchase to Dña. Trinidad Ledesma de Arroyo for
the sum of P16,000, the period of redemption to expire on January 31,
1922, although the same may be extended up to July 31st of the same
year; that before the expiration of the period of redemption, the
plaintiff, finding himself without means for repurchasing said
property, proposed to, and requested his brother, the herein plaintiff,
to repurchase said property from Dña. Trinidad Ledesma de Arroyo, and,
once the redemption was effected, that the defendant be granted an
option to reacquire the same afterwards, to which proposition and
request the plaintiff acceded; that pursuant to said agreement between
the plaintiff and the defendant, the former made the redemption of said
property on July 26, 1922, and on the 30th of the same month he
executed a document granting the defendant an option to repurchase said
property within a period which was to expire on December 31, 1925, for
the sum of P17,280; that about the month of August, 1922, the
plaintiff, disregarding the deed of option of July 30th of the same
year and without knowledge of the defendant, negotiated and obtained
from the register of deeds of this province the transfer of said
property in his name by cancelling the certificate of title of the
defendant; that the defendant is, and has been, in possession of the
property in question since he acquired it without having made any
contract with anybody for the lease, occupation, and enjoyment of said
property.

Upon the allegations of the complaint and the
answer and the evidence introduced by the parties, the trial court
rendered judgment (a) declaring that the “Varadero de Iloilo”
belonged to the plaintiff Cho Chun Chac and that said plaintiff must be
restored in the possession of said property; (b) sentencing
the defendant Maximo F. Garcia to pay the plaintiff the sum of P160 per
month for the use and occupation of the “Varadero de Iloilo,” from
August 1, 1922, until the possession of the “Varadero de Iloilo” was
delivered to said plaintiff; (c) holding the signature of the
plaintiff on Exhibit G to be authentic and consequently that the
document Exhibit G, the deed of option, was valid and effective and
that therefore the defendant has the right to repurchase from the
plaintiff the “Varadero de Iloilo” for the sum of P17,280, said right
of option being enforceable up to December 31, 1925.

Both
parties appealed from this judgment of the trial court, the plaintiff
on account of the lower court having declared authentic the signature
of the plaintiff on Exhibit G and therefore the defendant had the right
to repurchase from the plaintiff the “Varadero de Iloilo” until
December 31, 1925; and on account of said court having held that at any
rate such right of redemption belonged to the partnership of Cho Chun
Yet & Co. in the hypothesis that the document Exhibit G was
authentic. The defendant appealed because he was sentenced by the trial
court to pay the plaintiff the sum of P160 per month for the use and
occupation of the property in question from August 1, 1922, until the
same was delivered to the plaintiff.

The fundamental
question in this case hinges on the authenticity of the signature of
the plaintiff on Exhibit G, that is, the contract of option in favor of
the defendant.

We have made a careful examination of the
signature of the plaintiff Cho Chun Chac on the aforesaid document
Exhibit G and its duplicate Exhibit I; we have compared said signatures
between themselves and with the indisputable signatures of the
plaintiff on the check Exhibit D and on Exhibit E, as well as the
photographic pictures of said signatures on Exhibits H and I, and we
have not found any essential difference in said signatures, taking into
consideration the manner in which the letters were traced, the
inclination of the letters, and the ending of the stroke of the letter C in the surname Chac. There is such identity in the tracing of the letters Ch
in Cho Chun Chac in the said six signatures, that there can be no doubt
that the same were written by the plaintiff Cho Chun Chac. Moreover, if
the document Exhibit G and its duplicate Exhibit I were false, as the
plaintiff claims, the fact cannot be explained how the defendant
succeeded in having said option noted on the back of the transfer
certificate of title of the plaintiff, without having obtained from the
latter said certificate and presented it to the register of deeds.
There is no allegation nor proof whatever that the defendant is guilty
of having fraudulently stolen said transfer certificate No. 1985.

On the other hand, the notary public, who authorized the document
Exhibit G and its duplicate Exhibit I, and the witnesses subscribing
the same, all affirmed that the plaintiff signed these documents in the
presence of said witnesses. Taking into account all the circumstances
surrounding the execution of the document Exhibit G and its duplicate
Exhibit I, we are of the opinion and so hold that said signatures are
authentic signatures of the plaintiff, and this being so, it is evident
that the defendant has the right to repurchase the aforesaid property
up to December 31, 1925, as was held by the trial court, upon payment
of the sum of P17,280.

As to the allegation of the
plaintiff-appellant that at all events the right of option belongs to
the partnership of Cho Chung Yet & Co., instead of to the defendant
Maximo F. Garcia, it must be noted that plaintiff’s counsel in his
memorandum and oral argument vigorously insists on his second
assignment of error. In answer to the arguments of the
plaintiff-appellant, it is sufficient to observe that, no parties
having appeared in this case except the plaintiff Cho Chun Chac and the
defendant Maximo F. Garcia, there is absolutely no reason for making
any pronouncement regarding other persons or entities, as the plaintiff
contends.

As to the appeal of the defendant, it appears
that on July 31, 1922, his right to redeem the property from Dña.
Trinidad Ledesma de Arroyo was extinguished, and his right to
repurchase it now depends only upon the contract of option evidenced by
Exhibit G, the true owner being the plaintiff from August 1, 1922,
according to certificate of title No. 1985. Therefore if the defendant
is in possession of the property in question, it is clear that he must
indemnify the owner for the use and occupation of said property, and we
believe that the amount of P160 per month fixed by the trial court is
reasonable, especially if it is taken into account that in Exhibit L,
that is, in the contract of sale with right of repurchase executed by
the defendant in favor of Dña. Trinidad Ledesma de Arroyo, it appears,
in one of its clauses, “that in case the vendor should return the
stipulated amount of P16,000 and the rents at the rate of P160 within
the period of redemption, the purchaser shall execute a deed of resale.”

We find the judgment appealed from to be in accordance with law, and it
must be, as is hereby, affirmed without special finding as to costs. So
ordered.

Johnson, Malcolm, Ostrand, Johns, and Romualdez, JJ., concur.