BEATRIZ G. VDA. DE DIOS, PLAINTIFF-APPELLEE, VS. LEANDRO BALAGOT, PETITIONER-APPELLANT, VS. J.M. TUASON & CO., INC., AND PEDRO DEUDOR, OPPOSITORS-APPELLEES.

An action for recovery of possession of land was filed on January 24, 1963 by Beatriz G. Vda. de Dios
against Leandro Balagot, in the Court
of First Instance of Rizal, Quezon City branch.  Plaintiff alleged in her complaint that she
is the registered owner of 1,296 square meters of land situated in Quezon City covered by Transfer Certificate of Title No.
52577 of the Registry of Deeds of said city, issued in her name on September 6,
1960; that she had purchased the same from J.M. Tua­son
& Co., then the registered owner of the land under Transfer Certificate of
Title No. 49235; that “prior to September 6, 1960 up to the present”
defendant has been in possession of a portion of about 600 square meters of
said parcel of land, without the knowledge and tolerance of J.M. Tuason & Co., and that in spite of demands on him by
plaintiff and her predecessor-in-interest, defen­dant has failed and refused to
vacate the land and re­move his house and other construction thereon.

The defendant, on February
12, 1963, filed an ans­wer with a counterclaim.  Alleged therein were that the portion of land
occupied by defendant, an area of 700 square meters, was part of the 50 quiñones of land first owned by Telesforo Deudor in 1873;
that from Pedro Deudor, successor-in-interest of Telesforo, he bought the portion of land in question for
P4,900.00 on August 30, 1950; that right after the sale, he took possession of the land, subsequently constructing thereon a
house worth P40,000.00; that pursuant to an agreement between J.M. Tuason & Co., and the Deudor
heirs dated March 16, 1953, defendant’s right to the land has preference over
the sale in favor of plaintiff; that, therefore, plaintiff should reconvey the portion of the land involved herein to defendant or pay him P4,900.00 for the land, P40,000.00 for his
house, and P5,000.00 for attorney’s fees and da­mages.

Plaintiff, on February
19, 1963, answered defendant’s counterclaim.  On March
14, 1963 the court set the case for hearing on May 17, 1963. 
Prior to this scheduled date, however, on April 1, 1963, defendant filed a motion for leave to file a
third-party complaint, attaching the same to the motion, against J.M. Tuason & Co. and Pedro Deudor,
for payment of the value of the house and lot in case of eviction.

Plaintiff, served with notice of the motion, opposed it on April 6, 1963, stating that a third-party
complaint to enforce the warranty of eviction should have been filed before the
time for filing the answer, citing Article 1559, Civil Code; and that the Tuason-Deudor
agreement defen­dant mentioned has been declared rescinded, citing this Court’s
ruling in J.M. Tuason & Co. v. Sanvictores, L-­16836, January 30, 1962.

Said defendant’s motion was denied on June 11, 1963, “for lack of
merit”.  From the order denying his
motion for leave to file a third-party complaint defendant ap­pealed to the
Court of Appeals.  The appeal was
certified to Us since the Court of Appeals found it to
involve ques­tions purely of law, namely:

(1) Is the third-party complaint admissible or not?

(2) May the order denying the admission of the third-party
complaint be appealed from at this stage of the
proceedings?

As a rule the admission of a third-party complaint is left to the
discretion of the trial court.  The pre­sent
case, however, involves a third-party complaint seek­ing to enforce a vendor’s
warranty in case of eviction.  And
pursuant to express provision of Article 1558 of the Civil Code, a defendant-vendee in a suit for eviction must
summon in said suit his vendor, otherwise the latter
shall not be obliged to make good his aforesaid warranty:

“Art. 1558.  The vendor shall not be obliged to
make good the proper warranty, unless he is summoned in the suit for eviction
at the instance of the vendee.

As stated, appellee’s contention is
that this sum­moning of the vendor should take place before the answer is
filed, under Art. 1559 of the
Civil Code:

“Art. 1559.  The defendant vendor shall ask, within the time
fixed in the Rules of Court for answering the complaint, that the vendor be
made a co-defendant.”

The act of summoning the vendor can be accomplished either under
Article 1559 of the Civil Code,
by asking that said vendor be made a co-defendant, in which case the request
should be made within the time for answering the complaint; or thru the filing of a third-party complaint
against said vendor, under Sec. 1, Rule 12, now Sec. 12 of Rule 6 of the Rules of Court, which
provides:

“SEC. 12.  Third-party complaint.  – A third-party complaint is a claim that
a defending party may, with leave of court, file against a person not a party
to the action, called the third-party defendant, for contribution, in­demnity,
subrogation or any other relief, in respect of his opponent’s claim.”

In the first case, the vendor is summoned by being made a
co-defendant; in the second, by being made a third-party defendant.  From this it can be seen that a third-party
complaint filed after the answer but before trial is not late; Article 1559’s time-limit does not apply
thereto.  And Sec. 2 of Rule 12 of the
old Rules of Court, then applicable, provided that after service of his ans­wer,
defendant may, with notice to plaintiff, move for
leave as third-party plaintiff to file a complaint against a third-party
defendant.

As adverted to above, in this case, the third-party complaint, as
against Pedro Deudor, seeks enforcement of the
warranty against eviction.  The same is
thus required by law to be resorted to instead of being left to be filed as a
separate action.  If not raised in the
action for eviction, the same will not prosper and the vendor will be released from
his warranty.  Not only does the
admission of the third-party complaint against Pedro Deu­dor,
avoid multiplicity of suits; it is necessary for de­fendant to enforce said
warranty against his vendor.

As regards J.M. Tuason & Co., and
defendant, however, no relationship of vendor and vendee obtains and the
third-party complaint does not partake of the nature of an enforcement of a
warranty against eviction; rather, it seeks to enforce the Tuason-Deudor
agreement.  As such, the trial court
properly disallowed the same.  Article 1558 of the Civil Code requires
defendant in eviction to summon to the suit his vendor, in this case Pedro Deudor; non-parties
to the sale, such as J.M. Tuason & Co., do not
have to be summoned therein; hence, there being no necessity for inclusion of
J.M. Tuason & Co., the dis­allowance of the
third-party complaint against it was not erroneous.

As to the appealability of the order
disallowing the third-party complaint against Pedro Deudor,
suffice it to reiterate that the same would finally dispose of defendant’s
right to enforce his warranty against evic­tion, since a separate action for
the same, without having thus summoned to the suit the vendor, would not pros­per
(Art. 1558, Civil Code, supra).  After said disallow­ance, nothing further was
left to be done in the court a quo, as regards defendant’s right
to enforce against Deudor the warranty of eviction.  Said denial was therefore
appealable.

WHEREFORE, the order appealed from is modified, so as to
allow the filing of the third-party complaint as against Pedro Deudor but not against J.M. Tuason
& Co. Case remanded to the court a quo for further
proceedings.  No costs.

SO ORDERED.

Reyes, Makalintal, Zaldivar, Sanchez, Castro, Angeles, and Fernando, JJ., concur.

Concepcion, C.J., and Dizon, J., on official leave.