PAZ DE SANTOS, CONSUELO DE SANTOS AND JOSE MARIANO DE SANTOS, PETITIONERS AND APPELLANTS, VS. BANK OF THE PHILIPPINE ISLANDS, OPPOSITOR AND APPELLEE.

This
is an appeal taken by the petitioners herein Paz, Consuelo and Jose
Mariano de Santos, from the order of the Court of First Instance of
Manila, which reads as follows:

“Upon
consideration of the petition filed by Paz, Consuelo and Jose Mariano
de Santos praying that this court order the cancellation of the lien
annotated on their certificates of title consisting in the preliminary
attachment of the properties described therein, in favor of the Bank of
the Philippine Islands; it appearing that this same5 motion had already
been previously filed, that is on July 6, 1931, and denied by this same
court; it appearing, likewise, that a similar petition had been filed
in civil case No. 39435 of the Court of First Instance of Manila,
entitled ‘Bank of the Philippine Islands vs. Isidoro de Santos
et al.’, which petition was also denied by the said court which heard
the motion in question on September 30, 1931; and it appearing further
that said orders have not been appealed from and have therefore become
final on the ground that the period fixed by law within which they
might have been again considered by this court has elapsed; and it
appearing furthermore that the provisions of the Civil Code and of the
Code of Civil Procedure cited by the petitioners in their motion under
consideration by this court are not applicable to nor can serve as a
ground for the aforesaid motion filed by them, inasmuch as they contain
nothing with reference to liens in favor of third persons who are not a
party to the partition in question;

“Wherefore, the petition of the aforesaid petitioners herein is hereby denied. It is so ordered.”

In support of their appeal, the petitioner-appellants assign the following alleged errors in the decision of the court a quo, to wit:

“1.
In not ordering the cancellation of the preliminary attachments noted
at the back of the new certificates of title Nos. 39885, 39879 and
39880 issued respectively to each of the three herein appellants for
their respective shares in the community property.

“2. In
holding the orders of the court of July 31, and of September 30, 1931
mentioned in the appealed order, as binding and conclusive in the
instant case.

“3. In ordering the appellants to include in
their bill of exceptions the aforementioned order of September 30,
1931, which was issued in the case of the Bank of the Philippine
Islands vs. Isidoro de Santos et al., No. 39435, by a judge of the Sala other than the one in which the present case was heard.”

The following pertinent facts are necessary for the solution of the questions raised in this appeal:

The petitioner-appellants herein Paz, Consuelo and Jose Mariano de
Santos, together with their brothers Felipe and Isidoro de Santos, were
owners pro indiviso of nine parcels of land described in the
transfer certificates of title Nos. 34394, 34395, 34396, 34397, 34398,
34399, 34400, 34403 and 34530.

On March 26, 1930, Isidoro de
Santos and Paulino Candelaria executed jointly and severally in favor
of the herein oppositor-appellee, Bank of the Philippine Islands, a
promissory note for the sum of P45,000 payable within ninety days with
interest at the rate of 9 per cent per annum, delivering the promissory
note in question (Appendix B) to the aforesaid bank.

Inasmuch as Isidoro de Santos and Paulino Candelaria failed to pay the
amount of the said promissory note upon maturity and after demand had
been made upon them therefore the aforesaid oppositor-appellee, Bank of
the Philippine Islands, on April 18, 1931, filed a complaint against
Isidoro de Santos and Paulino Candelaria with the Court of First
Instance of Manila, praying for the issuance of a writ of preliminary
attachment against their properties, which was issued and annotated on
the back of each and every one of the transfer certificates of title
hereinbefore enumerated.

Three days after the issuance of
the said writ of attachment and the annotation thereof on the back of
the aforesaid transfer certificates of title, that is on April 21,
1931, the herein petitioner-appellants, together with Isidoro and
Felipe de Santos executed an extra judicial partition of the parcels of
land in question.

On July 6, 1931, Felipe de Santos filed a
motion in Cadastral Case No. 3 and others, G. L. R. O. Record No. 63
and others, of the Court of First Instance of Manila, praying, among
other things, (1) that the aforesaid extrajudicial partition be
approved by the court, and (2) that the preliminary attachment of the
interest of Isidoro de Santos in each and every one of the nine parcels
of land described in the transfer certificates of title hereinbefore
enumerated, be consolidated into the parcels of land adjudicated to him
by virtue of the aforesaid extrajudicial partition.

Although
the petitioner-appellants herein and Isidoro de Santos were duly
notified of the hearing of the aforesaid motion which was set for July
14, 1931, as evidenced by the notice and the note of Attorney Javier
appearing at the foot thereof, none of them appeared at the hearing.

On July 31, 1931, the Court of First Instance of Manila, in deciding
the aforesaid motion of Felipe de Santos, stated the following:

“The
petition is hereby denied with respect to the properties described in
the transfer certificates of title Nos. 34396, 34398 and 34403, on the
ground that the first two properties are mortgaged to Luis Mirasol and
the last to the Philippine Guaranty Co., Inc., inasmuch as the mortgage
constituted thereon is subscribed to jointly and severally by all the
coowners thereof. The motion to the effect that all the attachments
issued against Isidoro de Santos be consolidated exclusively on the
properties adjudicated to him by virtue of the aforesaid deed of
partition is, likewise hereby denied.”

Neither the petitioner Felipe de Santos nor the herein
petitioner-appellants Paz, Consuelo and Jose Mariano de Santos, nor
Isidoro de Santos excepted to nor appealed from the order
above-mentioned.

On September 30, 1931, the Court of First
Instance of Manila denied the motion filed by Felipe de Santos in civil
case No. 39435 of the said court, wherein he prayed, among other
things, that the said court order the register of deeds of the City of
Manila to note on the back of transfer certificates of title Nos. 34397
and 34530 the preliminary attachment in favor of the Bank of the
Philippine Islands, referring to that portion of the property described
in subdivision plan Psd 7299, and to cancel the preliminary attachments
noted on the back of transfer certificates of title Nos. 34394, 34395,
34396, 34398, 34399, 34400 and 34403, and on the back of transfer
certificate of title No. 34530 with respect to that portion of the
property described therein, which was adjudicated to the said
petitioner. The court based its aforesaid decision on the ground that
neither the said petitioner Felipe de Santos nor the defendant therein,
Isidoro de Santos, has the right to compel the plaintiff Bank of the
Philippine Islands to conform to the attachment of only those
properties adjudicated to the said defendant Isidoro de Santos by
virtue of the deed of partition, in lieu of his right to an undivided
one-fifth of each of the nine parcels of land hereinbefore enumerated.

Neither the petitioner Felipe de Santos nor the defendant therein, Isidoro de Santos, appealed from the above order.

On August 3, 1932, one year after the motion of Felipe de Santos was
filed in the said civil case No. 39435, the herein
petitioner-appellants filed a motion in the cadastral cases
aforementioned, praying for the cancellation of the annotation of the
preliminary attachments levied on the interest of Isidoro de Santos
before the partition, appearing an the back of the new transfer
certificates of title issued in their name after the partition, said
annotation having been made pursuant to the order of the court issued
in said cadastral cases on July 31, 1931.

On September 17, 1932, the court denied the motion in question by the aforesaid order from which this appeal was taken.

It being procedural in nature, we shall first pass upon the question
raised in the second assignment of error, to wit: that the trial court
erred in holding the orders of the court of July 31, and of September
30, 1931, as binding and conclusive in the instant case.

It
can be inferred from the order of September 17, 1932, appealed from,
that in denying the motion for the cancellation of the preliminary
attachments filed by the herein petitioner-appellants on August 5,
1932, the court a quo based its decision on the ground that a
similar motion for the cancellation of the preliminary attachments in
question had already been filed in the said case on July 6, 1931, and
denied by the order of July 31, 1931; and another in civil case No.
39435 of the Court of First Instance of Manila entitled “Bank of the
Philippine Islands vs. Isidoro de Santos et al.”, which was
likewise denied on September 30, 1931. Inasmuch as the orders denying
the aforesaid motions have not been appealed from, they have therefore
become final and conclusive.

The order of the court a quo
denying the motions in question is based, therefore, on the assumption
that the question regarding the cancellation of the preliminary
attachment sought by the petitioner-appellants has become res judicata. This court has constantly held that in order that res judicata
may exist, it is necessary that there be identity of parties, of
grounds or causes of action and of things or subject matter under
litigation (Aquino vs. Director of Lands, 39 Phil., 850; Isaac vs. Padilla, 31 Phil., 469; Donato vs. Mendoza, 25 Phil., 57; Roman Catholic Archbishop of Manila vs. Director of Lands, 35 Phil., 339).

The motion for cancellation dated July 6, 1931, was filed by Felipe de
Santos alone, and the fact that the herein petitioner-appellants were
notified thereof has not made them parties to the said motion, inasmuch
as they were not included in the motion in question in accordance with
section 114 of the Code of Civil Procedure.

Neither were the
herein petitioner-appellants made parties to the motion for
cancellation of the preliminary attachment filed by Felipe de Santos in
civil case No. 39435 of the Court of First Instance of Manila, on
August 5, 1931, wherein the Bank of the Philippine Islands was
plaintiff and Isidoro de Santos et al. were defendants.

In
the motion under consideration, the denial of which is the subject
matter of this appeal, Felipe de Santos is not a party-petitioner.
Therefore, there is no identity between the petitioner in the motions
of July 6, and of August 5, 1931, respectively, and the parties to the
motion under consideration.

In the two motions of July 6,
and of August 5, 1931, mentioned above, wherein Felipe de Santos alone
was the petitioner, the subject matter thereof could not be other than
the properties adjudicated to him by virtue of the deed of partition,
which properties he wished to free from the attachment, inasmuch as he
neither acted nor could act in representation of his coowners for the
reason that he was not authorized to do so. In the motion under
consideration, the petitioner-appellants pray for the cancellation of
the annotation of the preliminary attachment on the back of the new
transfer certificates of title issued in their respective names, by
virtue of the order of the court in the cadastral case, on July 31,
1931. If the properties which Felipe de Santos sought to free from the
preliminary attachment in his motions of July 6, and of August 5, 1931,
were those which had been adjudicated to him by virtue of the
partition, and the properties which the herein petitioner-appellants
seek to free from the same attachment in their, motion to that effect
are those which corresponded to them by virtue of the aforesaid
partition, which properties are separate and distinct from those
adjudicated to Felipe de Santos, neither is there identity of subject
matter under litigation herein. The only point where there is identity
is in the cause or ground of action for cancellation, which is the same
in the aforestated motions of July 6, and of August 5, 1931, as well as
in the motion under consideration, which ground consists in the
partition of the properties owned in common.

Therefore, there being no identity either of parties, or of subject matter or thing under litigation, there is no res judicata.

The second question to decide in this appeal, which is raised in the
first assignment of error, is whether or not it is proper to order the
cancellation of the preliminary attachment annotated on the back of the
new transfer certificates of title Nos. 39885, 39879 and 39880, issued
respectively in the names of the herein petitioner-appellants for their
respective shares in the community property.

Inasmuch as
article 403 of the Civil Code authorizes creditors to contest a
partition already made in case of fraud, or when it has been made to
the prejudice of existing rights and interests, and inasmuch as the
oppositor-appellee herein, Bank of the Philippine Islands, was not
notified of the partition made among the herein petitioner-appellants
and their coowners Felipe de Santos and Isidoro de Santos, and was not
given an opportunity to contest the partition already made, nor the
approval thereof by the cadastral court, the case should be remanded to
the court a quo in order to permit the said
oppositor-appellee, Bank of the Philippine Islands, to file the
objections it may deem convenient, in accordance with the provisions of
article 403 of the Civil Code cited above.

In view of the
foregoing considerations, we are of the opinion and so hold that
inasmuch as the partition of the properties held under title of common
ownership was made without notifying the creditors thereof, said
creditors may contest the partition in question in case of fraud, or
when it has been made to the prejudice of existing rights or interests.

Wherefore, the order appealed from is hereby reversed and the case ordered remanded to the court a quo
in order to give the herein oppositor-appellee, Bank of the Philippine
Islands, an opportunity to contest the partition in accordance with the
provisions of article 403 of the Civil Code, without special
pronouncement as to costs. So ordered.

Avanceña, C.J., Malcolm, Hull, and Imperial JJ., concur.