ESTEFANIA SILVESTRE ET AL., PETITIONERS, VS. LUIS P. TORRES, JUDGE OF FIRST INSTANCE OF MANILA, AND CRISPIN OBEN, RESPONDENTS.

In
this original petition for a writ of certiorari, it is prayed that,
after proper proceedings, the orders issued by the respondent judge,
Luis P. Torres, of the Court of First Instance of Manila, on June 15,
1932 and January 3, 1933, in civil case No. 37327 of said court, be
held null and void, upon the following grounds:

“1.
That the lower court cannot issue a writ of execution upon only a part
of the judgment, to wit, that referring to the sale of the land,
disregarding the right granted the petitioners to agree upon a new
lease, which right, moreover, must be exercised before the sale (Bank
of the Philippine Islands vs. Green, 48 Phil., 284, cited in
our argument), and because the court, in the execution of judgments,
has no more than merely ministerial functions (Hidalgo vs. Crossfield, 17 Phil., 466).

“2.
That the lower court cannot order the sale of the land free from any
encumbrance, inasmuch as it was not so decreed either by the Supreme
Court or by the trial court which originally took cognizance of the
case, even though plaintiff Crispin Oben made a prayer to that effect
in his complaint; for after final judgment, the duty of the court is
limited to the execution and enforcement of the said final judgment in
all of its parts and in accordance with the express terms thereof.
(Behn, Meyer & Co. vs. McMicking, 11 Phil., 276.)

“3. That for the same reason, the lower court cannot order the
cancellation of any mortgage, for to do so would be tantamount to the
reopening of the case for a new trial and decision upon a matter which,
at this stage of the proceeding, has become res judicata.

“4. That the court cannot order Francisco Gabriel, personally, to
execute a deed cancelling the mortgage in his favor, because petitioner
Francisco Gabriel was sued as the Administrator of the Testamentary
Estate of Antonio Martin Silvestre, and consequently, not having been
personally sued as such mortgagee, the court has never acquired
jurisdiction over his person. (Sec. 114 of C. C. P.; Lichauco vs. Limjuco and Gonzalo, 19 Phil., 12.)”

The following uncontroverted facts appear from the pleadings and other documents of record:

In civil case No. 37327 of the Court of First Instance of Manila, entitled “Crispin Oben, plaintiff, vs.
Estefania Silvestre, Quintina Silvestre (now deceased), Anselma
Silvestre, Victorino Silvestre, Inocencio Silvestre, Jose Silvestre,
and Francisco Gabriel, the last named as judicial administrator of the
testamentary estate of the late Antonio Martin Silvestre (now guardian
of the property of the minor Concepcion Silvestre, a daughter of the
said Antonio Martin Silvestre), defendants”, and at present
respondents, the said court, presided over by Judge Simplicio del
Rosario, rendered judgment on November 29, 1930, the dispositive part
of which reads as follows:

“The defendants
are hereby ordered to sell the parcels of land described in the
complaint to Mr. Crispin Oben for P3,216, which is deposited in the
office of the clerk of this court with the understanding that if both
parties prefer to allow the plaintiff to further continue as lessee, he
shall be bound to pay the rents agreed upon within the newly stipulated
period. Without costs.”

The case was brought up on appeal to this court as G. R. No. 35039, and on November 3, 1931^[1] the judgment of the trial court was affirmed.

The case having been remanded the court a quo,
through the herein respondent, Judge Luis P. Torres, on June 6, 1932
issued a writ of execution which was amended on June 15, 1932, as
follows:

“The undersigned having noticed
certain errors and omissions in the resolution rendered in this case on
the sixth instant, it is hereby amended to read as follows:

“Considering
the motions filed by the plaintiff for the execution of the judgment
rendered by this court in the present case, as affirmed by the Supreme
Court on the 27th of last November, as well as the answer filed by
counsel for the defendants, the court, having heard the arguments
submitted upon this point both orally and in writing, resolves :

“That the judgment rendered in this case must be executed, and it is hereby ordered:

“1.
That the defendants execute a deed of sale of their respective lots
involved in this litigation, in favor of the plaintiff Crispin Oben.

“2.
That the defendant, Francisco Gabriel, execute in favor of the
plaintiff a deed of cancellation of the mortgage executed in his favor,
and noted in certificate of title No. 20969 of the registry of deeds of
the City of Manila.

“3. That the defendant Francisco
Gabriel, as guardian of the minor Concepcion Silvestre, heiress of the
deceased mortgagor Antonio Martin Silvestre, cannot withdraw from the
office of the clerk of this court the sum of P804 belonging to said
minor, until he has executed in favor of the plaintiff the
aforementioned deed of cancellation; nevertheless, if said defendant so
desires, he is hereby authorized to apply said P804 as payment to
himself on account of the mortgage debt of P2,000, and to collect it
from the office of the clerk of this court.

“4. That the
defendant Quintina Silvestre shall execute a deed cancelling the
mortgage for P1,000 executed in her favor by Gaudencio Silvestre
one-third of lot 7-d, which was the undivided share of said
Gaudencio Silvestre in said lot 7-d, at the same time authorizing said
Quintina Silvestre, or her children and heirs, defendants herein, to do
so, instead of their collecting said amount.

“5. That the
defendants shall not take possession of the amount of P3,216 deposited
in the office of the clerk as the price of those two lots until said
defendants have executed in favor of the plaintiff the corresponding
deeds of sale and cancellation of the mortgage.

“6. That
as soon as said defendants have executed the two deeds of sale and the
cancellation of the mortgage, the transfer certificates of title Nos.
20969 and 20970 shall be detached from the record and delivered to the
plaintiff for presentation by him to the office of the registrar of
deeds of the City of Manila, and to be cancelled and substituted with
new ones in the name of the plaintiff Crispin Oben.”

The first question to decide, and which is raised in the answer filed
by the respondents, is whether the writ of certiorari is the adequate
remedy in the present case.

Section 217 of the Code of Civil Procedure provides the following:

“Sec. 217. Certiorari proceedings.—When
the ground of the complaint in an action in a Court of First Instance
is that an inferior tribunal, board, or officer exercising judicial
functions, has exceeded the jurisdiction of such tribunal, board, or
officer, and there is no appeal, nor any plain, speedy, and adequate
remedy, and the court, on trial, finds the allegations of the complaint
to be true, it shall render a judgment ordering such inferior tribunal,
board, or officer, or other person having the custody of the record or
proceedings, at a specified time and place, to certify to the court a
transcript of the record and the proceedings (describing or referring
to them with convenient certainty), that the same may be reviewed by
the court; and requiring the party, in the meantime, to desist from
further proceedings in the matter to be reviewed, if, in the judgment
of the court, a stay ought to be granted.”

According to the foregoing provision of law, two things are required in
order that the extraordinary remedy of certiorari may be invoked: (1)
That the inferior tribunal, board, or officer whose order or decision
is sought to annul has exceeded its or his jurisdiction in entering
such order or rendering such decision; and (2) that there is no appeal,
nor any plain, speedy, and adequate remedy.

The phrase “adequate remedy” is defined in 11 Corpus Juris, page 113, as follows:

“An
adequate remedy has been defined as ‘a remedy which is equally
beneficial, speedy and sufficient, not merely a remedy which at some
time in the future will bring about a revival of the judgment of the
lower court complained of in the certiorari proceeding, but a remedy
which will promptly relieve the petitioner from the injurious effects
of that judgment and the acts of the inferior court or tribunal.’ “

Now then, is the first requisite present?

As we have seen, the first ground of the petition under consideration
is that the respondent judge acted in excess of his judicial powers in
issuing a writ of execution for only a part of the judgment, to wit,
that referring to the sale of the land, disregarding entirely the right
granted to the petitioners to agree on a new lease which they must be
permitted to exercise before they can be compelled to effect the sale.

According to the dispositive part of the judgment, the execution of
which is in question, the right to enter into a new contract of lease
has been reserved not only to the petitioners, but also to the
respondent Crispin Oben. In order that a new contract of lease may take
place, the consent of both parties is necessary. The record shows that
respondent Crispin Oben told the petitioners before the issuance of the
writ of execution in question that he did not desire to continue with
the lease. Inasmuch as it is no longer possible to have the consent of
the petitioners and the respondent Crispin Oben to a new lease, the
right reserved to them was rendered ineffective. The obligation imposed
upon the aforesaid petitioners to execute a deed of sale in favor of
the respondent Crispin Oben, was therefore the only one subsisting at
the time of the issuance of the writ of execution in question.

The respondent judge did not, therefore, act in excess of his judicial
powers as the petitioners allege in their first contention.

In the second ground upon which this petition is based, it is also
alleged that the respondent judge exceeded his jurisdiction in ordering
that in the deed of sale it be made to appear that the property is free
from all liens and encumbrances.

The petitioners admit in
their second ground, that respondent Crispin Oben prayed in his
complaint in case No. 37327 that the deed of sale should recite that
the lands were free from all liens and encumbrances. The question as to
whether or not in the deed of sale the property was to be free from all
liens and encumbrances was therefore involved in the litigation. The
courts of justice have constantly held that a judgment determines all
the questions necessarily involved in the litigation. If this is so,
the question whether in the proposed sale the property was or was not
subject to the condition that it should be free from all liens and
encumbrances, was included in the judgment with the execution of which
we are now concerned, and the respondent judge committed no abuse of
judicial power in ordering that the defendants in that case and
petitioners herein, execute a deed of sale in favor of the defendant in
said case and respondent herein, Crispin Oben, free from all liens and
encumbrances.

In the third and fourth grounds, it is
contended that the respondent judge exceeded his jurisdiction in
ordering Francisco Gabriel to personally execute a deed cancelling the
mortgage in his favor, inasmuch as in the former case the cancellation
of any mortgage in favor of said Francisco Gabriel was not involved nor
was he a party to that case in his personal capacity.

It is
likewise an established doctrine that courts of justice have
jurisdiction to determine only those questions submitted by the parties
for adjudication over which they have legally acquired jurisdiction, as
well as to order the execution of their judgments. In the former case
the respondent judge had jurisdiction only to decide whether plaintiff
Crispin Oben had an option to purchase by virtue of the contract of
lease, and the defendants, the obligation to sell free from all liens
and encumbrances, the lands described in the complaint filed in that
case, as that was the only question submitted to him over which he had
been requested to exercise his jurisdiction. No question regarding the
cancellation of a mortgage was involved in said former case. The
respondent judge, then, acted in excess of his jurisdiction in ordering
Francisco Gabriel to execute a deed of cancellation of the mortgage in
his favor. (Bank of the Philippine Islands vs. Green, 148 Phil., 284.)

In view of the fact that the respondent judge has exceeded his judicial
powers on some points in his writ of execution of the judgment of June
15, 1932, the question arises as to whether or not the writ of
certiorari is the most adequate remedy to correct such an excess of
jurisdiction.

The respondents contend that the ordinary
recourse of appeal is adequate, and in support of their theory cite the
case of Bank of the Philippine Islands vs. Green, supra,
where, in order to correct an alleged excess of jurisdiction committed
through issuance of a writ of execution for the sale of mortgaged
property, of which no mention was made in the decision, the defendant
appealed from the writ of execution and this court revoked it, holding
that said writ was issued in excess of jurisdiction.

Without
discussing whether in that case the ordinary remedy of appeal and not
the extraordinary remedy of certiorari was adequate, we may state that
the fact that a party having more than one remedy at his disposal,
elects one of them, and this choice is sanctioned by this court, does
not imply necessarily that the remedy elected by him and sanctioned by
the court is the most adequate in the case.

In the present
case, where the excess of jurisdiction consists in having ordered the
execution of acts not included in the judgment by persons who have not
been parties to the litigation, the speedy and adequate remedy is the
extraordinary writ of certiorari, and not the ordinary recourse of
appeal, which is slow and more expensive.

The record also
shows that after the execution of the contract of lease with the option
to purchase, between the herein petitioners and the respondent Crispin
Oben, and its registration in the proper register of deeds, with the
corresponding annotation on the owner’s certificate of title, the said
petitioners mortgaged the land without the knowledge or consent of the
lessee. In this case the petitioners may be compelled to liberate the
leased land from the encumbrances existing thereon, and in case of
their failure to do so, the lessee and vendee may be authorized to
release the land from encumbrance by deducting from the sale price the
sum he may have disbursed to secure said release.

In view of
the foregoing considerations, we are of opinion and so hold: (1) That
the availability of the ordinary recourse of appeal does not constitute
sufficient ground to prevent a party from making use of the
extraordinary remedy of certiorari; but it is necessary, besides, that
the ordinary appeal be an adequate remedy, that is, “a remedy which is
equally beneficial, speedy and sufficient, not merely a remedy which at
some time in the future will bring about a revival of the judgment of
the lower court complained of in the certiorari proceeding, but a
remedy which will promptly relieve the petitioner from the injurious
effects of that judgment and the acts of the inferior court or
tribunal”; (2) That a court in ordering a person who has not been a
party to a case in his personal capacity, to execute a deed of
cancellation of a mortgage existing in his favor, which has not been
the subject matter of litigation, acts in excess of its jurisdiction;
(3) That to correct such an excess of jurisdiction, the adequate remedy
is the writ of certiorari, and not an appeal; and (4) That one who has
already begun an appeal is not barred from applying for the
extraordinary remedy of certiorari, if the latter proves to be the
adequate remedy.

By virtue whereof, the orders of the
respondent judge dated June 15, 1932 and January 3, 1933, are set
aside, with the exception of that part thereof requiring the
petitioners to execute a deed of sale of the property in favor of the
respondent Crispin Oben, free from all liens and encumbrances, without
special pronouncement as to costs. So ordered.

Street, Hull, Vickers, and Imperial, JJ., concur.

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^[1] 56 Phil., 809.