PEDRO ESCUTIN, DOMINGA ESCUTIN, ASSISTED BY HER HUSBAND JOSE BAUSON, CONSUELO ESCUTIN, ASSISTED BY HER HUSBAND GREGORIO CASTANEDA, AND CAROLINA ESCUTIN, PLAINTIFFS AND APPELLEES…

VICKERS, J.:

Plaintiffs brought this action in the Court of First
Instance of Capiz for the annulment of the deed of sale, Exhibit A,
executed in the municipality of Capiz, Capiz Province, by Sabas Escutin,
now deceased, on February 26, 1932, and ratified before the notary
public, Rafael Lozada, on the same date, whereby he conveyed to the
defendant lot No. 1801 of the cadastral survey of Dao, Capiz Province,
for P1,925.

The trial judge found the deed in question to be
null and void because it was simulated and fraudulent, and that the land
therein described was the property of the plaintiffs.

It appears from the evidence that Sabas Escutin was
married forty years ago to Paula Arboly, who is still living, by whom he
had four children, the plaintiffs herein. Formerly Sabas Escutin lived
with his wife and children in the municipality of Dao, but he left them
and for many years prior to his death on March 10, 1932, had been living
with his mistress, Juana Yap, in Capiz. The defendant Socorro Escutin
is the daughter of Juana Yap, and lived in the same house with Sabas
Escutin and her mother. Sabas Escutin was sick for a long time before he
died. On February 26, 1932, twelve days prior to his death, Sabas
Escutin executed the public instrument in question, which purports to
evidence the sale to the defendant for P1,925 of a parcel of registered
land in the municipality of Dao, having an area of 19 hectares, 21 ares,
and 43 centares, more or less. The reasonable market value of this
land, a part of which was used for growing rice and the rest of it for
raising corn, was P3,750.

The contention of the appellant is that the
consideration of pl,925 was delivered to Sabas Escutin in cash at the
time of the execution of the deed; that the document was signed by Sabas
Escutin in the presence of two employees of the Court of First Instance
of Capiz and the notary public, Rafael Lozada. No money was paid over
in the presence of the witnesses. The notary public testified, however,
that the defendant took a bundle of bank note3 from a wardrobe in the
room where the document was signed and handed the money to Sabas
Escutin, who counted it.

The .document in question was presented to the
register of deeds of the province on April 27, 1932, but no transfer
certificate of title was issued in favor of the defendant, nor did the
defendant take possession of the land.

To state the fact euphemistically, we cannot credit
the testimony of the notary public respecting the delivery of the money
by the defendant to the deceased Sabas Escutin. The evidence shows that
neither the defendant, who is unmarried, nor her mother had any
occupation or profession or any real property or other source of income
which might have enabled the defendant to pay the sum stipulated in the
document in question. The defendant and her mother lived in the house
with Sabas Esmtin and at his expense. When the family of the deceased
came to remove his body to Dao for burial, the defendant and her mother
stated that Sabas Escutin had not left any money, and his family had to
defray the expenses of his interment.

Daniel Amancio, an inspector of the Capiz Motor Bus
Co., testified that in February, 1932 Juana Yap told him that Sabas
Escutin had a parcel of land in Lacaron, in the municipality of Dao,
which he was trying to sell; that he answered that he did not have any
money with which to buy it; that Juana Yap then told him that he was not
to be the real purchaser, but only a figurehead, because in case of the
death of Sabas Escutin he would convey the land to Socorro Escutin;
that when he refused, the defendant said that he did not have any pity
for her, although she regarded him as a brother.

Sofronia Escolin testified that1 she took care of
Sabas Escutin during his last illness; that she was present when Juana
Yap and the defendant begged him to convey the land in the barrio of
Lacaron, municipality of Dao, to the defendant, but he did not answer
them; that three days later the defendant and her mother cried and again
requested Sabas Escutin to convey the land in Lacaron to the defendant;
that Juana Yap left the house but came back two hours later with a
document, which was placed by her on a book on a pillow, and Sabas
Escutin then signed it; that no money was paid by the defendant or her
mother to Sabas Escutin; that the defendant told her that the document
was executed in order that she might have something to live on in case
of the death of her father; that the defendant requested her not to
mention the matter to anyone.

Neither the defendant nor her mother took the
witness stand, although they were present in court when Daniel Amancio
anfl Sofronia Escolin testified, and the case for the defendant as to
the payment of the consideration rests upon the uncorroborated testimony
of the notary public. In our opinion the evidence fully sustains the
findings of the lower court that the consideration stated in the deed
was fictitious, and the document was executed in fraud of the
plaintiffs. It is therefore without force or effect in accordance with
article 1275 of the Civil Code, which provides that contracts without
consideration or with an illicit consideration produce no effect
whatsoever.

It was held in the case of Ocejo, Perez & Co. vs.
Flores and Bas (40 Phil., 921), that a contract of purchase and sale is
null and void and produces no effect whatsoever where it appears that
the same is without the cause or the consideration which should have
been the motive thereof, or that the purchase price which appears
therein as paid was never in fact paid by the purchaser to the vendor.

In the case of De Belen vs. Collector of
Customs and Sheriff of Manila (46 Phil., 241), this court held that a
simulated transfer of property made without consideration and with
intent to. hinder, delay, or defraud the creditors of the grantor
constitutes no obstacle to the levy of legal process of any sort
directed against the grantor; that in such case no independent action to
rescind or annul the transfer is necessary; that a simulated contract
lacks some of the elements necessary to make any contract whatever and
may be treated as non-existent for all purposes.

In the case of Gallion vs. Gayares (53
Phil., 43, 48), this court said: “* * * It is established doctrine in
this court that a simulated transfer of property made without
consideration and with intent to defraud the creditors of the grantor
may be treated as non-existent (De Belen vs. Collector of
Customs and Sheriff of Manila, 46 Phil., 241). A wife who is damnified
by a fraudulent conveyance of property, effected by her husband, is
substantially in the position of a creditor who is defrauded by a
fictitious transfer executed by his debtor. We are of the opinion, in
short, that the wife, so defrauded, has a remedy, under article 1413 of
the Civil Code, to annul the transfer and cancel the Torrens title
issued in favor of the grantee * * *

It is true, as alleged in the fourth assignment of error, that if the
contract in question were valid in all other respects, its validity
would not be affected by the fact that the notary public before whom it
was acknowledged was not eligible for appointment in the provincial
capital because he was not an attorney-at-law. The decision appealed
from does not rest, however, upon the erroneous holding of the lower
court respecting the acknowledgment, but upon the lack of consideration.
This disposes of the casP on its merits.

In the first and second assignments of error the
defendant and appellant alleges that the trial court erred in denying
her motion, dated April 4,1933 (Bill of Exceptions, p. 9), to strike out
paragraph III of the complaint and the words, “with his paramour, their
daughter”, contained in paragraph IV of the complaint and also the
words, “his illegitimate daughter and the paramour of the said
deceased,” contained in paragraph VI of .the complaint; and in admitting
evidence tending to investigate the paternity and filiation of the
appellant with regards to the deceased Sabas Escutin over the objection
of the defendant and appellant.

We think these two assignments of error are well
taken, because the allegations in the complaint to the effect that Sabas
Escutin was the father of the defendant were immaterial and irrelevant,
and should have been stricken out in accordance with section 107 of the
Code of Civil Procedure. The purpose for which the action was brought
was to annul a deed of sale executed by Sabas Escutin in favor of the
daughter of his mistress. The question of the paternity of the defendant
was not involved.

As to whether or not the prohibition of article 141
of the Civil Code of any inquiry into the paternity of illegitimate
children who do not have the legal qualification of natural children is
applicable in a case like the present, we do not now need to decide.
“Generation is a mysterious act of nature.” (Borres and Barza vs.
Municipality of Panay, 42 Phil., 643, 651; decision of the Supreme
Court of Spain, April 20, 1892.) Plaintiffs had no means of establishing
the truth of their allegations respecting the paternity of the
defendant. The testimony of plaintiffs’ witnesses that Sabas Escutin was
the father of the defendant is of no probative value and the finding of
the trial judge that the defendant is an adulterous child of the
deceased Sabas Escutin is clearly not justified by the evidence. The
errors complained of are not, however, reversible errors, because they
in no way affect the proof that the contract in question was without
consideration.

The decision of the lower court is therefore
affirmed, with the costs against the appellant.

Avanceña, C. J., Abad Santos, Hull, and Diaz,
JJ., concur.