MACONDRAY & CO., INC., PLAINTIFF AND APPELLANT, VS. PEDRO COLETO, DEFENDANT AND APPELLEE. ISABEL COLETO DE ORTIZ, INTERVENOR, MACONDRAY & CO., INC., ET AL., CROSS-DEFENDANTS.

On September 19,1927, the defendant constituted a mortgage on a Chrysler
car in favor of the plaintiff to secure the payment of several
promissory notes amounting to P2,600 which represent the balance on
said mortgaged car purchased from the plaintiff. As some of these
promissory notes had not been paid, the plaintiff foreclosed the
mortgage and in this manner the car was attached and sold at public
auction to said plaintiff for P1,000. Inasmuch as the defendant later
failed to pay the balance of the indebtedness not covered by the
proceeds of the sale of the car, the plaintiff, on September 10, 1928,
brought an action in the Court of First Instance of Cebu (civil case
No. 7363) for the recovery of said balance. The defendant was ordered
to pay the sum of P1,800 with interest thereon at 12 per cent from May
3, 1928, until fully paid, plus P180.80 as attorney’s fees and
collection expenses. On September 2, 1928, a writ of execution of said
judgment was issued to the provincial sheriff of Surigao. As the
defendant Pedro Coleto was then the provincial sheriff of Surigao, the
Court of First Instance of Cebu appointed Mamerto Labita special
sheriff to proceed with the execution.

In compliance with this writ of execution, Labita attached the real
properties in question as the defendant’s properties and sold them to
the plaintiff, as the highest bidder, at public auction in Cebu.

Two questions are raised in this case one of which is the nullity of this sale made by sheriff Labita.

One of the grounds alleged in support of the nullity of the sale is
the fact that it was made in Cebu, the properties sold being situated
in the Province of Surigao. This court is of the opinion that this
irregularity is sufficient to render the sale null and void.

In this jurisdiction the law is silent
as to the place where the sale of the properties attached by virtue of
a writ of execution should be had. However, the fact that the sale
thereof in another province is not expressly authorized by law is
sufficient to make the above cited doctrine applicable. But it may be
stated as an inference that these sales must be had in the province
where the properties are situated. Said sales must be made by the
sheriff. The sheriff is appointed for each province which defines his
territorial jurisdiction. It is clear that the sheriff of a certain
province cannot act as such in another province. Therefore, it seems
clear that the sale of real property must be had in the same province
where it is situated for it must be made by the sheriff appointed for
said province. In this case, Labita acted as sheriff of the Province of
Surigao in lieu of the latter who could not act as such, being the
execution debtor. In the same manner that the sheriff of Surigao cannot
sell in Cebu properties located in the Province of Surigao, Labita,
acting in lieu of the sheriff of Surigao, could not sell the properties
in question in Cebu.

In addition to this, the reason for requiring that the sale of real
properties by virtue of a writ of execution must be had in the same
province where they are situated, is clear. The purpose of the
requirement that these sales be made at public auction is to obtain the
best price. When said sales are made in another province, more
particularly when, as in this case, they take place in a distant
island, this purpose is defeated. The higher or lower price obtained
depends upon the greater or less demand therefor as a result of greater
or less interest in acquiring the properties. It is obvious that in
Cebu there can be no greater interest in acquiring real properties
located in Surigao than in Surigao. On the other hand, those in Surigao
who might have been interested in acquiring these properties, would
have to make a trip to Cebu and this might have dissuaded them from
bidding at the sale.

Although, as indicated, the foregoing is sufficient to render the
sale of the properties in question to the plaintiff null and void,
there is furthermore another irregularity in the procedure followed by
Labita which may produce the same effect. Copies of the notice of sale
have not been posted anywhere in the municipality of Surigao. An
attempt was made to prove that copies of this notice were sent to the
municipal president of Surigao for posting at public places within said
municipality. However, even granting that this is true, it is a fact
that this notice has not been posted anywhere in Surigao as required by
law.

Due to these irregularities the properties in question valued at
P25,000, more or less, were sold to the plaintiff for only P2,300, for
lack of another higher bidder. This great difference between the value
of the properties and the price obtained! at the sale constitutes an
injustice to the defendant, which the law is precisely trying to avoid
by prescribing the procedure to be followed in sales by virtue of a
writ of execution of a judgment.

The other question raised in this case is that the properties sold
to the plaintiff and described in its complaint belonged not
exclusively to the defendant Pedro Coleto but also to the intestate
estate of his deceased wife Pancracia Parrucho, pro indiviso.
In this sense it is claimed that the sale is also null and void as to
one-half of the properties sold. This claim is founded. The properties
belong to the conjugal partnership of the, spouses Pedro Coleto and
Pancracia Parrucho. Both spouses begot children during their marriage.
Pedro Coleto’s indebtedness to the plaintiff, for the payment of which
the proDerties were sold, was contracted after the death of his wife
Pancracia Parrucho whose intestate proceedings have been instituted and
are pending, and whose estate is intervenor in this case. Pancracia
Parrucho’s death dissolved the conjugal partnership and thenceforth the
personal indebtedness contracted by Pedro Coleto should not be imputed
to it.

The appealed judgment declares the auction sale of the properties
in question by Mamerto Labita null and void and declares furthermore
that said properties belong pro indiviso to the defendant Pedro Coleto and the intestate estate of his deceased wife Pancratia Parrucho.

For the foregoing considerations, the judgment appealed from is affirmed, with costs against the appellant So ordered.

Street, Abad Santos, Hull, and Vickern, JJ., concur.