MARIANO R. LACSON, PLAINTIFF AND APPELLEE, VS. GIL M. MONTILLA, EX-PROVINCIAL SHERIFF OF OCCIDENTAL NEGROS, ISIDORO ESPARES, EX-DEPUTY PROVINCIAL SHERIFF OF OCCIDENTAL NEGROS, A…

The
defendant, Magdalena Mecho Vda. de Diez, appeals to this court from the
judgment rendered by the Court of First Instance of Occidental Negros,
the dispositive part of which is as follows:

“Wherefore,
judgment is rendered ordering the defendant Magdalena Mecho Vda. de
Diez to pay to the plaintiff the sum of P1,500, with the legal interest
thereon from January 8, 1925, until fully paid, plus the costs,
reserving to said defendant the right to take the steps which she deems
necessary and appropriate for the recovery from Homobono Tupas,
defendant in civil case No. 3152, of the entire amount she has to pay
to the plaintiff by virtue of this decision. It is so ordered.”

In support of her appeal, the appellant assigns the following alleged
errors as committed by the court a quo in its judgment in question, to
wit:

“1. The lower court erred in holding
the defendant responsible for warranty in eviction and in not declaring
that the person liable therefor is Homobono Tupas.

“2. The
lower court erred in not dismissing the complaint and in applying
section 470 of the Code of Civil Procedure, in this case, the plaintiff
not being a purchaser in good faith.

“3. The lower court
erred in holding that the plaintiff’s own fault and negligence in
failing to pay the fees for filing the appeal in case No. 3315, thereby
causing the appeal to be declared abandoned, is not a bar to his action.

“4. The lower court erred in ordering the defendant-appellant to pay
the sum of P1,500 claimed in the complaint and in not absolving her
therefrom.

“5. The lower court erred in overruling the
demurrer filed by the defendant-appellant against the amended complaint
of the plaintiff-appellee.

“6. The lower court erred in denying the new trial of the case asked for by the defendant.”

Being a question of procedural law, this court shall first pass upon
that raised in the fifth assignment of alleged error, consisting in
that the court a quo erred in overruling the demurrer filed by the
defendant-appellant against the amended complaint.

On July
25, 1924, Ramon Diez filed a complaint against Homobono Tupas in civil
case No. 3152 of the Court of First Instance of Occidental Negros for
the recovery of the sum of P5,000, with the legal interest thereon from
February 22, 1921, until fully paid, plus the costs. Upon petition of
said plaintiff, a writ of preliminary attachment was issued, by virtue
of which properties belonging to said defendant Homobono Tupas were
attached, among them being lot No. 492 of the cadastre of Cadiz,
Occidental Negros. The case having been decided in favor of the
plaintiff, Ramon Diez, and the judgment having become final, the
corresponding writ of execution was issued. Pending the auction sale of
the properties attached by virtue of said writ, Braulio Tupas filed a
third party claim of ownership over said lot No. 492. To maintain the
attachment on said lot in effect, the execution creditor, Ramon Diez,
filed the corresponding bond with Pedro Katalbas and Buenaventura
Rodriguez as his sureties. In the sale at public auction of said lot
No. 492, the herein plaintiff-appellee Mariano R. Lacson was the only
bidder for the sum of P1,500.

On February 5, 1925, Braulio
Tupas filed a complaint in the Court of First Instance of Occidental
Negros against Ramon Diez, Gil M. Montilla, as provincial sheriff of
Occidental Negros, Pedro R. Katalbas, Buenaventura Rodriguez and
Mariano R. Lacson (civil case No. 3315) for the annulment of the sale
at public auction of lot No. 492 in favor of said Mariano R. Lacson.
Judgment was rendered in favor of said plaintiff Braulio Tupas on May
11, 1926. As this court had dismissed the appeal taken by the defendant
Mariano R. Lacson and a writ of possession having been issued, Mariano
R. Lacson turned over the possession of lot No. 492 to Braulio Tupas,
the plaintiff in said case.

On October 29, 1929, Mariano R.
Lacson filed a motion in case No. 3152, wherein the sale at public
auction of said lot No. 492 had been ordered, praying the court to
order the refund to him of the P1,500 which he had paid to the sheriff
for the above-stated lot No. 492. On November 16, 1929, the court
issued an order overruling said motion and indicating that a separate
action should be filed.

Ramon Diez having died, his widow,
Magdalena Mecho, was appointed by the Court of First Instance of Iloilo
administratrix of the estate left by her deceased husband on June 6,
1931 (Exhibit 7).

On the same date, June 6, 1931, the
commissioners on claims and appraisal were appointed, and on the 9th of
said month and year, they took their oath of office and entered upon
the discharge thereof. On the 16th of said month and year, they
published the notices for the filing of claims against the intestate
estate of Ramon Diez, in accordance with law. On December 16, 1931,
they submitted their report to the court with only one claim for P500
filed by Tomas Serra, which was approved and recommended for payment
(Exhibit 7 Annex).

Pursuant to what had been indicated in
the order of November 16, 1929, the purchaser Mariano R. Lacson filed
the complaint, which gave rise to this suit, on September 14, 1932,
against Gil M. Montilla et al. Said complaint was amended on March 16,
1933, by including therein as party defendant Magdalena Mecho Vda. de
Diez, in her capacities as surviving spouse, heiress of Ramon Diez and
administratrix of the estate left by said deceased.

It will
be seen from the foregoing that Ramon Diez died between November 16,
1929, the date on which the Court of First Instance of Occidental
Negros denied the motion of the plaintiff-appellee Mariano R. Lacson,
seeking for the refund of the sum of P1,600 paid by him for lot No. 492
at public auction, and September 14, 1932, on which this case was
instituted. Although the intestate proceedings of Ramon Diez were had
in the Province of Iloilo and, therefore, the publication of the
notices of the committee to the creditors was made in said province, as
required by section 687 of the Code of Civil Procedure, Mariano R.
Lacson was authorized by section 690 of the same Code to file his claim
before the final settlement of the intestate estate if the committee
had failed to give the corresponding notice, which is equivalent to the
nonpublication of said notice in another province.

Furthermore, according to paragraph 14 of the amended complaint, the
plaintiff Mariano R. Lacson had repeatedly required the defendants to
pay said sum of P1,500 but they always refused to do so. This repeated
demand for payment made by the plaintiff Mariano R. Lacson must have
taken place from the time the court indicated in its order of November
16, 1929, that his claim should be determined by means of a separate
action and, therefore, he must have made the demand to Ramon Diez, in
his lifetime, and to his widow, the herein defendant-appellant
Magdalena Mecho, after his death. The plaintiff-appellee, Mariano R.
Lacson, therefore, must have had knowledge of the death of Ramon Diez.

It does not appear that the intestate proceedings of the deceased Ramon
Diez have been finally settled. However, it is to be supposed that such
is now the case inasmuch as the report of the committee was submitted
on December 16, 1931, and the complaint has been filed against the
widow of Ramon Diez, Magdalena Mecho, as heiress of her deceased
husband. Inasmuch as the plaintiff Mariano R. Lacson failed to take the
steps prescribed by said section 690, he has lost the right to enforce
his claim against the intestate estate of said deceased Ramon Diez, in
accordance with the provisions of section 695 of the Code of Civil
Procedure. But even if the intestate proceedings of the deceased Ramon
Diez had not been finally settled, neither would the plaintiff be
entitled to bring the present action for the recovery of the sum in
question from the widow of said deceased, either as heiress or as
administratrix of the estate, left by her husband, because, as his
claim consists in the recovery of a certain sum of money, it is not
among those that survive after the death of the debtor, pursuant to the
provisions of section 703 of said Code of Civil Procedure.
Consequently, it should be filed before the committee on claims and
appraisal, in accordance with the provisions of section 686 of said
Code.

Therefore, the court a quo erred in
overruling the demurrer to the amended complaint, interposed by the
defendant-appellant Magdalena Mecho, widow of Ramon Diez.

Having arrived at this conclusion, it becomes unnecessary to pass upon the other assignments of alleged error.

In view of all the foregoing considerations, this court is of the
opinion and so holds that when a purchaser of a piece of land at an
execution sale is deprived thereof in a suit filed by a third party
claimant, said purchaser should file his claim for the refund of the
proceeds of said sale before the committee on claims and appraisal
appointed in the intestate proceedings of the execution creditor, who
died after the annulment of the execution sale in question. If he fails
to do so, he loses the right to enforce his said claim and the action
later brought against the widow of the deceased for such purpose is
without cause, and the demurrer interposed upon said ground should be
sustained.

Wherefore, the judgment appealed from is
reversed, and the case is ordered remanded to the court of its origin,
for further proceedings in accordance with the law, with costs to the
plaintiff. So ordered.

Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.