ANTONIO DEL ROSARIO AND APOLONIA GALICIA, PETITIONERS AND APPELLEES, VS. EMILIANA SANTOS, OPPOSITOR AND APPELLANT.

This
is an appeal taken by the oppositor Emiliana Santos from the judgment
rendered by the Court of First Instance of Nueva Ecija, the dispositive
part of which reads as follows:

“In view of
the foregoing considerations, the court, finding the motion in question
well founded, orders the cancellation of transfer certificate of title
No. 8211 and the issuance in lieu thereof, upon payment of the
corresponding fees, of another, free of all liens and encumbrances, in
the name of the herein petitioners, the spouses Antonio del Rosario and
Apolonia Galicia, residents of Santo Domingo, Nueva Ecija. So ordered.”

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

“1. The court a quo
erred in ordering the cancellation of transfer certificate of title No.
8211 and the issuance of another in lieu thereof, in the name of the
herein appellees, the spouses Antonio del Rosario and Apolonia Galicia.

“2. The court a quo
likewise erred in not sustaining the opposition of the appellant
Emiliana Santos, based on the ground that said court has no
jurisdiction to order the cancellation of transfer certificate of title
No. 8211 and the issuance of another in lieu thereof in the name of the
appellees, upon a simple motion as that filed in this case.

“3. The court a quo erred in denying the motion for new trial filed by the appellant.”

On March 27, 1934, the Court of First Instance of Nueva Ecija, in civil case No. 4929 entitled Antonio del Rosario et al. vs.
Casiano Cornejo, issued a writ of execution of judgment (Exhibit X) in
favor of the above-named plaintiffs and against the therein defendant,
said writ of execution having been noted at the back of original
certificate of title No. 17379 covering lot No. 669, which had been
issued in the name of the execution debtor Casiano Cornejo, after the
corresponding attachment had been levied on said lot on the same date,
March 27, 1934. The original certificate of title in question was free
of all liens and incumbrances.

After the writ of execution
in question had been filed and registered in the office of the register
of deeds and noted at the back of original certificate of title No.
17379, in favor of the execution creditors Antonio del Rosario and
Apolonia Galicia, an instrument (Exhibit 1), dated January 6, 1934,
whereby said lot No. 669 was sold with pacto de retro by the
registered owner thereof, Casiano Cornejo, to Emiliana Santos, was
ratified before a notary public. Exactly one month after the
registration of the writ of execution of judgment had been made, the
deed of sale with pacto de retro in question (Exhibit 1) was filed and registered in the same office.

By virtue of the above-stated writ of execution, said lot No. 669 was
sold at public auction on May 3, 1934, having been adjudicated to the
execution creditors Antonio del Rosario and Apolonia Galicia, for being
the highest bidders, for the sum of P600 (Exhibit A).

In
said sale at public auction, the oppositor-appellant Emiliana Santos
filed a third party claim of better right. In view of said claim, the
execution creditors filed the corresponding bond in favor of the
provincial sheriff of Nueva Ecija, pursuant to the provisions of
section 451 of Act No. 190, as amended by Act No. 4108, in order that
the sale might be carried out. Said bond was cancelled for failure of
the third party claimant to bring the action required by the
above-cited section to be brought for the enforcement of her claim
within the period of 120 days from the date of the sale.

Inasmuch as the period of one year, within which the property sold at
public auction by virtue of an ordinary execution may be redeemed, in
accordance with the provisions of section 466 of Act No. 190, had
elapsed, and none of the persons mentioned in. section 464 of said Act
had redeemed the lot sold, the provincial sheriff of Nueva Ecija, on
May 3, 1935, issued the final deed of sale (Exhibit B), pursuant to
said section 466.

When the execution creditors and
purchasers, on the same date, May 3, 1935, presented the above-stated
final deed of sale for registration in the office of the register of
deeds of Nueva Ecija, it was discovered that original certificate of
title No. 17379, covering lot No. 669, had already been cancelled, and
that transfer certificate of title No. 8211, which was to be issued in
lieu thereof in favor of Emiliana Santos, was already prepared. In view
of such discovery said transfer certificate of title No. 8211 was never
signed by the register of deeds. The writ of execution, issued in favor
of the execution creditors Antonio del Rosario and Apolonia Galicia,
appears noted at the back of said incomplete transfer certificate of
title No. 8211.

On July 18, 1935, the above-named execution
creditors filed a motion in the cadastral case under consideration,
praying that the register of deeds of Nueva Ecija be ordered to cancel
transfer certificate of title No. 8211 issued in the name of Emiliana
Santos and to issue another in their favor in lieu thereof.

From the foregoing facts, it appears that when the deed of sale with pacto de retro,
executed by Casiano Cornejo in favor of Emiliana Santos relative to lot
No. 669 described in the original certificate of title No. 17379, was
filed and registered in the office of the register of deeds of Nueva
Ecija and noted at the back of the original certificate of title on
April 27, 1934, the writ of execution, issued in favor of the
petitioners and appellees Antonio del Rosario and Apolonia Galicia, was
already filed and registered in said office and noted at the back of
the same original certificate of title, from March 27,1934, that is, a
month prior thereto.

These facts are identical with those in the case of Worcester vs.
Ocampo and Ocampo (34 Phil., 646), wherein, upon a judgment rendered in
favor of the plaintiff Worcester, a writ of execution was issued by
virtue of which the property of the defendant Martin Ocampo was
attached and said attachment noted at the back of the original
certificate of title issued in the name of said Martin Ocampo. Prior to
the notation of the attachment in execution, the defendant Martin
Ocampo had sold the attached property to his codefendant Gervasio
Ocampo y Reyes, with pacto de retro but said sale had not
been noted at the back of the certificate of title until after the
notation of said attachment. The property was later sold at public
auction, having been purchased by the plaintiff Worcester, who caused
said sale to be noted, as it was in fact noted, at the back of the
original certificate of title. As the right of redemption had not been
exercised within the period fixed by law, the sheriff issued the final
certificate of sale in favor of said Worcester, who sought the
inscription of his title in accordance with the Torrens system.
Gervasio Ocampo y Reyes opposed the petition, alleging as his ground
the fact that he was the owner of the land by virtue of the sale with pacto de retro made in his favor. This court, in deciding said case, said:

“By virtue of the provisions of sections 50 and 51 of Act No. 496, that by reason of the fact that the said pacto de retracto
had not been recorded, filed or entered fn the office of the register
of deeds until after Worcester had secured his Hen by attachment, that
Gervasio Ocampo y Reyes acquired his right under said pacto de retracto
subject to the rights of Worcester. The right of Gervasio Ocampo y
Reyes being subject to the rights of Worcester, his right can not be
enforced against the land until the rights of Worcester have been fully
satisfied.”

In this case, when Emiliana Santos acquired by purchase, with pacto de retro,
Casiano Cornejo’s rights of ownership over lot No. 669, of cadastral
case No. 21, G. L. R. O. Record No. 399, described in original
certificate of title No. 17379, which had been issued in favor of said
Casiano Cornejo, said rights of ownership, by virtue of the notation of
the attachment in execution in favor of the petitioners-appellees
Antonio del Rosario and Apolonia Galicia, became subject to the
preferred right which, by virtue of the judgment rendered in their
favor and against Casiano Cornejo, said Antonio del Rosario and
Apolonia Galicia had acquired over the proceeds of the sale of the lot
in question at the public auction that had to be made in compliance
with the writ of execution.

The record shows that transfer
certificate of title No. 8211, which was to be issued in the name of
Emiliana Santos, was not perfected, as the register of deeds of Nueva
Ecija never signed it because the petitioners-appellees presented the
final deed of sale of said lot, issued to them by the provincial
sheriff of Nueva Ecija, and filed a petition for the cancellation of
original certificate of title No. 17379, issued in favor of Casiano
Cornejo, and the issuance of a transfer certificate of title in their
favor. Therefore, there exists no legal and valid transfer certificate
of title over lot No. 669 in favor of Emiliana Santos, to be cancelled.

For the foregoing considerations, the judgment appealed from is
reversed in so far as it orders the cancellation of transfer
certificate of title No. 8211, and it is affirmed in all other
respects, with the costs to the appellant. So ordered.

Avanceña, C. J., Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.