EUGENIANO MONTECINES, PETITIONER, VS. THE COURT OF FIRST INSTANCE OF LAGUNA AND FORTUNATA ZORRILLA, RESPONDENTS.

This is an original petition filed with this
court for a writ of certiorari to nullify the order alleged to have
been issued by the respondent Court of First Instance of Laguna in
cadastral case No, 20, G. L, R. O. Record No. 738, lot No. 1784,
without or in excess of its jurisdiction. The dispositive part of the
challenged order, dated June 11, 1937, is as follows:

“Por las consideracipnes arriha expuestas, el
Juzgalo encuentra bien fundadas las alegaciones contenidas en la
petition de fecha 27 de octubre de 1936, y por tanto, previa
desestimacion de la oposicion de la representaci6n de Eu geniano
Monteaines, y previa reconsideracion de la orden de fecha 13 de febrero
de 1934;

“Por el presente, se ordena al Registrador de
Titulos de esta Provincia de Laguna que, previo pago de los derechos
correspondientes, cancele el Certificado de Transferencia de Titulo No.
12334 expedido a nombre de Eugeniano Montecines, y, en su lugar, expida
otros 4dos nuevos, uno a favor de dicho Sr. Montecines sobre las
porciones 1784-C y 1784-D-3 del piano Psd-7991, y otro a favor de
Fortunate Zorrilla sobre la portion 1784-D-4 del mismo piano Psd7991.”

It appears from the allegations in the pleadings that on December
2, 1924, a tract of land situated in the municipality of Majayjay,
Province of Laguna, and described in paragraph 2 of the petitioner’s
complaint, was sold with pacto de retro by Alberta Zorrilla
and her husband Fortunato Romera to Eugeniano Montecines, the
petitioner herein. The transaction was effected before the cadastral
survey of that municipality, and there seems to be disagreement as to
the boundaries of the property sold, judging from paragraph 1 of the
answer filed by the respondents. The property alienated appears to be a
part of a more extensive property which was later designated as lot No.
1784 of cadastral case No. 20, G. L. R. O. Record No. 738, of the
municipality of Majayjay, Province of Laguna. Original certificate of
title No. 10343, covering this lot No. 1784, was issued on February 19,
1930 in the name of Alberta Zorrilla, married to Fortunato Romera, and
Fortunata Zorrilla, married to Cirilo Rubin, one-half share each pro indiviso
with the encumbrance of a mortgage for P2,000 in favor of Eugeniano
Montecines. At the instance of Montecines, the character of the
encumbrance annotated was changed from mortgage to sale with the right
to repurchase. The period for repurchase having expired, Montecines
consolidated his ownership and obtained the cancellation of the
original certificate of title No. 10343 and the issuance in his favor
of transfer certificate of title No. 11187.

It should be observed that the sale with pacto de retro to
Eugeniano Montecines was made by Alberta Zorrilla and her husband,
notwithstanding the fact that said lot was the common property of
Alberta and her sister Fortunata Zorrilla, and that the sale was only
of a portion of lot No. 1784. Fortunata Zorrilla who, during all this
time, was residing in the Province of Bukidnon, Mindanao, when informed
of what had transpired regarding their common property, instituted
civil case No. 5853 in the Court of First Instance of Laguna and asked
for the partition of lot No. 1784 between her and her sister, Alberta.
At the trial of the case the stipulation embodied in the following
decision of the court was entered into by the parties assisted by their
respective counsel:

“DECISION

“Llamada a vista esta causa comparecieron el abogado Nazario G. Cruz
por los demandantes y el abogado Aurelio Palileo por la demandada
Alberta Zorrilla, Palileo manifesto al Juzgado lo siguiente:

“Ambas partes, por medio de sus respectivos abogados convienen en que
se dicte decision en este asunto declarando que ia mitad de los lotes
1784-C y 1784-D pertenece en propiedad a la demandante Fortunata
Zorrilla, y que para determinar la mitad de cada uno de estos lotes que
corresponde a este demandante, las partes convienen en que lo haran
privadamente, sin costas.

“Esta manifestation de Palileo ha si do confirmada en Corte abierta por el abogado Cruz.

“Por tanto, el Juzgaclo aprueba este convenio y declara que la
demandante Fortunata Zorrilla es dueiia de una mitad de los lotes
1784-C y 1784-D que se describe en la demanda y tiene derecho a la
posesion de estas dos mitades, tan pronto como las partes lleguen a un
acuerdo sobre la portion que ha de corresponder a cada uno de ellas,
sin costas. Asi se ordena.

“Santa Cruz, Laguna, 20 de noviembre de 1931.1

(Fdo.)	“PEDRO MA. SISON
		“Juez“

Pursuant to the above-quoted order of the
court, a commissioner was appointed who submitted his, report
containing a project of partition. The report of the commissioner was
approved by the court. Accordingly, portions indicated as 1784-C and
1784-D-3 (containing 10,476 square meters) on plan Psd-7991 were
awarded Eugeniano Montecines and that indicated as 1784-D-4 (also
containing 10,476 square meters) on the same plan went to Fortunata
Zorrilla. Thus ended civil case No. 5853 in the Court of First Instance
of Laguna.

Subsequently, however, Eugeniano Montecines and Mateo Zornosa,
the latter also a purchaser of another portion (indicated as 1784-A,
subdivision plan Pcs-378) of lot No. 1784 filed a joint petition for
subdivision in the original cadastral case so that the regadio
portion (1784-A) would correspond to Zornosa and the cocal portion
(1784-B, subdivision plan Pcs-378) to Montecines. This joint petition
was granted by the court on February 13, 1934, notwithstanding the
above-mentioned agreement had by the parties in civil case No. 5853 on
November 20, 1931. This happened because of the failure of Eugeniano
Montecines, who was a party to that civil case, or his lawyer to call
the attention of the court to this fact when Montecines and Zornosa
filed their joint petition in the cadastral ease. In this way,
Eugeniano Montecines succeeded in more than doubling the area of the
property acquired by him from Alberta Zorrilla for, according to the
agreement subscribed to by him and his counsel in open court in civil
case No. 5853, he was to have portions 1784-C and 1784-D-3 containing
only 10,476 square meters whereas under the order of the court of
February 13, 1934 in the cadastral case, he was given portion 1784-B
containing an area of 24,163 square meters.

It was this
order of February 13, 1934 adjudicating to Eugeniano Montecines, the
petitioner, portion 1784-B in the cadastral case that, upon petition of
Fortunata Zorrilla, was reconsidered by the court in its order of June
11, 1937, the dispositive part of which is inserted in the beginning of
this opinion.

The principal point raised by the petitioner
is that the respondent court, in issuing its order of June 11, 1937,
acted without or in excess of jurisdiction. According to him, more than
one year had elapsed from February 13, 1934, when an order was issued
directing the issuance in his favor of transfer certificate of title
No. 12343 for lot No. 1784-B, to June 11, 1937, when the order
complained of canceling said title was issued. It should be observed,
however, that section 38 of Act No. 496 speaks of a decree of
registration entered “If the court after hearing finds that the
applicant or adverse claimant has title as stated in his application or
adverse claim and proper for registration, * * *.” The joint petition
of Mateo Zornosa and Eugeniano Montecines filed in the cadastral case
was neither an application for registration nor an adverse claim; it
was merely a petition to cancel a transfer certificate of title to a
lot already registered, and to issue another certificate in lieu
thereof. The legal provision also makes reference to a hearing which
implies requisite legal notice. The order of the court of February 13,
1934, directing the issuance of a new certificate or certificates in
lieu of another that was cancelled, is riot a decree of registration
contemplated in section 38 of Act No. 496.

Fortunata
Zorrilla, in her motion to set aside the order of February 13, 1934,
did not ask for a right that was to be established for the first time.
That right was already hers by virtue of the decision rendered in civil
case No. 5853 on November 20, 1931, that is to say, long before Zornosa
and Montecines filed a joint petition to undermine that right.
Petitioner Montecines does not seriously contend that he has a rightful
claim to lot No. 1784-B title to which was given him by the court’s
order of February 13, 1934. Indeed, he could not properly put forward
such contention in the face of his express agreement in civil case No.
5853 that he was only entitled to something much less. The order of the
respondent court of June 11, 1937, which he now attacks has really not
worked any injury upon his right. It gave him that to which he was
entitled and which he agreed to receive.

The petition is hereby denied, with costs against the petitioner. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Concepcion, JJ., concur.