RESTITUTA, JESUS, ISIDRO AND JOEL, ALL SURNAMED HULGANZA AND MATILDE COLLAMAR, PETITIONERS, VS. THE HONORABLE COURT OF APPEALS AND BASILIA GEMARINO, RESPONDENTS.

This is a petition for review on certiorari seeking to set
aside:  (a) the judgment of reversal of the respondent Court of
Appeals dated November 25, 1980 in CA-G.R. No. 58189-R, entitled Restituta, Isidro, Jesus and Joel all surnamed
Hulganza and Matilde Collamar,
Plaintiffs-Appellees, versus Basilia Gemarino, Defendant-Appellant; and (b)
respondent Court’s resolution dated January 14, 1981 denying
petitioners’ motion for reconsideration of said judgment.  (Original Petition, pp. 51-67, Rollo).

The dispositive portion of
the decision rendered by the lower court reads as follows:

“WHEREFORE, judgment is hereby rendered as follows:

(1)  declaring that the
plaintiffs have the legal right to exercise the right of redemption
over the lot in question;

(2)  ordering the defendant to allow the plaintiffs to
exercise said right of legal redemption at the original purchase price of
P10,000.00, which is the principal obligation, with accumulated interest, at the
legal rate, from the date of the execution of the deed of sale up to and until
the time of repurchase; and

(3)  to pay the
costs.

No award for attorney’s fees is hereby made for failure of the
plaintiffs to adduce evidence on this matter.

SO ORDERED.”
(Record
on Appeal, p. 38).

Aforementioned judgment was reversed by the Court of
Appeals, in above-cited decision dated November 25, 1980, the dispositive portion of which
reads:

“WHEREFORE, the decision appealed from is hereby reversed and
another one entered dismissing the complaint as well as the counterclaim. 
No pronouncement is made as to costs.”

SO ORDERED.”
(Rollo, p. 33, Annex “B” to
Petition).

Petitioners (plaintiff therein filed with the Court of First
Instance of Negros Occidental on May 24, 1973 Civil
Case No. 925 entitled “Hulganza, et al.
v. Gemarino“, to:  (1) recover from private respondent
(defendant therein) the sum of P3,000.00 representing
the unpaid balance of Lot. No.
161, Pls. 256; (2) compel private respondent to allow petitioners to redeem said
parcel of land under Sec. 119 of Commonwealth Act 141 (Public Land Act); and (3)
compel respondent to pay actual damages in the amount of
P2,000.00.

Private respondent, in her answer, denied that said balance
is due from her and countered that the period of legal redemption had already
lapsed.  She added that the instant action was filed as a business
speculation, intended merely to harass her.

The factual background of this case as admitted by both
parties at the pre-trial conducted on May 24, 1973, is as
follows:

Lot 161, Pls. 256, the subject matter of
the present case, is situated in Barrio Mina-otoc,
Calatrava, Negros Occidental and is registered in the name of
spouses Nicomedez Hulganza
and Matilde Collamar covered
by Original Certificate of Title No. P-1672 issued pursuant to a free
patent.  Before Nicomedez Hulganza died leaving as his heirs herein petitioners,
namely:  his wife, Matilde Collamar, Restituto Hulganza, Joel Hulganza, and
Isidro Hulganza, he and his wife Matilde had sold the said property on April 21, 1971 in
favor of the defendant Basilia Gemarino in the amount of P10,000.00 and by virtue of the sale the original title was
cancelled and a new one issued (T-5082) in the name of private respondent Basilia Gemarino. 
Since that date, up to the present private respondent has been in
possession of the property peacefully, openly or publicly, adversely and without
interruption in the concept of owner.

But on April 13, 1972, petitioners filed a complaint in court
seeking to repurchase the property from said respondent under the provision of
Section 119 of Public Land Act 141 as amended.  (Record on Appeal, pp. 25-26, Rollo p. 87).

After pre-trial, the plaintiffs (herein petitioners)
narrowed down their stand by withdrawing their other causes of action but
asserted their rights under their second cause of action, maintaining that they
have the right of legal redemption of the property under Sec. 119 of Act 141
(Public Land Act).  In their memorandum, they agreed not only to
support the foregoing position but also on the fact that they are not obligated
to pay for the improvements introduced by the vendee.

On the other hand defendant (herein private respondent) also
narrowed down her stand by reiterating the grounds alleged as special defenses
in her answer, such as:  (1) that the second cause of action
does not state a cause of action; (2) that the period of redemption had
already lapsed and (3) that should the Court hold that the right of redemption
still exists, she should be paid the cost of improvements introduced on the
land, estimated to be valued at P25,000.00. 
However, she prays that the first ground be treated as a motion to
dismiss.  Private respondent concentrated her memorandum only on
the first ground.  (ibid pp.
28-29).

The trial court in its Order dated February 1, 1974 denied the
above-mentioned first ground which was considered as a motion to dismiss. 
(ibid p. 32).

In its decision dated February 25, 1975, the same court
rendered judgment in favor of the plaintiffs (herein petitioners) declaring that
they have the legal right to exercise the right of redemption and ordering among
other things, the defendant (herein private respondent) to allow the
former to exercise said right at the original purchase price of P10,000.00 with
interest.

As above-stated, on appeal, the Court of Appeals reversed the
decision of the lower court.

Hence, this
petition.

In the resolution of July 6, 1981 of the Second Division of
this Court, respondent was required to comment (Rollo, p. 89). 
Thereafter, counsel for private respondent having failed to file comment
within the required period was required in the resolution of March 3, 1982 to
explain such failure and to file the required comment, both of which were
complied with on May 4, 1982 (Rollo, p. 91)
and on May 20, 1982 (Rollo, p. 94),
respectively.  Petitioners were required to file Reply to aforesaid
comment in the resolution of June 14, 1982 (Rollo, p. 99) which was complied with on August 16,
1982 (Rollo, p. 100).  The Court
gave due course to the petition in the resolution of September 1982 (Rollo, p. 104).  Petitioners filed
their brief on January 3, 1983 (Rollo, p.
110) while private respondent filed her brief on December 1, 1983 and the case
was considered submitted for deliberation on June 20, 1984 (Rollo, p. 143).

There is merit in this petition.

The only issue raised herein, is whether or not it is
necessary that the formal offer to redeem the land in question be accompanied by
a bona fide tender of the redemption price, or the
repurchase price be consigned in Court, within the period of redemption even if
the right is exercised through the filing of a judicial action (Brief for
Petitioners; p. 5; Rollo p.
110).

Respondent Court of Appeals made the following
findings:

“In the instant case it bears repeating that plaintiffs-appellees failed to consign the amount due at the time they
filed the complaint, four days before the lapse of the five-year period, and in
fact it was only on the date of the trial more than three years later that the
lower court was informed of the alleged existence of the money available in the
hands of Isidro Hulganza who was then in
Mindanao.

“This court is, therefore, of the belief that the act of merely
filing the complaint on the part of the plaintiffs-appellees without consignation of the proper amount due
within the period prescribed was an ineffective and incomplete redemption and to
say otherwise would in effect extend the period of redemption beyond that
provided by law.”

(Brief for Petitioners, p. 3, Rollo, p.
110).

This issue has already been laid to rest in successive
decisions of the Supreme Court which ruled:

“The formal offer to redeem, accompanied by a bona fide
tender of the redemption price, within the period of redemption
prescribed by law, is only essential to preserve the right of redemption
for future enforcement beyond such period of redemption and within the period
prescribed for the action by the statute of limitations. 
Where, as in the instant case, the right to redeem is exercised
thru the filing of judicial action within the period of redemption
prescribed by the law, the formal offer to redeem, accompanied by a bona
fide tender of the redemption price, might be proper, but it
is not essential.  The filing of the action itself, within the
period of redemption, is equivalent to a formal offer to redeem. 
Any other construction, particularly with reference to redemption of
homesteads conveyed to third parties, would work hardships on the poor
homesteaders who cannot be expected to know the subtleties of the law, and would
defeat the evident purpose of the Public Land Law — ‘to give the homesteader or
patentee every chance to preserve for himself and his family the
land that the state granted him as a reward for his labor in cleaning and
cultivating it.’ (Avendaño vs. Hao Su
Ton, 47 Off. Gaz., 357; Pascua vs. Talens, 45 Off. Gaz., Supp. No. 9, 413.)” Reveros v.
Abel, et al., 48 Off. Gaz., 5318-5319 [1952];
recently reiterated in Tolentino v.
Court of Appeals, 106 SCRA 526 [1981]).

In view of the foregoing consideration, it appears evident
that the bona fide tender of the redemption price or its
equivalent — consignation of said price in court is not essential
or necessary in the case at bar where the filing of the action itself is
equivalent to a formal offer to redeem.

PREMISES CONSIDERED, the assailed
decision of the Court of Appeals is hereby REVERSED and SET ASIDE and the
decision of the trial court dated February 25,
1975 is hereby AFFIRMED or
REINSTATED.

SO
ORDERED.

Feria, (Chairman), Fernan, Alampay, and
Gutierrez, Jr., JJ., concur.