ONG CHING PO, YU SIOK LIAN, DAVID ONG AND JIMMY ONG, PETITIONERS, VS. COURT OF APPEALS AND SOLEDAD PARIAN, RESPONDENTS.

This is a petition for review on certiorari under Rule 45
of the Revised Rules of Court of the Decision of the Court of Appeals dated
July 15, 1993, which dismissed the petition for certiorari in CA-G.R. CV Nos.
28391-92.

I

On July 23, 1947, Ong Joi Jong sold a parcel of land located at
Fundidor Street, San Nicolas to private respondent Soledad Parian, the wife of
Ong Yee. The latter, the brother of
petitioner Ong Ching Po, died in January 1983; while petitioner Ong Ching Po
died in October 1986. The said sale was
evidenced by a notarized Deed of Sale written in English. Subsequently, the document was registered
with the Register of Deeds of Manila, which issued Transfer Certificate of
Title No. 9260 dated September 2, 1947 in the name of private respondent.

According to private respondent, she entrusted the administration
of the lot and building to petitioner Ong Ching Po when she and her husband
settled in Iloilo. When her husband
died, she demanded that the lot be vacated because she was going to sell it. Unfortunately, petitioners refused to vacate
the said premises.

On March 19, 1984, private respondent filed a case for unlawful
detainer against petitioner Ong Ching Po before the Metropolitan Trial Court of
Manila, Branch 26. The inferior court
dismissed her case. The dismissal was
affirmed by the Regional Trial Court, Branch 10, Manila. The decision of the Regional Trial Court
was, in turn, affirmed by the Court of Appeals, which dismissed the
petition. The decision of the Court of
Appeals became final and executory.

Petitioners, on the other hand, claimed that on July 23, 1946,
petitioner Ong Ching Po bought the said parcel of land from Ong Joi Jong. The sale was evidenced by a photo copy of a
Deed of Sale written in Chinese with the letter head “Sincere Trading Co.” (Exh.
“B”). An English translation
of said document (Exh. “C”) reads as follows:

Deed of Sale

I, Ong Joi Jong, a party to this Deed of Sale hereby sell in
absolutely (sic) manner a lot located on No. 4 Fundidor Street, San Nicolas an
(sic) area consisting 213 square meters including a one-storey house erected
thereon unto Mr. Ong Ching Po for the sum of P6,000.00 the receipt of which is
hereby acknowledged by me and consequently I have executed and signed the
government registered title (sic) the said lot inclusive of the house erected
thereon, now belong (sic) to Mr. Ong Ching Po unequivocally. And the purpose of this document is to
precisely serve as proof of the sale.

Addendum: I have acceded to
the request of Mr. Ong Ching Po into signing another document in favor of
Soledad Parian (She is the Filipino wife of Ong Yee, brother of Ong Ching Po)
for the purpose of facilitating the issuance of the new title by the City
Register of Deeds and for the reason that he is not yet a Filipino. I certify to the truthfulness of this fact.

Lot Seller: Ong Joi Jong”

(Exhibits for the plaintiff, p. 4)

On December 6, 1983, petitioner Ong Ching Po executed a Deed of
Absolute Sale conveying to his children, petitioners Jimmy and David Ong, the
same property sold by Ong Joi Jong to private respondent in 1947. On December 12 1985, petitioners Ong Ching
Po, Jimmy Ong and David Ong filed an action for reconveyance and damages
against private respondent in the Regional Trial Court, Branch 53, Manila, docketed
as Case No. 85-33962.

On July 26 1986, private respondent filed an action for quieting
of title against petitioners Ong Ching Po and his wife, petitioner Yu Siok
Lian, in the Regional Trial Court, Branch 58, Manila, docketed as Civil Case
No. 86-36818. Upon her motion, the case
was consolidated with Civil Case No. 85-33962. On May 30, 1990, the trial court rendered a decision in favor of private
respondent. On appeal by petitioners to
the Court of Appeals, the said court affirmed the decision of the Regional
Trial Court.

Hence, this petition.

II

According to petitioners, the Court of Appeals erred:

(1) When it gave full faith
and credit to the Deed of Sale (Exh. “A”) in favor of private
respondent, instead of the Deed of Sale (Exh. “B” and its translation,
Exh. “C”) in favor of petitioner Ong Ching Po.

(2) When it concluded that
the acts of petitioners were not acts of ownership; and

(3) When it ruled that no
express nor implied trust existed between petitioners and private respondent
(Rollo, pp. 17-18).

As stated by petitioners themselves, what is in dispute “xxx
is not so much as to which between Exhibit “A” and Exhibit
“B” is more weighty, but whether this document is what it purports to
be (i.e., a deed of conveyance in favor of Soledad Parian [private respondent])
or it was only resorted to or executed as a subterfuge because the real buyer
(Ong Ching Po) was an alien and it was agreed upon between Ong Ching Po and his
brother (Ong Yee, Soledad Parian’s husband) that the land be registered in the
name of Soledad Parian in order to avoid legal complications and to facilitate
registration and transfer and that the said title would be transferred by
Soledad to Ong Ching Po or his successors-in-interest and that she would be
holding the title in trust for him” (Rollo, pp. 19-20).

We cannot go along with the claim that petitioner Ong Ching Po
merely used private respondent as a dummy to have the title over the parcel of
land registered in her name because being an alien he was disqualified to own
real property in the Philippines. To
sustain such an outrageous contention would be giving a high premium to a
violation of our nationalization laws.

Assuming that Exhibit “B”
is in existence and that it was duly executed, still petitioners cannot claim
ownership of the disputed lot by virtue thereof.

Section 5, Article XIII of the 1935 Constitution provides, as
follows:

“Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to individuals, corporations,
or associations qualified to acquire or hold lands of the public domain in the
Philippines.”

Section 14, Article XIV of the 1973 Constitution provides, as
follows:

“Save in cases of hereditary succession, no private land shall
be transferred or conveyed except to individuals, corporations, or associations
qualified to acquire or hold lands in the public domain.”

Section 7, Article XII of the 1987 Constitution provides:

“Save in cases of hereditary succession, no private lands
shall be transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands in the public domain.”

The capacity to acquire private land is made dependent upon the
capacity to acquire or hold lands of the public domain. Private land may be transferred or conveyed
only to individuals or entities “qualified to acquire lands of the public
domain” (II Bernas, The Constitution of the Philippines 439-440 [1988
ed.]).

The 1935 Constitution reserved the right to participate in the
“disposition, exploitation, development and utilization” of all
“lands of the public domain and other natural resources of the
Philippines” for Filipino citizens
or corporations at least sixty percent of the capital of which was owned by Filipinos. Aliens, whether individuals or corporations,
have been disqualified from acquiring public lands; hence, they have also been
disqualified from acquiring private lands.

Petitioner Ong Ching Po was a Chinese citizen; therefore, he was
disqualified from acquiring and owning real property. Assuming that the genuineness and due execution of Exhibit
“B” has been established, the same is null and void, it being contrary to law.

On the other end of the legal spectrum, the deed of sale executed
by Ong Joi Jong in favor of private respondent (Exh. “A”) is a
notarized document.

To remove the mantle of validity bestowed by law on said
document, petitioners claim that private respondent admitted that she did not
pay anything as consideration for the purported sale in her favor. In the same breath, petitioners said that
private respondent implied in her deposition that it was her husband who paid
for the property. It appears,
therefore, that the sale was financed out of conjugal funds and that it was her
husband who handled the transaction for the purchase of the property. Such transaction is a common practice in
Filipino-family affairs.

It is not correct to say that private respondent never took
possession of the property. Under the
law, possession is transferred to the vendee by virtue of the notarized deed of
conveyance. Under Article 1498 of the
Civil Code of the Philippines, “when the sale is made through a public
instrument, the execution thereof shall be equivalent to the delivery of the
object of the contract, if from the deed the contrary does not appear or cannot
clearly be inferred.” If what petitioners meant was that private
respondent never lived in the building constructed on said land, it was because
her family had settled in Iloilo.

There is no document showing the establishment of an express
trust by petitioner Ong Ching Po as trustor and private respondent as
trustee. Not even Exhibit “B”
can be considered as such a document because private respondent, the registered
owner of the property subject of said “deed of sale,” was not a party
thereto. The oral testimony to prove
the existence of the express trust will not suffice. Under Article 1443 of the Civil Code of the Philippines, “No
express trust concerning an immovable or any interest therein may be proved by
parole evidence.”

Undaunted, petitioners argue that if they cannot prove an express
trust in writing, they can prove an implied trust orally. While an implied trust may be proved orally
(Civil Code of the Philippines, Art. 1457), the evidence must be trustworthy
and received by the courts with extreme caution, because such kind of evidence
may be easily fabricated (Salao v. Salao, 70 SCRA 65 [1976]). It cannot be made to rest on vague and
uncertain evidence or on loose, equivocal or indefinite declarations (Cf. De
Leon v. Molo-Peckson, et al., 116 Phil. 1267 [1962]). Petitioners do not claim that Ong Yee was not in a financial
position to acquire the land and to introduce the improvements thereon. On the other hand, Yu Siok Lian, the wife of
petitioner Ong Ching Po, admitted in her testimony in court that Ong Yee was a
stockholder of Lam Sing Corporation and was engaged in business.

The Court of Appeals did not give any credence to Exhibit
“B” and its translation, Exhibit “C”, because these
documents had not been properly authenticated.

Under Section 4, Rule 130 of the Revised Rules of Court:

“Secondary Evidence when Original is lost or destroyed. When the original writing has been lost or
destroyed, or cannot be produced in court, upon proof of its execution and lost
or destruction, or unavailability, its contents may be proved by a copy, or by
a recital of its contents in some authentic document, or by the recollection of
the witnesses.”

Secondary evidence is admissible
when the original documents were actually lost or destroyed. But prior to the introduction of such
secondary evidence, the proponent must establish the former existence of the
document. The correct order of proof is
as follows: existence; execution; loss;
contents. This order may be changed if
necessary in the discretion of the court (De Vera v. Aguilar, 218 SCRA 602
[1993]).

Petitioners failed to adduce evidence as to the genuineness and
due execution of the deed of sale, Exhibit “B”.

The due execution of the document may be established by the
person or persons who executed it; by the person before whom its execution was
acknowledged; or by any person who was present and saw it executed or who after
its execution, saw it and recognized the signatures; or by a person to whom the
parties to the instrument had previously confessed the execution thereof (De
Vera v. Aguilar, supra).

Petitioner Yu Siok Lian testified that she was present when said
document was executed, but the trial court rejected her claim and held:

“If it is true that she was present, why did she not sign said
document, even merely as a witness? Her
oral testimony is easy to concoct or
fabricate. Furthermore, she was
married only on September 6, 1946 to the plaintiff, Ong Ching Po, in Baguio
City where she apparently resided, or after
the deed of sale was executed. The Court does not believe that she was
present during the execution and signing of the deed of sale involved therein,
notwithstanding her pretensions to the contrary” (Decision p. 6, Records p.
414).

As to the contention of petitioners that all the tax receipts,
tax declaration, rental receipts, deed of sale (Exh. “B”) and
transfer certificate of title were in their possession, private respondent
explained that she and her husband entrusted said lot and building to petitioners
when they moved to Iloilo.

As observed by the Court of Appeals:

“We find, however, that these acts, even if true, are not
necessarily reflective of dominion, as even a mere administrator or manager may
lawfully perform them pursuant to his appointment or employment” (Rollo,
p. 10).

It is markworthy that all the tax receipts were in the name of
private respondent and her husband. The
rental receipts were also in the name of her husband.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Padilla, (Chairman), Davide, Jr., Bellosillo, and Kapunan, JJ.,
concur.