laig vs ca

7/26/2019 laig vs ca

1/8

G.R. No. L-26882 November 21, 1978

ROSARIO VDA. DE LAIG, ROMEO, JOSE, NESTOR a! "ENITO, JR., a## $%rame! LAIG,

m&or$, a$$&$'e! b( Ro$ar&o V!a. !e La&), '*e&r G%ar!&a,Ad Litem, petitioners,

vs.

+ORT O AEALS, +ARMEN VERSO, ETRE GALERO, T/E REGISTER O DEEDS O

+AMARINES NORTE, T/E DIRE+TOR O LANDS, AND T/E SE+RETAR0 O

AGRI+LTRE AND NATRAL RESOR+ES,respondents.

MAASIAR, J.:

A motion dated May 5, 1978 was filed on May 10, 1978 by respondent Carmen Verso thr

!onsel Atty. "edro A. Venida for the re!onsideration of the de!ision proml#ated on April 5,

1978.

$n May %1, 1978, a pe tition was filed by Atty. &ose 'apa( in his behalf and in beha lf of his father,

prayin# for the re!all of said de!ision.

)e*ired to !omment, petitioner herein, the heirs of Atty. +enito 'ai#, thr !onsel, filed on &ne

, 1978 their !omment on respondent Verso-s motion for re!onsideration while their !omment

on the petition of Atty. &ose 'apa( was filed on &ly 5,1978.

$n &ly 1, 1978, a spplementary motion for re!onsideration of respondent Verso was filed by

Atty. &ose 'apa( /Atty. &ose 'apa( si#ned the spplementary motion in this manner

"2)$ A. V342A A32 &$ '$6A2A 'A"A

+y /#d. &ose 'oada 'apa( Consels for respondent Carmen Verso

$n the same day, Atty. &ose 'apa( filed a re:oinder /reply to petitioner-s !omment on his

petition.

$n &ly , 1978, respondent Verso replied to petitioner-s !omment on her motion for

re!onsideration.

"etitioners filed on A#st 7, 1978 their !omment to respondent Verso-s spplementary motion

for re!onsideration and re:oinder to Atty. &ose 'apa(-s re:oinder /reply to their !omment, to

whi!h Atty. 'apa( replied on A#st 1, 1978.

I

)e Motion for re!onsideration of respondent Carmen Verso

4n her motion for re!onsideration, respondent Carmen Verso interposed the followin# #ronds

/1 that the de!ision of this Cort is !ontrary to law, and / that !ertain fa!ts were overloo(ed by

this Cort and were sbstitted by hypotheses, assmptions and !on:e!tres.

1. )espondent Verso !ontends that there is no doble sale in this !ase within the !onte;t of

Arti!le 15, para#raph , of the 3ew Civil Code< be!ase the first sale of the property in

*estion made by "etre =alero in favor of Atty. +enito 'ai# was void ab initio, for bein# in

violation of Arti!le 191, para#raph 5, of the 3ew Civil Code.

>his #rond was not raised by respondents Verso and =alero in the trial !ort. 4t was raised,

tho#h not s*arely, in the Cort of Appeals, whi!h re#arded it as not worthy of !onsideration,

for it is !learly withot merit /pp. %1?%7, +rief for )espondent?Appellee Carmen Verso, CA re!..

4f it were meritorios, be!ase !r!ial or de!isive of the !ase, the Cort of Appeals wold have

devoted the ne!essary time spa!e to dis!ss it.

+t to satisfy respondent Verso, @ shall dis!ss it.

>hat Arti!le provides

Arti!le 191. >he followin# persons !annot a!*ire by pr!hase, even at a

pbli! or :di!ial a!tion, either in person or thro#h the mediation of another

;;; ;;; ;;;

/5 &sti!es, :d#es, prose!tin# attorneys, !ler(s of sperior and inferior

!orts and other offi!ers and employees !onne!ted with the administration

of :sti!e, theproperty and rights in litigationor levied pon an e;e!tion

before the !ort within whose :risdi!tion or territory they e;er!ise their

respe!tive fn!tions< this prohibition includes the act of acquiring by

assignment and shall apply to lawyers, with respect to the property and right

which may be the object of any litigation in which they may take part by

virtue of their profession./mphasis spplied.

At the otset, it mst be noted that only one?half 1B of the property in *estion was sold by"etre =alero to Atty. 'ai#< be!ase the other one?half /D was #iven to him as !ontin#ent

attorney-s fees for his le#al servi!es as !onsel of "etre =alero.

>he first sale of the one?half /D of the property in *estion in favor of Atty. 'ai# was not in

violation of Art. 191, para#raph 5. >he prohibition in said arti!le applies only to a sale or

assi#nment to the lawyer by his !lient of the property whi!h is the sb:e!t of liti#ation. 4n other

words, for the prohibition to operate, the sale or assi#nment of the property mst ta(e

pla!e during the pendencyof the liti#ation involvin# the properly.

4n the !ase at bar, Atty. 'ai# was the lawyer of "etre =alero in Civil Case 3o. 1E?)?1

entitled,"Petre Galero vs. ario !sucta and lorencio #aramoan," for the re!overy of the

property in *estion whi!h was then in the possession of the defendants therein. >he !ase was

de!ided in favor of "etre =alero and be!ame final on Mar!h 7, 198 as alle#ed by the

petitioners, whi!h was not dispted by the respondents. And as stated by the Cort of Appeals in


2/8

its de!ision of 2e!ember , 195 affirmin# the !onvi!tion of "etre =alero in Criminal Case 3o.

5%%, entitled "People of the Philippines vs. Petre Galero"

$enito %. &aig fue el abogado del apelante Petre Galero en cierta causa

civil *e se in!oo drante la o!pa!ion :aponesa, en el ado de "rimera

4nstan!ia de Camarines 3orte y despues se apelo a la #orte de

'pelaciones donde se fallo definitivamente a favor del apelante el a(o

)*+ /Al "eblo de Filipinas, Gerellante?Apelado vs. "etre =alero,

A!sado?Apelante, CA?=.). 3o. 10%?)< mphasis spplied.

4f said de!ision in the !ivil !ase was not yet final when one?half of the property was sold to

+enito 'ai# in 198, then "etre =alero wold have interposed it as a defense in the !riminal

!ase a#ainst him at least insofar as the said one?half was !on!erned.

>hs, when the one?half portion of the property in *estion was sold by "etre =alero to Atty.

'ai# on &ne 1, 198, the de!ision in Civil Case 3o. 1E?)?1 was already final and therefore

the property in *estion was no lon#er sb:e!t of liti#ation. Hen!e Atty. 'ai# was no lon#er

prohibited from byin# the property in *estion be!ase Iattorneys are only prohibited from

byin# their !lients- property which is the subject of litigation" /Araneta vs. >aon, et al., 91 "hil.

78E 195< mphasis spplied.

Conse*ently, the sale havin# ta(en pla!e after the finality of the favorable :d#ment in the said!ivil !ase and not drin# the penden!y of the liti#ation, there was no violation of Arti!le 191,

para#raph 5. Hen!e, the first sale to Atty. 'ai# of the property in *estion is valid.

Frthermore, any *estion on the validity of the sale of the one?half of the property in *estion

has been fore!losed by the final de!ision in Criminal Case 3o. 5%% whi!h pheld the

#enineness and in effe!t the validity of the sale made by "etre =alero in favor of Atty. 'ai#. 4n

the !riminal !ase, the testimony of "etre =alero and his witnesses were not believed by the trial

!ort and the Cort of Appeals by reason of fa!ts and !ir!mstan!es revealed by their

testimonies as well as their e;hibits. For one, the Cort of Appeals noted that from the si#natre

of "etre =alero, there is no indi!ation that he is nlettered. 4t li(ewise noted the in!redibility of

the !laim that Atty. 'ai# a#reed to !olle!t his attorney-s fees from the frits of the !o!ont and

wait for at least seven years instead of a!*irin# the same,

4n said !riminal !ase, the Cort of Appeals stated

'a defense trato de probar, por medio de los testimonios del a!sado y de

s testi#o Cladio Moratalia, de *e di!ho a!sado nn!a vendio al

abo#ado +enito . 'ai# el terreno en !estion. l apelante, en sinteis,

de!laro *e el no firmo nin#n do!mento de venta a favor del abo#ado

+enito . 'ai# sobre el !itado terreno< *e el no !ompare!io ante el notario

pbli!o Manel Moreno< *e el mes de :nio de 198 el firmo n

do!mento, *e es el mismo e;hibit A, en la !asa de Carmen Verso *e,

se#n el abo#ado . 'ai#, era n !ontrato en *e el /apelante se obli#aba

a dar di!ho abo#ado !ierta parti!ipa!ion en los prod!tos de los !o!os y

otras plantas *e lle#e sembrar en el terreno en !estion, !omo pa#o de

los honorarios del !itado abo#ado< y *e al firmar el referido do!mento no

se entero de s !ontenido pesto *e el no sabe leer y no se le habia leido

el mismo.

l testi#o Cladio Moratalia trato de !orrobor la de!lara!ion del apelante y,

entre otras !osas, di:o *e el estvo presente !ando se otor#o n !ontrato

en la !asa de Carmen Verso, entre el apelante y s abo#ado +enito . 'ai#,

en el *e a*el se obli#aba a dar parti!ipa!ion al ltimo de los prod!tos

del terreno en !estion, en !on!epto de honorarios profesionales< *e el

referido !ontrato es el mismo e;hibit a en donde apare!e sr firma !omo

no de los testi#os instrmentales< *e el tambien firmo otro !ontratodelebrado entre el y el apelante, en virtd del !al el traba:aria !omo

apar!ero en el terreno en !estion, donde a di!ho apelante !ierta

parti!ipa!ion de los prod!tos *e peda !ose!har, !yo do!mentos es el

e;hibit F< y *e el no se entero tanto del !ontenido del e;hibit A !omo del

e;hibit F por*e el no sabe leer y di!hos do!mentos no se los habian

leido.

3o estamos !onven!idos de la vera!idad de las de!lara!iones del apelante

y de s testi#o ya men!ionado. ospe!hamos de *e ambos faltaron a la

veredad al afirmar de *e ellos no saben leer y por esto no se enteraron del

!ontenido del do!mento e;hibit A pes notamos *e ss firmas estan

bastante bien he!has y no se pare!en a la de n analfabeto. e#n ellos

dos, en vista de *e el apelante no tenia dinero para pa#ar los honorarios*e le habia re*irido el abo#ado 'ai#, di!ho apelante se !omprometio a

mandar !ltivar s terreno y de los prod!tos de los !o!oteros y otras

plantas *e se siembran en el mismo se pa#arian, palatinamente, di!hos

honorarios del abo#ado 'ai#< y *e este les hio !reer enton!es *e el

do!mento e;hibit A, *e se firmo en la !asa de Carmen Verso, !ontenia el

referido !ontrato. Como ha di!ho my bien el :e senten!iador, esta

de!lara!ion es fantasti!a, pes es in!reible de *e el abo#ado 'ai#,

despes de haber traba:ado por varios aJos por el asnto del apelante, *e

lo habia #anado, hi!iera na proposi!ion tan des!abellada, a saber, de *e

el tendria *e esperar hasta *e los !o!os *e se siembren en el terreno

diesen frtos /nos siete aJos a fin de *e peda !obrar ss honorarios.

"ero an si#endo la misma teroria de la defenda, se ve la mala fe del

apelante, pes antes de poder !mplir !on sspesta obli#a!ion sobre elpa#o de los honorarios de s abo#ado, ya habia vendido s terreno !on el

evidente proposito de defradar a los herederos de este.

'a de!lara!ion del testi#o Cladio Moratalia es an mas in!reible. e#n el,

el mismo dia en *e firmo !omo testi#o en el do!mento ;hibit A, tambien

firmo n !ontrato !on el apelante de traba:ar !omon apar!ero en el terreno

en !estion, !yo !ontrato es el mismo e;hibit F. sta de!lara!ion es

manifiestamente falsa, pesto *e el e;hibit A se otor#o el 1.o de :nio de

198 y el e;hibit F se otor#o el E de di!ho mes, *e es n !ontrato de

apar!eria entre el testi#o y el finado abo#ado 'ai# de !yo !ontrato no tenia

nin#na parti!ipa!ion el apelante.

$tro testi#o de la defense, Arsenio C. Camino de!laro de *e el abo#ado

'ai# le mando ratifi!ar la es!ritra de venta e;hibit A, sin la presen!ia del


3/8

a*i apelante "etre =alero, pero !ando el se fi:o de *e en la !lasla de

ratifi!a!ion apare!e el nombre del mni!ipio de 2aet, el se ne#o a ratifi!arlo

pesto *e s !omision, !omo notario pbli!o, no se e;tendia a di!ho

mni!ipio. sta de!lara!ion !are!e de importan!ia, pes el testi#o di:o *e

el no pdo leer el !erpo del do!mento y ba:o este spesto es in!reible

*e el peda estar se#ro de *e el referido do!mento fese el mismo

e;hibit A.

-estenemos pues que las pruebas de la defensa son insuficientes para

desvirtuar la presuncion legal de que la escritura de venta ehibit ' esgenuina. !sta presuncion esta robustecido por la circunstancia de que

algunos dias despues del otorgamiento de dicha escritura, el finado

abogado &aig celebre contratos con #laudio oratalia /ehibit 0 y

lorencio 1ctavio /eh. 2)0 para que estos dos trabajon como aparceros

suyos en el terreno en cuestion, lo cual demuestra que el citado abogado

compro realsante dicho terreno del aqui apelante y por este tomo posesion

del mismo por medio de sus citados aparceros.

n rela!ion !on la ale#a!ion, en la soli!itd e;hibit 2, de *e el apelante

perdio, drante la o!pa!ion :aponesa, el dpli!ado para el deJo del

!ertifi!ado ori#inal de titlo 3o. 1097, el apelante dio de entender de *e el

hio di!ha ale#a!ion por*e no sabia donde se en!ontraba el !itado titlo.

l de!laro de *e antes de la #erra otor#o na es!ritra de venta a favorde n tal Ma!ario 4so!ta sobre el terreno ob:eto del !itado !ertifi!ado

ori#inal de titlo, pero no se a!erda si el in!lyo este !ertifi!ado !on la

!itada es!ritra !nado la misma fe entre#ada a di!ho Ma!ario 4so!ta.

ste :eto fe no de los adversarios del apelante en la !asa !ivil

referente al terreno en !estion. An admitiendo, !omo !ierta, la

de!lara!ion del apelante de *e el ya no se a!ordo del paradero del

!ertifi!ado de titlo en !estion, sostenemos *e el mismo !ometio na

falsedad al afirmar de *e di!ho !ertifi!ado de titlo le tvo en s poder y lo

perdio drante la o!pa!ion :aponesa.3eniendo en cuenta todas las

circunstancias del caso por lo menos, sabia de que el no tuvo en su poder

el mencionado certificado de titulo, y que al afirmar de que lo habia perdido

durante la ocupacion japonesa lo hi4o, de mala fe, con el proposito de

inducir al ju4gado para que ordene la epedicion de un nuevo duplicadopara el due(o de dicho certificado de titulo, a fin de que el logre su

proposito de poder vender el terreno en cuestion a otra persona,

defraudando de este modo a los herederos del finado $enito %. &aig /pp. ?

7, el "eblo de Filipinas, Gerellante?Apelado vs. "etre =alero, A!sado?

Apelante, CA?=.). 3o. 10%?), 2e!ember , 195< emphasis spplied.

@ith respe!t to the other one?half /1B of the property in *estion, whi!h was #iven to Atty. 'ai#

as his attorney-s fees on a !ontin#ent basis, @ find nothin# wron# in this for the reason that

!ontin#ent fees are re!o#nied in this :risdi!tion /Canon 1% of the Canons of "rofessional

thi!s adopted by the "hilippine +ar Asso!iation in 1917 Appendi; +, )evised )les of Cort,

whi!h !ontin#ent fees may be a portion of the property in liti#ation.

4n the !ase of'lbano vs. 5amos/0 C)A 171 19E7, where the !ontin#ent fees a#reed pon

was one?third /1B% of whatever lands and dama#es mi#ht be re!overed, this Cort said that Ithe

*estion of how Atty. Coloma may re!over her share in the lands awarded to plaintiffs is a !losed

one, and was settled by the Cort of Appeals in its de!ision affirmin# the order of the lower

!ort a quoto the effe!t that the re!overy of s!h share shold be the sb:e!t of a separate

a!tionI /see also Coto 'abor Knion 3'K vs. spinas, 15 C)A 109 19E5< )e!to vs. Harden,

100 "hil. 7 195E< =rey vs. 4nslar 'mber Co., 97 "hil. 8%% 1955< Ma#no vs. Viola and

otto, E1 "hil. 80 19%< Gitoriano and Velas!o vs. Centeno, 59 "hil. EE 19%E< 'tero vs.

sler, 5 "hil. 18 198< Feli!es vs. Madride:os and +anti#i, 51 "hil. 197< Klanday vs.

Manila )ailroad Co., 5 "hil. 50 19%.

. >he se!ond !ontention of the !onsel for respondent Verso that $K) main de!ision wasbased on hypotheses, assmptions and !on:e!tres, finds no spport in the re!ords. >he

alle#ed hypotheses, assmptions and !on:e!tres are dispted by the fa!ts and !ir!mstan!es

delineated in $K) main de!ision from whi!h natral and lo#i!al inferen!es and !on!lsions

were drawn. @ find no !o#ent reason to re!onsider the !hallen#ed findin#s and !on!lsions.

>he isses and ar#ments raised in the spplementary motion for re!onsideration of respondent

Verso filed by Atty. &ose 'apa( are li(ewise withot merit, for they are sbstantially 4denti!al with

the isses and ar#ments raised by respondent Verso in her motion for re!onsideration filed by

Atty. "edro A. Venida.

44

)e "etition of Atty. &ose 'apa( in his behalf and in behalf of his late father, respondent Atty.

+aldomero 'apa(.

A. )e )espondent )e#ister of 2eeds Atty. +aldomero 'apa(.

4n his petition /whi!h is pra!ti!ally a motion for re!onsideration for himself and on behalf of his

father, Atty. +aldomero 'apa(, as defendant )e#ister of 2eeds, Atty. &ose 'apa( !laims that his

father was denied de pro!ess by this Cort.

>his !laim is baseless and respondent Atty. +aldomero M. 'apa( has no personality to file even

a motion for re!onsideration< be!ase he was de!lared in defalt for failre to file his answer in

the trial !ort aside from the other fa!ts and !ir!mstan!es appearin# of re!ord.

"etitioner )osario Vda. de 'ai#, to#ether with her minor !hildren, filed the ori#inal !omplaint on

April 1%, 195 before the Cort of First 4nstan!e of Camarines 3orte a#ainst respondents

Carmen Verso, "etre =alero, the5egister of 6eeds of Camarines 3orte, the 2ire!tor of 'ands

and the e!retary of A#ri!ltre and 3atral )esor!es for the annlment of the sale in favor of

Carmen Verso, or in the alternative, for the re!onveyan!e of the property in *estion to the

petitioners.

>his ori#inal !omplaint in!lded as defendant the )e#ister of 2eeds of Camarines 3orte in the

title of the !ase and in para#raph 44 thereof withot spe!ifyin# his name /pp. ?%, )$A, pp. 7E?

77, re!.< bt para#raphs L44, L444 and LV of the same ori#inal !omplaint referred to him I... as

defendant 5egister of 6eeds $.. &apak...I /pp. 7?9, )$A, pp. 79?80, re!.< mphasis spplied.


4/8

4n the amended !omplaint of 3ovember 8, 1958, the name +aldomero 'apa( was already

spe!ifi!ally stated in para#raph 44 /pp. E%?E, )$A< p. 107, re!. and in para#raphs L44, L444 and

LV /pp. E7?E9, )$A, pp. 109?110, re!., whi!h are re?estatements of the same para#raphs L44,

L444 and LV of the ori#inal !omplaint.

+oth the ori#inal and amended !omplaints impted mali!e and !onspira!y to Atty. +aldomero

'apa(, assisted by his son, Atty. &ose '. 'apa(, in fa!ilitatin# the issan!e of a se!ond owner-s

dpli!ate !opy of Certifi!ate of >itle 3o. 1097 in favor of respondent "etre =alero and in

!an!ellin# $ri#inal Certifi!ate of >itle 3o. 1097 and issin# in lie thereof >ransfer Certifi!ate of

>itle 3o. >?1055 in favor of respondent Carmen Verso. >his parti!ipation of Atty. +aldomero'apa( is !learly alle#ed in both the ori#inal and amended !omplaints whi!h prayed, amon#

others, I... >hat the defendants be ordered to pay :ointly and severally, the herein plaintiffs the

sm of "5,000.00 as li*idated dama#es and attorney-s fees ... and the !osts of this sit ...I /pp.

10, 70?71, )$A< pp . 80, 110?111, re!.< mphasis spplied.

>he ori#inal !omplaint alle#es

44

>hat defendant Carmen Verso is of le#al a#e, sin#le, and a resident of, and

with postal address at, 'abo, Camarines 3orte, the pla!e where she may be

served with smmons< defendant "etre =alero is li(ewise of a#e, married,and a resident of and with postal address at 'abo, Camarines 3orte, the

pla!e where he may be served with smmons< defendant the 5egister of

6eeds may be served with summons in 6aet, #amarines 7orte8 defendant,

the 2ire!tor of 'ands may be served with smmons in Manila< defendant

the e!retary of A#ri!ltre and 3atral )esor!es may also be served with

smmons in Manila, "hilippineshat at the time defendant Petre Galero, by means of false representations,

applied for the issuance of another 1wner9s 6uplicate #ertificate of 3itle

of H$M>A2 "A>3> 3$. 1097, before this Honorable

Cort, defendant 5egister of 6eeds $.. &apak, a relative of 'tty. :ose &.

&apak, officially knew that the land in question was purchased by the late

$enito %. &aig on :une ), )*+8 yet notwithstanding such official knowledge,

in order to facilitate and help his co2defendants Petre Galero and #armen

;erso, assisted by said 'tty. :ose &. &apak, in consummating the unlawful

sale, refrained from objecting to the issuance of another 1wner9s 6uplicate

#ertificate of 3itle of , which it was his

duty to dohatnotwithstanding his official knowledge that the property in question

was already sold to the deceased $enito %. &aig, when the sale which he,

by acts and omission facilitated in favor of defendant #armen ;erso was

presented for registration, the defendant 5egister of 6eeds r. $.. &apak,

caused, knowingly, the cancellation of 1riginal #ertificate of 3itle 7o. )=*>

/hat the sale of the property in *estion by defendant "etre =alero in favor

of his !o?defendant Carmen Verso, the re!ommendation by !o?defendant

2ire!tor of 'ands and its sbse*ent approval by the !o?defendant

e!retary of A#ri!ltre and 3atral )esor!es, and the !an!ellation of

$ri#inal Certifi!ate of >itle 3o. 1097 and the issan!e in lie thereof

>ransfer Certifi!ate of >itle 3o. >?1055 by the defendant )e#ister of 2eeds

+.M. 'apa( in favor of defendant Carmen Verso are fradlent and nlawfl

and shold be de!lared nll and void /pp. ?9, )$A< pp. 7E?80, re!., itali!s

spplied.

>he above alle#ations were reiterated in the amended !omplaint whi!h spe!ifi!ally mentioned

Atty. +aldomero 'apa( by name as the defendant )e#ister of 2eeds in para#raph 44 thereof, to

wit I... defendant $aldomero &apak, as 5egister of 6eeds may be served with summons in

6aet, #amarines 7orte ...I /pp. E%?E, )$A, p. 107, re!.< mphasis spplied as well as in

para#raphs L44, L444 and LV /pp. E7?E9, )$A< pp. 109?110, re!., whi!h restated the same

para#raphs L44, L444 and LV of the ori#inal !omplaint.

>hese imptations of mali!e and !onspira!y re#ardin# the parti!ipation of Atty. +aldomero 'apa(

as )e#ister of 2eeds /and of his son, Atty. &ose '. 'apa( were (nown to Atty. +aldomero M.

'apa( and Atty. &ose '. 'apa(. As !onsel of Carmen Verso, Atty. &ose '. 'apa( filed an answer

in her behalf. Copies of both ori#inal and amended !omplaints were li(ewise sent to his father,

Atty. +aldomero 'apa(, who failed to file his answer and was a!!ordin#ly de!lared in defalt bythe lower !ort /pp. 7?7, )$A, pp . 111?11, re!..

in!e Atty. +aldomero 'apa( (new of the imptations a#ainst him in both ori#inal and amended

!omplaints as he was served a !opy of the !omplaint to#ether with the smmons, he shold

have answered the !omplaint. $r, at least, his son, Atty. &ose 'apa(, who (new that his father

was made !o?defendant in the !ase, shold have li(ewise filed an answer in behalf of his father.

4f Atty. &ose 'apa( !old defend Carmen Verso who is not related to him, then there is no reason

why he !old not defend his father, who was alle#ed to have !onnived with "etre =alero and

Carmen Verso, with his a!tive assistan!e. Atty. &ose 'apa( did not even file a motion to set

aside the order of defalt a#ainst his father, so that he !old file an answer in his behalf. !h

failre or omission on the part of father and son, both lawyers, !an only si#nify their waiver of

their ri#ht to de pro!ess.


5/8

4t !annot therefore be !laimed that there was a denial of de pro!ess with respe!t to +aldomero

'apa(, be!ase he had all the opportnity to defend himself. He was smmoned and was

served a !opy of the !omplaint, bt he failed to file an answer and therefore he was de!lared in

defalt on &ne 15, 1959 /p. 7%, )$A< p. 11, re!.. ven after he was de!lared in defalt, he

failed to see( the appropriate remedy to set aside the order of defalt. And even his son, Atty.

&ose 'apa(, who also had all the opportnity to defend him, failed to do so. He waited ntil his

father was fond liable by this Cort before filin# his instant petition on May %1, 1978 over

years from the filin# of the ori#inal !omplaint on April 1%, 195 and the filin# of the answer of

Carmen Verso on May %, 195 as well as over 18 years from the time his father was de!lared in

defalt on &ne 15, 1959.

+efore his father was de!lared in defalt on &ne 15, 1959, he and his father had over five years

to file his answer to the ori#inal !omplaint whi!h was filed on April 1%, 195, or over E months

from the filin# on 3ovember 8, 1958 of the amended !omplaint.

Havin# been de!lared in defalt, +aldomero 'apa( lost his standin# in !ort. For @ have

already rled that Ia defendant in defalt loses his standin# in !ort and !onse*ently !annot

appear in !ort, add!e eviden!e, and be heard, and is not entitled to noti!e. >he only e;!eption

is when the defendant in defalt files a motion to set aside the order of defalt on the #ronds

provided for in e!tion %, )le 18, -in whi!h event he is entitled to noti!e of all frther

pro!eedin#s re#ardless of whether the order of defalt is set aside or not- I /)epbli! vs. Cort

of First 4nstan!e of Manila, E8 C)A %1 1975< >an vs. 2imay#a, 5 C)A 71 19E< 'im

>o!o vs. =o Fay, 80 "hil. 1EE 198< e!tion 9, )le 1%, )les of Cort.

3ot havin# filed a motion to set aside the order of defalt, +aldomero 'apa( never re#ained his

standin# in !ort and therefore he is no lon#er entitled to appear in !ort< nor to be heard< nor is

he entitled to noti!e of the pro!eedin#s. 4f he is not entitled to noti!e of the pro!eedin#s in the

!ase and to be heard in the trial !ort he is also not entitled to noti!e of the pro!eedin#s nor to

be heard on appeal as appellee. >hs, he wold still be in the same position on appeal as where

he was in the lower !ort. He wold have no better ri#ht than what he had in the !ort below.

Conse*ently, he !annot !laim la!( of de pro!ess. As held by this Cort in the !ase of &im

3oco vs. Go ayA

>he reason why the defaltin# defendant is not entitled to noti!e is be!ase

it wold be seless or of no prpose to do so, sin!e the defendant !annot

appear and be heard in the sit in anyway. 4f the defendant in defalt has

the ri#ht to appear and be heard on appeal, there wold be no reason why

he shold not be #iven noti!e of the pro!eedin#s in order that he may have

e;er!ised said ri#ht as appellant or appellee. >here is absoltely no reason

for denyin# a defalted defendant the ri#ht to be heard before, and #rantin#

him that ri#ht after, the :d#ment on the merits. 4f he is ot of or has no

standin# in !ort before :d#ment on the merits, he !annot be !onsidered

as no lon#er in defalt after said :d#ment.'nd if he #an not appear and be

heard in the suit he can not ... appear and be heard as appellee, because

an appeal is a continuation of the same case or suit commenced in the

lower court. 3he jurisdiction of the latter is, by appeal, transferred to the

appellate court. 3he rendition of the judgment by the trial court and the

appeal therefrom by the adverse party does not confer upon any of them

more right than he had before the judgment in so far as their standing in

court or intervention in the proceeding is concerned /80 "hil. 1EE, 1E9?170he !laim of Atty. &ose '. 'apa( that the de!ision of the Cort of Appeals affirmin# the de!ision

of the Cort of First 4nstan!e, parti!larly that portion absolvin# the late Atty. +aldomero M.

'apa( from any liability, be!ame final by reason of the fa!t that the petition filed by petitioner

'ai# in the preme Cort did not in!lde Atty. +aldomero M. 'apa( is !learly nfonded. >he

!aption of the petition !learly in!ldes Atty. +aldomero M. 'apa( be!ase he is in!lded in the

term Iet als.I >he !aption reads

)osario Vda, de 'ai# et als., "etitioners,

N verss N =.). 3o. '?E88

Cort of Appeals and Carmen Verso, et als., )espondents.

And the alle#ations in the body of the petition for review before the preme Cort !learly shows

that the pronon!ement of the Cort of First 4nstan!e as affirmed by the Cort of Appeals that

Atty. +aldomero M. 'apa( has no liability was bein# *estioned in the petition, ths

'astly, we !ontend and so respe!tflly sbmit that the Cort of

Appeals erred in not finding 'tty. $aldomero &apak guilty of maliceandBor

#ross ne#li#en!e in the performan!e of his dties as )e#ister of 2eeds of

Camarines 3orte be!ase ?

/a As )e#ister of 2eeds, he was informed that the par!el of land in

*estion was sold by "etre =alero to Atty. +enito . 'ai# /;hs. , +, +?1,

p. %8, appellants- brief H F$)=$43=, yor petitioners most respe!tflly pray that

a writ of !ertiorari be issed dire!tin# the respondent Cort of Appeals to

!ertify and send the re!ords of the !ase to this Honorable >ribnal for

review


7/8

3atral )esor!es, assisted by attorney and notary public :ose & &apak,

she registered the deed of sale eecuted in her favor by defendant "etre

=alero on or abot the latter part of 195hat at the time defendant Petre Galero, by means of false representations,

applied for the issuance of another 1wner9s 6uplicate #ertificate of 3itle of

H$M>A2 "A>3> 3$. 1097, before this Honorable Cort, defendant

5egister of 6eeds $.. &apak, a relative of 'tty, :ose &. &apak, officially

knew that the land in question was purchased by the late $enito %. &aig on

:une ), )*+8 yet notwithstanding such official knowledge, in order to

facilitate and help his defendants Petre Galero and #armen ;erso, assisted

by said 'tty. :ose &. &apak, in consummating the unlawful sale, refrained

from objecting to the issuance of another 1wner9s 6uplicate #ertificate of

3itle of , which it was his duty to do8 ...

/pp. ?7, E5?E8, )$A< pp. 77?79, 108? 109, re!.< mphasis spplied.

@hen he filed on May %, 195 the answer of Verso, he shold have immediately ta(en the

ne!essary a!tion to prote!t himself instead of remainin# silent. His ina!tion and silen!e !ast

dobt on his pretended inno!en!e with respe!t to the a!tations of =alero, Verso and his father,

Atty. +aldomero M. 'apa(, the then )e#ister of 2eeds. He is a lawyer, not a layman.

>he followin# ndispted fa!ts and !ir!mstan!es on re!ord show N made more !onvin!in# by

his silen!e and ina!tion and failre to defend his own father and himself in the trial and on

appeal N the !onnivan!e of Atty. &ose '. 'apa( with his father, Atty. +aldomero M. 'apa(,

Carmen Verso and "etre =alero.

1. Atty. &ose '. 'apa( assisted "etre =alero in his petition for the issan!e of a se!ond dpli!ate

owner-s !ertifi!ate of title, falsely de!larin# nder oath as #rond thereof that I... the $wner-s

2pli!ate Certifi!ate of >itle ... was lost in his possession drin# the war ...I +e!ase of this

misrepresentation ? aided by the silen!e of Atty. +aldomero M. 'apa(, who had noti!e of the

petition and had (nowled#e of the prior sale between "etre =alero and Carmen Verso N owner-s

!ertifi!ate of title /par. V4, pp. , E5, )$A< pp. 77, 108, re!..

. >hereafter, Atty. &ose '. 'apa( prepared and notaried the deed of sale for the pri!e of only

"E00.00 of 1.999 he!tares land with !o!ont trees !overed by the aforesaid title between

"etre =alero and Carmen Verso /par. V444, pp. 5, EE, )$A< pp. 78,108, re!..

%. >hen, Atty. &ose '. 'apa( helped Carmen Verso in see(in# the approval of the e!retary of

A#ri!ltre and 3atral )esor!es of the said sale /par. 4L, pp. 5, EE, )$A< pp. 78,108, re!. as

obviosly shown by the fa!t that in her letter sent to the e!retary for that prpose, she #ave her

address as I!Bo Atty. &ose '. 'apa(, 2aet, Camarines 3orteI. /pp. , 107, Folder of ;hibits,

Civil Case 3o. 577.

. After the approval, Atty. &ose '. 'apa( aided Carmen Verso and re#istered the *estionable

2eed of ale with the then in!mbent )e#ister of 2eeds Atty. +aldomero M. 'apa(, his father,who allowed it. /par. L4, pp. E, E7 )$A< pp. 78, 109, re!.,

>he presen!e and parti!ipation of Atty. &ose '. 'apa( in all the aforesaid pro!eedin#s and

transa!tions that finally led to the fradlent issan!e of >ransfer Certifi!ate of >itle 3o. >?1055

in favor of respondent Carmen Verso and to the pre:di!e of the heirs of the late +enito . 'ai#,

herein petitioners, over the said land of abot he!tares with !o!ont trees point to the

!ollsion aforestated. Atty. +aldomero M. 'apa(, who offi!ially (new of the prior sale between

"etre =alero and Carmen Verso, shold have rea!ted a!!ordin#ly as )e#ister of 2eeds and as

a lawyer to prote!t the inte#rity of torrens title as well as his own inte#rity and that of his offi!e.

His oath as a member of the "hilippine +ar re*ired him to Ido no falsehood, nor !onsent to the

doin# of any in !ort ; ;I nor I... wittin#ly or willin#ly promote or se any #rondless, false or

nlawfl sit, nor #ive aid nor !onsent to the same ...I /e!. %, )le 1%8, )les of Cort. 4f therewere no !ollsion, then Atty. +aldomero M. 'apa( shold have frstrated the fradlent s!heme

with respe!t to the said land in the for !lear opportnities he had First, in the petition for

issan!e of a se!ond owner-s dpli!ate !ertifi!ate of title< e!ond, in the appli!ation for

re#istration of the fradlent deed of sale whi!h was filed in his own offi!e< >hird, in the

appli!ation for the !an!ellation of $ri#inal Certifi!ate of >itle 3o. 1097 in the name of "etre

=alero< and Forth, the issan!e in lie thereof of transfer !ertifi!ate of title over the said par!el

of almost he!tares with !o!ont trees in the name of Carmen Verso.

Moreover, the silen!e and ina!tion of Atty. +aldomero M. 'apa( while all these thin#s were

ta(in# pla!e fortify or !on!lsion on their !ollsion< be!ase no well?intentioned lawyer?father

wold permit his lawyer?son to parti!ipate in the aforestated dbios s!heme< if no !onnivan!e

e;isted. At the very least, Atty. +aldomero M. 'apa( shold have informed his son of the prior

sale of "etre =alero to Atty. +enito 'ai# over the same land of !lose to he!tares with !o!onttrees< so that his son, Atty. &ose '. 'apa(, shold not have parti!ipated in that ille#al transa!tion

between "etre =alero and Carmen Verso, who was shown in the main de!ision to have

(nowled#e of the prior sale by "etre =alero to Atty. +enito 'ai#.

5. @ find si#nifi!ant the fa!t that Atty. &ose '. 'apa(, after servin# several months, resi#ned

from his position as !ler( of !ort of the Cort of First 4nstan!e of Camarines 3orte, to a!t as

defense !onsel of "etre =alero in Criminal Case 3o. 5%% for estafa thro#h falsifi!ation of

pbli! do!ment /p. 1, t.s.n. of Crim. Case 3o. 5%%. Atty. +aldomero M. 'apa( represented

"etre =alero drin# the pre liminary investi#ation of said !riminal !ase while his son, Atty. &ose '.

'apa(, represented "etre =alero drin# the trial of the !ase /pp. 15 O 17, Crim. Case wrapper,

Vol. 44 of !rim. Case 3o. 5%%. 4n said !riminal !ase, the sb:e!t matter of the offense of estafa

thro#h falsifi!ation of pbli! do!ment was the deed of sale entered into by and between "etre

=alero and Carmen Verso, whi!h deed of sale was effe!ted and !onsmmated with the a!tiveparti!ipation of Atty. &ose '. 'apa(, who assisted "etre =alero in filin# the petition for the

issan!e of a se!ond owner-s dpli!ate !ertifi!ate of title /;h. , p. 7, Folder of ;hibits, Civil

Case 3o. 577.

>he above rea!tions of Atty. &ose '. 'apa( and his !on!ern for "etre =alero resi#nin# from

his :ob only to a!t as defense !onsel for =alero as well as the !on!ern of Atty. +aldomero M.

'apa( representin# "etre =alero in the preliminary investi#ation are of dbios

impli!ations. @ere they ma(in# sre that "etre =alero N who as aforestated fradlently sold in

195 to Carmen Verso the !o!ont land of abot he!tares for the very low pri!e of "E00.00,

with the assistan!e of Atty. &ose '. 'apa( wold not impli!ate them father and sonP

"etre =alero died in 1958 while servin# senten!e for estafa thr falsifi!ation of pbli! do!ment

before the trial of this !ivil !ase be#an on A#st , 19E0. He filed answer withot any lawyer

assistin# him.


8/8

Moreover, it is !rios why the provin!ial fis!al did not in!lde Atty. +aldomero M. 'apa( and

Atty. &ose '. 'apa( in the prose!tion of "etre =alero in the !riminal !ase, despite the e;isten!e

of aprima facie !ase a#ainst them.

E. >he !ollsion amon# the aforesaid respondents is frther revealed by the #ross inade*a!y of

the pr!hase pri!e paid by respondent Verso to "etre =alero whi!h is a bad#e of frad. 4n the

first sale of the same par!el of land, of almost he!tares with !o!ont trees, Atty. 'ai# paid the

amont of "1,500.00 for the one half of the land the !onsideration of the other half bein# the

le#al servi!es rendered by him to "etre =alero. $bviosly then, the other half was li(ewise

worth that m!h. Hen!e, the entire land of abot he!tares with !o!ont trees was worth noless than "%,000.00 on &ne 1, 198. More than for years thereafter, on &ly 19, 195,

respondent Verso, in the se!ond sale made by "etre =alero, paid the measly sm

ofPD==.== for the entire lot, or appro;imately "8.00 per he!tare, m!h less than the

#overnment pri!e then for n!ltivated or nimproved pbli! lands.

A note on the present postre of Atty. &ose 'oada 'apa(. His sdden protestation of !on!ern

for the name, honor and inte#rity of his late father Atty. +aldomero M. 'apa( and of his own

wold seem hollow, if not hypo!riti!al.

As heretofore stated, as early as May %, 195 when he assisted respondent Carmen Verso in

the filin# of her answer to the !omplaint filed by the 'ai#s, he had already (nowled#e of the

imptations of mali!e and !onnivan!e earlier enmerated, a#ainst him and his father, Atty.

+aldomero M. 'apa(. He shold have filed the ne!essary answer for his father and then and

there deny and rebt the aforestated imptations of mali!e and !onspira!y, as well as ta(e the

ne!essary a!tions to prote!t himself from any adverse inferen!es that may arise from the

aforesaid imptations a#ainst him by filin# either a motion to intervene in the !ase or to stri(e ot

the alle#ations of the !omplaint imptin# mali!e and !onspira!y to him N not bein# a party to the

!ase. +t what did he doP After filin# on May %, 195 the answer for respondent Verso to the

!omplaint, he disappeared from the !ase withot any formal withdrawal< and Atty. "edro A.

Venida too( over the defense of Verso drin# the trial and on appeal. 2espite the serios

alle#ations of mali!e and !onspira!y a#ainst him and his father, he !onveniently remained *iet

for over years from the filin# of the !omplaint on April 1%, 195 and the filin# of Verso-s

answer to the !omplaint on May %, 195. And now that this Cort, pon review, not only fond as

tre the a!ts impted to his late father, Atty. +aldomero M. 'apa(, bt also his /Atty. &ose '.

'apa(-s own involvement, he appears to be to!hed to the *i!(, with profse protestation of

in:red feelin#s be!ase his and his father-s name, honor and inte#rity had been assailed in the

!hallen#ed de!ision, spi!ed with professions of his paternal loyalty, nobility and inno!en!e whi!h

he !old have properly and timely demonstrated twenty?for years a#o, when his father was stillalive thro#h several avenes then opened to him.

As hereinbefore intimated, the silen!e of Atty. +aldomero M. 'apa( despite re!eipt of the ori#inal

and amended !omplaint is intri#in# as it invites nflatterin# *estions.

$n the srfa!e, the aforesaid failre of Atty. &ose '. 'apa( to se!re a lawyer for himself and his

father, in the fa!e of his ability to defend the !ase of respondent Verso, who is not his relative,

defies nderstandin#, if it does not merit !ondemnation by his own father and by the other

members of their family or !lan.

@H)F$), >H M$>4$3 F$) )C$342)A>4$3 $F )"$323> CA)M3

V)$ A32 >H ">4>4$3 $F A>>Q. &$ '$6A2A 'A"A A) H)+Q 2342, F$)

'AC $F M)4>.

$ $)2)2.

laig vs ca

Documents