Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix, petitioner-appellee, vs.MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ, legatees, oppositors- appellants.

 

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. In due time she submitted an inventory of the estate as follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad, residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con sustitucion vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en atencion a que dicha propiedad fue creacion del querido padre del otorgante y por ser aquellos continuadores del apellido Ramirez,

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en cualquier memento vender a tercero los bienes objeto delegado, sin intervencion alguna de los titulares fideicomisaarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the testator's express win to give this property to them Nonetheless, the lower court approved the project of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership. They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of his estate over which he could impose no burden, encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what she is given under the will is not entitled to have any additional share in the estate. To give Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that there are several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further that the fiduciary or first heir and the second heir are living at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the one-third usufruct over the estate given to the widow Marcelle However, this question has become moot because as We have ruled above, the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or stated differently because she did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or transmission. The Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be only one tranmission or substitution, and the substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman, however, construe the word "degree" as generation, and the present Code has obviously followed this interpretation. by providing that the substitution shall not go beyond one degree "from the heir originally instituted." The Code thus clearly indicates that the second heir must be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These are the only relatives who are one generation or degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. 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. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only succession by operation of law but also testamentary succession. We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-123              December 12, 1945

JOSEFA FABIE, petitioner, vs.JOSE GUTIERREZ DAVID, Judge of First Instance of Manila, NGO BOO SOO and JUAN GREY, respondents.

Sancho Onocencio for petitioner.Serverino B. Orlina for respondent Ngo Soo.No appearance for other respondents.

 

OZAETA, J.:

The petitioner Josefa Fabie is the usufructuary of the income of certain houses located at 372-376 Santo Cristo, Binondo, and 950-956 Ongpin, Santa Cruz, Manila, under the ninth clause of the will of the deceased Rosario Fabie y Grey, which textually reads as follows:

NOVENO. — Lego a mi ahijada menor de edad, Maria Josefa de la Paz Fabie, en usufructo vitalicio las rentas de las fincas situadas en la Calle Santo Cristo Numeros 372 al 376 del Disrito de Binondo, de esta Ciudad de Manila, descrita en el Certificado Original de Titulo No. 3824; y en la Calle Ongpin, Numeros 950 al 956 del Distrito de Santa Cruz, Manila descrita en el Certificado Original de Titulo No. 5030, expedidos por el Registrador de Titulos de Manila, y prohibo enajene, hipoteque, permute o transfiera de algun modo mientras que ella sea menor de edad. Nombro a Serafin Fabie Macario, mi primo por linea paterna tutor de la persona y bienes de mi ahijada menor, Maria Josefa de la Paz Fabie.

The owner of Santo Cristo property abovementioned is the respondent Juan Grey, while those of the Ongpin property are other person not concern herein. Previous to September 1944 litigation arose between Josefa Fabie as plaintiff and Juan Grey as defendant and the owner of the Ongpin property as intervenors, involving the administration of the houses mentioned in clause 9 of the will above quoted (civil case No. 1659 of the Court of First Instance of Manila). That suit was decided by the court on September 2, 1944, upon a stipulation in writing submitted by the parties to and approved by the court. The pertinent portions of said stipulation read as follows:

(4) Heretofore, the rent of said properties have been collected at times by the respective owners of the properties, at other times by the usufructuary, and lastly by the defendant Juan Grey as agent under a written agreement dated March 31, 1942, between the owners of both properties and the usufructuary.

(5) When the rents were collected by the owners, the net amounts thereof were duly paid to the usufructuary after the expenses for real estate taxes, repairs and insurance premiums, including the documentary stamps, on the properties and the expenses of collecting the

rents had been deducted, and certain amount set aside as a reserve for contingent liabilities. When the rents were collected by the usufructuary, she herself paid the expenses aforesaid. When the rents are collected by the defendant Juan Grey under the agreement of March 31, 1942, the net amounts thereof were duly paid to the usufructuary, after deducting and setting aside the items aforesaid, monthly, until the month of October 1943, when the usufructuary refused to continue with the agreement of March 31, 1942.

x x x           x x x          x x x

II. The parties hereto jointly petition the Court to render judgment adopting the foregoing as finding of facts and disposing that:

(8) Beginning with the month of September 1944, the usufructuary shall collect all the rents of the both the Sto. Cristo and the Ongpin properties.

(9) The usufructuary shall, at her own cost and expense, pay all the real estate taxes, special assessments, and insurance premiums, including the documentary stamps, and make all the necessary repairs on each of the properties, promptly when due or, in the case of repairs, when the necessary, giving immediate, written notice to the owner or owners of the property concerned after making such payment or repairs. In case of default on the part of the usufructuary, the respective owners of the properties shall have the right to make the necessary payment, including penalties and interest, if any, on the taxes and special assessments, and the repairs and in that event the owner or owners shall entitled to collect all subsequent rents of the property concerned until the amount paid by him or them and the expenses of collection are fully covered thereby, after which the usufructuary shall again collect the rents in accordance herewith.

(10) The foregoing shall be in effect during the term of the usufruct and shall be binding on the successors and assigns of each of the parties.

(11) Nothing herein shall be understood as affecting any right which the respective owners of the properties have or may have as such and which is not specifically the subject of this stipulation.

In June 1945 Josefa Fabie commenced an action of unlawful detainer against the herein respondent Ngo Boo Soo (who says that his correct name is Ngo Soo), alleging in her amended complaint that the defendant is occupying the premises located at 372-376 Santo Cristo on a month-to month rental payable in advance not latter than the 5th of each month; that she is the administratrix and usufructuary of said premises; "that the defendant offered to pay P300 monthly rent payable in advance not later than the 5th of every month, beginning the month of April 1945, for the said of premises including the one door which said defendant, without plaintiff's consent and contrary to their agreement, had subleased to another Chinese, but plaintiff refused, based on the fact that the herein plaintiff very badly needs the said house to live in, as her house was burned by the Japanese on the occasion of the entry of the American liberators in the City and which was located then at No. 38 Flores, Dominga, Pasay; that defendant was duly notified on March 24 and April 14, 1945, to leave the said premises, but he refused"; and she prayed for judgment of eviction and for unpaid rentals.

The defendant answered alleging that he was and since 1908 had been a tenant of the premises in question, which he was using and had always used principally as a store and secondarily for living quarters; that he was renting it from its owner and administrator Juan Grey; "that plaintiff is merely the usufructuary of the income therefrom, and by agreement between her and said owner, which is

embodied in a final judgment of the Court of First Instance of Manila, her only right as usufructuary of the income is to receive the whole of such income; that she has no right or authority to eject tenants, such right being in the owner and administrator of the house, the aforesaid Juan Grey, who has heretofore petitioned this Court for permission to intervene in this action; that plaintiff herein has never had possession of said property; that defendant's lease contract with the owner of the house is for 5-year period, with renewal option at the end of each period, and that his present lease due to expire on December 31, 1945 . . .; that on June 1, 1945, defendant made a written offer to plaintiff to compromise and settle the question of the amount of rent to be paid by defendant . . . but said plaintiff rejected the same for no valid reason whatever and instituted the present action; that the reason plaintiff desires to eject defendant from the property is that she wishes to lease the same to other persons for a higher rent, ignoring the fact that as usufructuary of the income of the property she has no right to lease the property; that the defendant has subleased no part of the house to any person whomsoever.

Juan Grey intervened in the unlawful detainer suit, alleging in his complaint in intervention that he is the sole and absolute owner of the premises in question; that the plaintiff Josefa Fabie is the usufructuary of the income of said premises; by virtue of a contract between him and the intervenor which will expire on December 31, 1945, with the option to renew it for another period of five years from and after said date; that under the agreement between the intervenor and plaintiff Josefa Fabie in civil case No. 1659 of the Court of First Instance of Manila, which was approved by the court and incorporated in its decision of September 2, 1944, the only right recognized in favor of Josefa Fabie as usufructuary of the income of said premises is to receive the rents therefrom when due; and that as usufructuary she has no right nor authority to administer the said premises nor to lease them nor to evict tenants, which right and authority are vested in the intervenor as owner of the premises.

The municipal court (Judge Mariano Nable presiding) found that under paragraph 9 of the stipulation incorporated in the decision of the Court First Instance of Manila in civil; case No. 1659, the plaintiff usufructuary is the administratrix of the premises in question, and that the plaintiff had proved her cause. Judgment was accordingly rendered ordering the defendant Ngo Soo to vacate the premises and to pay the rents at the rate of P137.50 a month beginning April 1, 1945. The complaint in intervention was dismissed.

Upon appeal to the Court of First Instance of Manila the latter (thru Judge Arsenio P. Dizon) dismissed the case for the following reason: "The main issue *** is not a mere question of possession but precisely who is entitled to administer the property subject matter of this case and who should be the tenant, and the conditions of the lease. These issues were beyond the jurisdiction of the municipal court. This being case, this Court, as appellate court, is likewise without jurisdiction to take cognizance of the present case." A motion for reconsideration filed by the plaintiff was denied by Judge Jose Gutierrez David, who sustained the opinion of Judge Dizon. lawphi1.net

The present original action was instituted in this Court by Josefa Fabie to annul the order of the dismissal and to require to the Court of First Instance to try and decide the case on the merits. The petitioner further prays that the appeal of the intervenor Juan Grey be declared out of time on the ground that he receive copy of the decision on August 3 but did not file his notice of appeal until August 25, 1945.

1. The first question to determine is whether the action instituted by the petitioner Josefa Fabie in the municipal court is a purely possessory action and as such within the jurisdiction of said court, or an action founded on property right and therefore beyond the jurisdiction of the municipal court. In other words, is it an action of unlawful detainer within the purview of section 1 of Rule 72, or an action involving the title to or the respective interests of the parties in the property subject of the litigation?

Said section 1 of Rule 72 provides that "a landlord, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such landlord, vendor vendee, or other person, may, at any time within one year after such unlawful deprivation of withholding of possession, bring an action in the proper inferior court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with the damages and costs."

It is admitted by the parties that the petitioner Josefa Fabie is the usufructuary of the income of the property in question and that the respondent Juan Grey is the owner thereof. It is likewise admitted that by virtue of a final judgment entered in civil case No. 1659 of the Court of First Instance of Manila between the usufructuary and the owner, the former has the right to collect all the rents of said property for herself with the obligation on her part to pay all the real estate taxes, special assessments, and insurance premiums, and make all necessary repairs thereon, and in case default on her part the owner shall have the right to do all those things, in which event he shall be entitled to collect all subsequent rents of the property concerned until the amount paid by him and the expenses of collection are fully satisfied, after which the usufructuary shall again collect the rents. There is therefore no dispute as to the title to or the respective interests of the parties in the property in question. The naked title to the property is to admittedly in the respondent Juan Grey, but the right to all the rents thereof, with the obligation to pay the taxes and insurance premiums and make the necessary repairs, is, also admittedly, vested in the usufructuary, the petitioner Josefa Fabie, during her lifetime. The only question between the plaintiff and the intervenor is: Who has the right to manage or administer the property — to select the tenant and to fix the amount of the rent? Whoever has that right has the right to the control and possession of the property in question, regardless of the title thereto. Therefore, the action is purely possessory and not one in any way involving the title to the property. Indeed, the averments and the prayer of the complaint filed in the municipal court so indicate, and as a matter of fact the defendant Ngo Soo does not pretend to be the owner of the property, but on the contrary admits to be a mere tenant thereof. We have repeatedly held that in determining whether an action of this kind is within the original jurisdiction of the municipal court or of the Court of First Instance, the averments of the complaint and the character of the relief sought are primarily to be consulted; that the defendant in such an action cannot defeat the jurisdiction of the justice of the peace or municipal court by setting up title in himself; and that the factor which defeats the jurisdiction of said court is the necessity to adjudicate the question of title. (Mediranvs. Villanueva, 37 Phil., 752, 759; Medel vs. Militante, 41 Phil., 526, 529; Sevilla vs. Tolentino, 51 Phil., 333; Supia and Batioco vs. Quintero and Ayala, 59 Phil., 312; Lizo vs. Carandang, G.R. No. 47833, 2 Off. Gaz., 302; Aguilarvs. Cabrera and Flameño, G.R. No. 49129.)

The Court of First Instance was evidently confused and led to misconstrue the real issue by the complaint in intervention of Juan Grey, who, allying himself with the defendant Ngo Soo, claimed that he is the administrator of the property with the right to select the tenant and dictate the conditions of the lease, thereby implying that it was he and not the plaintiff Josefa Fabie who had the right to bring the action and oust the tenant if necessary. For the guidance of that court and to obviate such confusion in its disposal of the case on the merits, we deem it necessary and proper to construe the judgment entered by the Court of First Instance of Manila in civil case No. 1659, entitled "Josefa Fabie and Jose Carandang, plaintiffs, vs. Juan Grey, defendant, and Nieves G. Vda. de Grey, et al., intervenors-defendants" which judgment was pleaded by the herein respondents Juan Grey and Ngo Soo in the municipal court. According the decision, copy of which was submitted to this Court as Appendix F of the petition and as Annex 1 of the answer, there was an agreement, dated March 31, 1942, between the usufructuary Josefa Fabie and the owner Juan Grey whereby the latter as agent collected the rents of the property in question and delivered the same to the usufructuary after deducting the expenses for taxes, repairs, insurance premiums and the expenses

of collection; that in the month of October 1943 the usufructuary refused to continue with the said agreement of March 31, 1942, and thereafter the said case arose between the parties, which by stipulation approved by the court was settled among them in the following manner: Beginning with the month of September 1944 the usufructuary shall collect all the rents of the property in question; shall, at her own cost and expense, pay all the real estate taxes, special assessments, and insurance premiums, including the documentary stamps, and make all the necessary repairs on the property; and in case of default on her part the owner shall the right to do any or all of those things, in which event he shall be entitled to collect all subsequent rents until the amounts paid by him are fully satisfied, after which the usufructuary shall again collect the rents. It was further stipulated by the parties and decreed by the court that "the foregoing shall be in effect during the term of the usufruct and shall be binding on the successors and assigns of each of the parties."

Construing said judgment in the light of the ninth clause of the will of the deceased Rosario Fabie y Grey, which was quoted in the decision and by which Josefa Fabie was made by the usufructuary during her lifetime of the income of the property in question, we find that the said usufructuary has the right to administer the property in question. All the acts of administration — to collect the rents for herself, and to conserve the property by making all necessary repairs and paying all the taxes, special assessments, and insurance premiums thereon — were by said judgment vested in the usufructuary. The pretension of the respondent Juan Grey that he is the administrator of the property with the right to choose the tenants and to dictate the conditions of the lease is contrary to both the letter and the spirit of the said clause of the will, the stipulation of the parties, and the judgment of the court. He cannot manage or administer the property after all the acts of management and administration have been vested by the court, with his consent, in the usufructuary. He admitted that before said judgment he had been collecting the rents as agent of the usufructuary under an agreement with the latter. What legal justification or valid excuse could he have to claim the right to choose the tenant and fix the amount of the rent when under the will, the stipulation of the parties, and the final judgment of the court it is not he but the usufructuary who is entitled to said rents? As long as the property is properly conserved and insured he can have no cause for complaint, and his right in that regard is fully protected by the terms of the stipulation and the judgment of the court above mentioned. To permit him to arrogate to himself the privilege to choose the tenant, to dictate the conditions of the lease, and to sue when the lessee fails to comply therewith, would be to place the usufructuary entirely at his mercy. It would place her in the absurd situation of having a certain indisputable right without the power to protect, enforce, and fully enjoy it.

One more detail needs clarification. In her complaint for desahucio Josefa Fabie alleges that she needs the premises in question to live in, as her former residence was burned. Has she the right under the will and the judgment in question to occupy said premises herself? We think that, as a corollary to her right to all the rent, to choose the tenant, and to fix the amount of the rent, she necessarily has the right to choose herself as the tenant thereof, if she wishes to; and, as she fulfills her obligation to pay the taxes and insure and conserve the property properly, the owner has no legitimate cause to complain. As Judge Nable of the municipal court said in his decision, "the pretension that the plaintiff, being a mere usufructuary of the rents, cannot occupy the property, is illogical if it be taken into account that that could not have been the intention of the testatrix."

We find that upon the pleadings, the undisputed facts, and the law the action instituted in the municipal court by the petitioner Josefa Fabie against the respondent Ngo Soo is one of unlawful detainer, within the original jurisdiction of said court, and that therefore Judges Dizon and Gutierrez David of the Court of First Instance erred in holding otherwise and in quashing the case upon appeal.

2. The next question to determine is the propriety of the remedy availed of by the petitioner in this Court. Judging from the allegations and the prayer of the petition, it is in the nature

of certiorari and mandamus, to annul the order of dismissal and to require the Court of First Instance to try and decide the appeal on the merits. Under section 3 of Rule 67, when any tribunal unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, and there is no other plain, speedy, and adequate remedy in the ordinary course of law, it may be compelled by mandamus to do the act required to be done to protect the rights of the petitioner. If, as we find, the case before the respondent judge is one of unlawful detainer, the law specifically requires him to hear and decide that case on the merits, and his refusal to do so would constitute an unlawful neglect in the performance of that duty within section 3 of Rule 67. Taking into consideration that the law requires that an unlawful detainer case be promptly decided (sections 5 and 8, Rule 72),it is evident that an appeal from the order of dismissal would not be a speedy and adequate remedy; and under the authority ofCecilio vs. Belmonte (48 Phil., 243, 255), and Aguilar vs. Cabrera and Flameño (G.R. No. 49129), we hold thatmandamus lies in this case.

3. The contention of the petitioner that the appeal of the intervenor Juan Grey was filed out of time is not well founded. Although said respondent received copy of the decision of the municipal court on August 3, 1945, according to the petitioner (on August 6, 1945, according to the said respondent), it appears from the sworn answer of the respondent Ngo Soo in this case that on August 8 he filed a motion for reconsideration, which was granted in part on August 18. Thus, if the judgment was modified on August 18, the time for the intervenor Juan Grey to appeal therefrom did not run until he was notified of said judgment as modified, and since he filed his notice of appeal on August 23, it would appear that his appeal was filed on time. However, we observe in this connection that said appeal of the intervenor Juan Grey, who chose not to answer the petition herein, would be academic in view of the conclusions we have reached above that the rights between him as owner and Josefa Fabie as usufructuary of the property in question have been definitely settled by final judgment in civil case No. 1659 of the Court of First Instance of Manila in the sense that the usufructuary has the right to administer and possess the property in question, subject to certain specified obligations on her part.

The orders of dismissal of the respondent Court of First Instance, dated September 22 and October 31, 1945, in the desahucio case (No. 71149) are set aside that court is directed to try and decide the said case on the merits; with the costs hereof against the respondent Ngo Soo.

Moran, C.J., Paras, Jaranilla, Feria, De Joya, Pablo, Perfecto, Bengzon, and Briones, JJ., concur.

 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-1592            September 20, 1949

In the estate of E.M. Bachrach, deceased. MARY MCDONALD BACHRACH, petitioner-appellee, vs.SOPHIE M. SEIFERT, ELISA ELIANOFF, AND THE HEIRS OF THE DECEASED GINDA M. SKUNDINA,oppositors-appellants.

Ross, Selph. Carrascoso and Janda for appellants.Delgado, Dizon and Flores for appellee.

MONTEMAYOR, J.:

In testate proceedings, civil case No. 51955 of the Court of First Instance of Manila, the will of E. M. Bachrach, who died on September 28, 1937, provided for the distribution of the considerable property which he had left. The provisions of the will which are important in this case are contained in the sixth and eighth paragraphs which read as follows:

Sixth: It is my will and do herewith bequeath and devise to my beloved wife Mary McDonald Bachrach for life all the fruits and usufruct of the remainder of all my estate after payment of the legacies, bequests and gifts provided for above; and she may enjoy such usufruct and use or spend such fruits as she may in any manner wish.

Eighth: It is my wish that upon the death of my beloved wife, Mary McDonald Bachrach, all my estate, personal, real and otherwise, and all the fruits and usufruct thereof which during her life pertained to her, shall be divided as follows:

One-half thereof shall be given to such charitable hospitals in the Philippines as she may designate; in case she fails to designate, then said sum shall be given to the Chief Executive of these Islands who shall distribute it, share and share alike to all charitable hospitals in the Philippines excluding those belonging to the governments of the Philippines or of the United States;

One-half thereof shall be divided, share and share alike by and between my legal heirs, to the exclusion of my brothers.

The widow Mary McDonald Bachrach as administratrix and executrix had been administering the property left by her deceased husband and enjoying the usufruct thereof. The other heirs Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine on September 14, 1940, filed a petition, agreed to by usufructuary Mary McDonald Bachrach, and the Solicitor General representing the Government of the Philippines, asking that the administratrix "be authorized to pay your petitioners from and after July 1, 1940, and until they receive their share of the estate left by the deceased E.M. Bachrach upon the death of his widow, a monthly allowance of P500, P250, P250, and P250, respectively, and the additional sum of P3,000 to the heir Sophie M. Seifert, who is in poor health, the said allowances to be deducted from your petitioners' share of the estate of the

deceased E.M. Bachrach upon the death of the widow." Acting upon the said petition, the Court of First Instance of Manila issued an order dated October 2, 1940 granting the petition in the following words:

Petition granted; and the administratrix and usufructuary Mary McDonald Bachrach is hereby authorized and instructed forthwith to pay to the said Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine a monthly allowance of Five Hundred (P500) Pesos; Two Hundred Fifty (P250) Pesos; Two Hundred Fifty (P250) Pesos, and Two Hundred Fifty (P250) Pesos, respectively, beginning July 1, 1940, and until the said heirs receive their share of the estate left by the deceased E. M. Bachrach upon the death of his widow, and the additional sum of Three Thousand (P3,000) Pesos to the heir Sophie M. Seifert.

From July 1, 1940 to December 31, 1941, the administratrix made the payments as ordered, having paid the total amount of P40,250. Payments during the Japanese occupation which would have amounted to P32,500, was suspended. Then payments were resumed from August, 1945 to January, 1947. Thereafter, the executrix declined to make further payments. The heirs petitioned the lower court for a writ of execution, ordering the administratrix to pay the allowances for February, 1947 and those in arrears for the period comprising from January 1, 1942 to July 31, 1945. This petition was denied and the heirs filed a petition for mandamus in the Supreme Court under G. R. No. L-1379. 1 The petition for mandamus was granted by this Court and the lower court was ordered to proceed in the execution of its order of October 2, 1940 and to issue the proper writ.

In the meantime, the administratrix Mary McDonald Bachrach, filed in the same case No. 51955 in the Court of First Instance of Manila a petition on February 19, 1947, recommending the liquidation of the assets of the estate of her deceased husband destined for charity because due to the havoc and miseries brought about by the last war, the charitable institutions to be benefited badly needed the property bequeathed to them under the will.

In another petition by the same administratrix Mary McDonald filed on February 18, 1947, she alleged that under the order of the court of October 2, 1940, she had already paid to the heirs P40,250; that besides that amount the heirs were demanding the amount of P32,500 representing the allowances that had accrued during the Japanese occupation while the estate was financially and economically prostrate; that the allowances paid to said heirs were taken from the fruits and income of the estate which belong exclusively to her as a usufructuary, that is to say, that the allowances paid to the heirs were advances from her personal funds; and that unless the heirs gave sufficient security for the protection of the administratrix, the ½ of the property corresponding to the heirs which consists mainly of shares of stock, when sold later, may not be sufficient to reimburse her estate after her death for the allowances made or given to the heirs from her personal funds. On the basis of said allegations, the administratrix prayed the court that she be relieved from the obligation to pay the heirs the monthly allowances ordered by the court in its order of October 2, 1940, and in the alternative, in the event that the court ordered her to continue the payments of said allowances, that she be authorized to sell as much of the assets of the ½ destined for the instituted heirs as may be necessary to enable her to continue the payment of said allowances.

Evidently, acting upon these two petitioners, the lower court issued its order dated February 27, 1947, expressing its opinion that pending the determination of the proceedings, it would be advisable to sell the property destined for charities but also the one-half adjudicated to the instituted heirs, the proceeds thereof, to be distributed accordingly later on. Acting upon a motion for reconsideration filed on behalf of the heirs, the lower court denied said motion, justifying its order sought to be reconsidered with the allegation that the case had been pending for several years: that the sale of said properties included in the testate proceedings and distribution of the proceeds of the sale to the

beneficiaries was one way of winding up said proceedings and the beneficiaries would be benefited in that they would receive their shares earlier. The heirs appealed from that order of February 27, 1947, and the order denying their motion for reconsideration. That appeal under G.R. No. L-1592 of this Court, is now the case under consideration.

Our first impression was that the appellants had no valid reason for objecting to the sale of the ½ of the estate adjudicated to them because in that way they would receive their shares earlier; furthermore, that the administratrix was warranted in asking for the sale of said ½ of the property adjudicated to the heirs or as much thereof as was sufficient to reimburse for the allowances being paid by her to the heirs from her personal funds or from the fruit of the said ½ which, as a usufructuary, be longed to her. Upon a closer scrutiny of the record however, not only of this case (G. R. No. L-1592) but also of G. R. No. L-1379 of which we take judicial notice, for which reason, said last case was cited and referred to for purposes of background so as to give a clear understanding of the facts in this case, we find that the allowance being paid to the heirs are really not paid from the personal funds of the administratrix but from the cash corresponding to the ½ of the estate adjudicated to the heirs, which cash, is deposited in the bank. According to the decision of the Supreme Court in the mandamuscase (G. R. No. L-1379) promulgated on December 19, 1947, the administratrix had in her possession the sum of P351,116.91 which has already been adjudicated to and belongs, although pro indiviso, to the heirs of the deceased E. M. Bachrach and that furthermore, the monthly allowances being paid to the heirs or due them should be paid from this sum and not from the personal funds of the administratrix Mary McDonald Bachrach. Furthermore, the very order of the lower court of October 2, 1940, authorizing the administratrix to pay to the heirs the monthly allowances already mentioned, stipulated in its fourth paragraph that said allowances should be taken from the properties to be turned over to the heirs of the deceased E. M. Bachrach and shall be deducted from the share of said heirs upon the death of the widow..

In the opinion of this Court, the cash in the possession of the administratrix corresponding to the ½ of the estate adjudicated to the heirs is sufficient for the monthly allowances being paid to the heirs and that there is no necessity for the sale of the ½ of the estate corresponding to them. The main objection to the heirs to the sale of ½ of the estate adjudicated to them, which ½ besides the cash already mentioned, consist mostly of shares of stock, is that said shares if sold now may not command a good price and that furthermore said heirs prefer to keep said shares intact as long as there is no real necessity for their sale. Of course, once said cash in the hands of the administratrix, corresponding to the heirs is exhausted because of the payment of the allowances made to the heirs, some other arrangements might be necessary. The administratrix would then have a right and reason to refuse the payment of said allowances from her said personal funds or from the fruits of the estate, which as a usufructuary, belong to her during her lifetime. But, until that point is reached, we see no valid reason for ordering the sale of the ½ of the estate belonging to the heirs over their objection.

In view of the foregoing, the order appealed from, insofar as it directs the sale of the one-half share of the estate destined and adjudicated to the instituted heirs, is hereby reversed. With costs.

Moran, C.J., Ozaeta, Paras, Feria, Bengzon, Tuason, Reyes and Torres, JJ., concur.Padilla, concurs in the result.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-39187 January 30, 1982

ANULINA L. VDA. DE BOGACKI petitioner, vs.HON. SANCHO Y. INSERTO Presiding Judge, Branch 1, Court of First Instance of Iloilo, THE PROVINCIAL SHERIFF OF ILOILO, and MA. EMMA LUZ BOGACKI respondents.

 

CONCEPCION JR., J.:

Petition for certiorari and prohibition with preliminary injunction to annul the order of the respondent Judge dated August 5, 1974, in Civil Case No. 7262 of the Court of First Instance of Iloilo, directing the issuance of a writ of possession in favor of therein plaintiff, now private respondent, Maria Emma Luz Bogacki, as well as the levy on execution dated March 26, 1971, and the sale at public auction dated July 21, 1971, and to restrain the respondents from enforcing said orders or doing acts that would tend to dispossess the herein petitioner of her usufruct. As prayed for, a temporary restraining order was issued by this Court on September 23, 1974. 1

The private respondent, Maria Emma Luz Bogacki, is the owner of four parcels of land situated in Iloilo City, and more particularly known as Lots 72-B, 591, 73, and 72-A of the Cadastral Survey of Iloilo over which her mother, herein petitioner Anulina Ledesma Vda. de Bogacki has a usufruct, covering one-third (1/3) of one-half (1/2) each of the said parcels of land or equivalent to one-sixth (1/6) of the share pertaining to the deceased Cesar Bogacki, Jr. Due to a misundersatnding, Maria Emma Bogacki, left the home for her mother and the latter took possession of all these properties exclusively for herself, without sharing with Maria Emma Luz the rentals she obtained from the said properties. As a consequence, Maria Emma Luz filed an action for partition with the Court of First Instance of Iloilo against her mother Anulina "to define the portions over which the defendant may exercise her usufructuary rights over the four parcels of land, Lots 72-B, 591, 73 and 72-A." After appropriate proceedings, judgment was rendered therein, as follows:

FOR ALL THE FOREGOING, the Court hereby orders the defendant to limit her right of usufruct to one-sixth (1/6) each of all these portions of the land described in the complaint and which is now subject of litigation, including 14th 72-A which is included in the amended complaint already admitted by this Court.

It is to be regretted that the several attempts of the Court as well as the attorney for the parties and the willingness on the part of the plaintiff to assign to the defendant a definite portion of some of these lots to correspond to the usufructuary right of the mother, she has adamantly refused to accede to any approach at an amicable settlement thereby making manifest the necessity of defining the same for her compliance. Under the circumstances, the Court is constrained to order the mother, the defendant, to get only one-sixth (1/6) of whatever collection may be obtain from the lots in question and orders her to turn over to the plaintiff 5/6 of all that she had

previously collected from the lots not beyond ten years before this date and conservatively appraised at P50.00 a month from 1959 until the filing of this case and an equivalent of said amount from date of judgment, without pronouncement as to other damages or costs. 2

No appeal was taken from said decision and a writ of execution was issued on March 3, 1971. But, since no tangible assets or properties were available to satisfy the money judgment, the plaintiff therein asked the Court that a levy be made on the usufructuary rights of the defendant. 3 The defendant opposed the motion upon the ground that her usufructuary right is one created by law as a surviving spouse and hence, exempt from execution for family reasons. 4 The motion was denied on March 25, 1971, 5 and thereafter, the respondent Sheriff set the sale of the usufruct at public auction. 6 The defendant filed an urgent motion to stop said public auction sale, 7 but the motion was denied on June 24, 1971. 8 The usufructuary rights were subsequently sold to the judgment creditor, Maria Emma Luz Bogacki, as the highest bidder thereof, for P6,300.00. 9 On July 26, 1971, the defendant Anulina Ledesma Vda. de Bogacki filed a motion for the reconsideration of the order of June 24, 1971, stating a new grounds therefor, that the usufructuary right is exempt from execution under Sec. 12(a) of Rule 39, Revised Rules of Court; and that the usufruct cannot be levied upon, much less sold at the public auction which, in effect, would extinguish it in a manner not according to the modes for extinguishing a usufruct as provided for under Art. 603 of the Civil Code. 10 Her motion was denied on July 31, 1971. 11 On October 24, 1972, the plaintiff filed a motion for the issuance of an alias writ of execution, to which the defendant filed an opposition, but the said motion was withdrawn before the court could act on it, and the plaintiff, instead, filed a motion for the issuance of a writ of possession, 12 which was granted by the respondent Judge on August 5, 1974. 13

Hence, the instant recourse for the annulment of the order of August 5, 1974, as well as the levy on execution and the sale at public auction of the petitioner's usufructuary rights, and to restrain the respondents from dispossessing her of the said usufruct.

The only issue to be resolved, considering the facts, is whether or not there was abuse of discretion in the levy and sale on execution of the petitioner's usufructuary rights and the issuance of the writ of possession.

The petitioner claimed that her usufructuary rights are exempt from execution for the reasons that: (1) a usufruct of a surviving spouse cannot be alienated for family reasons pursuant to Art. 321 of the Civil Code; (2) her usufruct, already confined to a single area equivalent to 1/6 of the total area of the lots on which she has a usufruct and where she had built a residential house, is a homestead within the purview of Sec. 12 (a) of Rule 39, Rules of Court; and (3) her usufructuary rights partake of the nature and character of such personal relations as in the right to receive legal support, government pension and gratuity, as provided for under Sec. 12(1) of Rule 39. The petitioner further claimed that her usufruct cannot be levied on execution, much less sold at public auction, which, in effect, would extinguish it in a manner not according to the modes for extinguishing a usufruct provided for under Art. 603 of the Civil Code.

The petition is without merit. This Court had ruled that the usufruct of a widow may be transferred, assigned or otherwise disposed of by her as she may please, like any other hereditary property, 14 and hence, an interest in real property which can be sold upon execution. 15

Besides, the grounds relied upon by the petitioner in resisting the levy and sale on execution of her usufructuary rights are devoid of merit. Thus. the petitioner claimed that her usufruct cannot be alienated for family reasons pursuant to Article 321 of the Civil Code. This article of the Civil Code, however, cannot be invoked by the petitioner because the usufructuary rights mentioned in this article are those enjoyed by parents over the property of their unemancipated children under their

custody, and not those enjoyed by the petitioner which are those of a widow, constituted on the property of her late husband as her share in the estate of the latter. Said article provides:

Art. 321. The property which the unemancipated child has acquired or may acquire with his work or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father or mother under whom he is under parental authority and in whose company he lives; but if the child, with the parent's consent, should live independently from them, he shall be considered as emancipated for all purposes relative to said property, and he shall have over it dominion usufruct and administration.

The usufruct herein granted cannot be alienated or transferred to third persons because it arises from parental authority and is necessary to enable the parents to carry out their obligations to the incompetents under their authority. But, upon emancipation of the child or loss of parental authority, as in the case of the private respondent who has already attained the age of majority, is married, and living independently of the petitioner, the usufruct is extinguished.

The petitioner also claimed that her usufruct, which she had confined to a single area of about 500 square meters, equivalent to 1/6 of the total area of the lots of the private respondent on which she has a usufruct, and where she had constructed a residential house, is a homestead and therefore, exempt from execution according to Sec-12(a), Rule 39 of the Rules of Court.

But, Section 12(a) of Rule 39 cannot be invoked by the petitioner. Under this section, the debtor's family home constituted in accordance with the Civil Code, or in the absence thereof, the homestead in which he resides, and the land necessarily used in connection therewith, both not exceeding in value P3,000.00, shall be exempt from execution. In the instant case, however, the execution was not enforced against the petitioner's "homestead" or residential house, but on her usufructuary rights over the lots belonging to the private respondent. The residential house constructed by the petitioner on the land of the private respondent is but an improvement on the property which the usufructuary may remove upon extinguishment of the usufruct, if it be possible to do so without damage to the property. 16

Section 12 (1) of Rule 39 is not also applicable because the property levied and sold on execution is not the right to receive legal support or money or property obtained as such support, or any pension or gratuity from the government. The right to support, unlike the usufruct of a widow, is a personal right essential to the life of the recipient, so that it cannot be subject to attachment or execution. 17 On the other hand, the usufruct of the widow, which was not reincorporated in the new Civil Code, maybe transferred or otherwise disposed of by her, as she may please, like any other hereditary property. 18

Moreover, it appears that the levy on execution was made on March 26, 1971, 19 and the petitioner's usufructuary rights were sold at a public auction sale on July 21, 1971. 20 The petitioner, however, took no action thereon such that the orders issued have already become final and executory when she filed the instant petition. It is now too late to review the proceedings made therein.

It results that there was no abuse of discretion committed in the levy and sale on execution of the petitioner's usufructuary rights to satisfy a judgment against her.

There was, likewise, no abuse of discretion in the issuance of the writ of possession because the said writ is but complementary to the writ of execution, and the period for the redemption of the thing sold at public auction had expired without its being redeemed.

WHEREFORE, the instant petition should be, as it is hereby dismissed. The temporary restraining order heretofore issued is lifted and set aside. Costs against the petitioner.

SO ORDERED.

Barredo (Chairman), Abad Santos, Ericta and Escolin, JJ., concur.

 

 

Separate Opinions

 

AQUINO, J., concurring:

I concur. Maria Emma Luz Bogacki is the registered owner of four lots with a total area of 3,005 square meters located in Iloilo City. Her mother, Anulina L. Vda. de Bogacki, has a usufructuary right over a proindiviso one-sixth portion of the said lots. (See Art. 834, old Civil Code.)

The mother took possession of the four lots and collected all the rentals thereof. Her daughter sued her for partition and for the recovery of her five-sixths share of the rentals. The trial court in its decision of November 13, 1960 ordered the mother "to get only one-sixth (1/6)" of the rentals and "to turn over to the plaintiff (the daughter) 5/6 of all that she had previously collected from the lots not beyond ten years before" the date of the decision, which rentals were appraised at fifty pesos (P50 ) a month, and to pay further "an equivalent of said amount from date of the judgment".

That judgment, not having been appealed, became final and executory. It was enforced against the mother's usufructuary right which was levied upon by the sheriff and sold at public auction on July 21,1971 to the daughter for the sum of P6,300 (pp. 22-23, Rollo), broken down as follows:

Usufructuary right over 1/6 of Lot 72-A — P l,000.00

Usufructuary right over 1/6 of Lot 72-B — 1,500.00

Usufructuary right over 1/6 of Lot 73 — 3,000.00

Usufructuary right over l/6 of Lot 591 — 800.00

The mother filed a motion to set aside the execution sale on the ground that her usufruct and the house, wherein she resided, are exempt from execution. The trial court denied the motion in its order of July 31, 1971. It noted that only the mother's usufructuary right was sold at the execution sale. The mother did not appeal from that order.

In view of the merger of the rights of the naked owner and the usufructuary in the person of the daughter, who is the registered owner of the four lots, the usufruct was extinguished. The trial court in its order of August 5, 1974 directed the issuance of a writ of possession in favor of the daughter.

That order and the sale at public auction of the mother's usufructuary right are assailed in the instant petition for certiorari and prohibition filed in this Court on August 30, 1974 by the mother, Anulina L. Vda. de Bogacki. On September 23, 1974, this Court issued a resolution restraining the lower court from enforcing the writ of possession.

It should be noted that, according to the daughter, her mother, in order to enjoy her usufructuary right, had actually taken possession of a portion of the four lots, which portion has an area of 500 square meters, or about 1/6 of the total area, and which is allegedly the most valuable part of the lots because it abuts a principal street of the city where the market value of the lots is not less than seventy pesos a square meter in 1974. The daughter alleged that her mother constructed on the said 500-square meter portion a house of mixed materials, where she (the mother) and her common-law husband and their children reside, and that, aside from the residential house, her mother had constructed two or three small houses and a store which she had leased to third persons. The mother has appropriated the rentals derived from the said properties (p. 41, Rollo).

The question is whether the trial court acted in excess of jurisdiction in ordering the issuance of the writ of possession and in enforcing the judgment against petitioner's usufructuary right.

The petitioner acted belatedly in assailing the execution against her usufructuary right. As above- stated, the execution sale took place on July 21, 1971. It was only three years later, or after the trial court issued its order of August 5, 1974, directing the issuance of the writ of possession, that the petitioner questioned in this Court the execution sale involving her usufructuary right.

The petitioner contends that no execution can be enforced against her usufructuary right because that incorporeal property had been transformed into a house and a residential lot with an area of five hundred square meters or one-sixth of the area of the lots owned by the private respondent. That contention is based on the provision that no execution can be enforced against the judgment debtor's "homestead in which he resides, and land necessarily used in connection therewith, both not exceeding in value three thousand pesos" (Sec. 12[a], Rule 39, Rules of Court).

Petitioner's contention is devoid of merit. As already pointed out above, the execution was not enforced against her "homestead" or residential house. The levy and execution sale were effected against petitioner's usufructuary right, In intangible thing. That fact is unmistakably indicated in the notice and certificate of execution sale.

Can that usufructuary right be levied upon and sold at public auction to satisfy the judgment against the usufructuary? This question is answered in the affirmative in the 1911 case of Reyes vs. Grey, 21 Phil. 73, where it was held that the usufructuary right belonging to the husband with respect to the property left by his deceased wife is subject to execution (cited in 2 Moran's Rules of Court, 1970 Ed., p. 307).

That ruling is unquestionably applicable to this case which involves the widow's usufructuary right over one-sixth of the four lots left by her deceased husband. That right is an alienable interest in real property . (Copon vs. Umali, 87 Phil. 91; Guantia vs. Tatoy 88 Phil. 329).

With respect to the order for the issuance of a writ of possession, the same was based on section 35, Rule 39 of the Rules of Court. The petitioner or the usufructuary failed to make any redemption within one year after the sale of her usufructuary right to the judgment creditor who happened to be the naked owner of the four lots, a one-sixth portion of which was held in usufruct. Thus, the usufruct was extinguished by the merger of the usufruct and the naked ownership in the person of petitioner's daughter, now the private respondent (Art. 603[3] Civil Code).

The writ of possession is a complement of the writ of execution. In this case, the acquisition by the daughter of the absolute ownership over the four lots includes the right to obtain possession thereof without the need of filing a separate action against the possessor (Omnas vs. Rivera, 67 Phil. 419; Perez and Alcantara vs. Evite and Manigbas 1ll Phil. 564; and; Olego vs. Rebueno L-39350, October 29, 1975, 67 SCRA 446, 456).

However, the trial court should hold first a hearing before ordering the demolition of petitioner's improvements (See sec. 14, Rule 39, Rules of Court) and ascertain whether she is entitled to the rights of a builder in good faith under Article 448 of the Civil Code. In this sense, I dissent from the dispositive portion of the majority opinion.

In view of the foregoing considerations, I vote (1) to uphold the execution sale and the order for the issuance of the writ of possession and (2) for the dismissal of the petition but the trial court should first ascertain whether the petitioner is a builder in good faith before ordering the demolition of the improvements which she had constructed on the 500-square meter area occupied by her.

 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-45359             April 27, 1939

JACINTO DEL SAZ OROZCO Y MORTERA and MARIA PAZ ALCANTARA, plaintiffs-appellants, vs.SALVADOR ARANETA, defendant-appellee.

Angel A. Ansaldo for appellants.Araneta Zaragoza and Araneta for appellee.

VILLA-REAL, J.:

On October 28, 1935, the plaintiffs and appellants filed in the office of the clerk of court of the Court of First Instance of Manila a complaint praying, on the facts alleged therein, that the defendant Salvador Araneta be declared without any right to have, hold or dispose of the shares of stock covered by certificate of stock No. 8357 issued by the Benguet Consolidated Mining Company in favor of the plaintiff Jacinto del Saz Orozco y Mortera, and, consequently, without any right to have, hold or dispose of said certificate of stock; and that they themselves, without the intervention of said defendant Salvador Araneta, be declared entitled to withdraw said certificate of stock from the Bank of the Philippine Islands.

On November 20, 1935, the defendant, through counsel, interposed a demurrer alleging that there was a defect of parties defendant.

After hearing the demurrer, the plaintiffs' opposition thereto and the parties, the court overruled the same, with the defendant's exception.

On December 20, 1935 said defendant filed an answer in which after denying generally and specifically each and every fact alleged in the complaint and interposing a special defense, alleging that inasmuch as he has no personal right to the aforementioned 11,428 shares of stock of the Benguet Consolidated Mining Company, subject of this action, as he is merely the lawyer of Francisco del Saz Orozco y Lopez, Dolores del Saz Orozco Lopez, and their minor children Felisa, Eugenio, Antonio, Jose Maria, and Carlos, all surnamed Del Saz Orozco Lopez, who are the real parties in interest and who pretend to own the said shares of stock, and that said persons being necessary parties for the full and final determination of the merits of the case, it was necessary that they be included as parties defendant; and prayed that this be done.

Plaintiffs opposed this petition.

After hearing the petition for the inclusion of parties defendant, the opposition thereto, and the parties, the court issued an order dated January 4, 1936 requiring the plaintiffs to amend their complaint within a period of five days by including as defendants Francisco del Saz Orozco Lopez, Dolores del Saz Orozco Lopez, and the minors Felisa, Eugenio, Antonio, Jose Maria and Carlos, all surnamed Del Saz Orozco Lopez.

From the foregoing order the present appeal has been taken, six errors allegedly committed by the lower court in its order referred to having been assigned, which, however, may be reduced to the sole proposition that the lower court erred in ordering the inclusion of Francisco del Saz Orozco Lopez, Dolores del Saz Orozco Lopez, and the minors Felisa, Eugenio, Antonio, Jose Maria, and Carlos, all surnamed Del Saz Orozco Lopez, as parties defendant.

It appears from the complaint filed in the present case that the appellant Jacinto del Saz Orozco y Mortera is the registered owned of the 11,428 shares of stock of the Benguet Consolidated Mining Company which are the subject of this suit and are covered by certificate of stock No. 8387 of the aforesaid company, and that appellant, Maria Paz Alcantara, is the attorney-in-fact of the said plaintiff-appellant Jacinto del Saz Orozco y Mortera, and the administratrix of the properties and interests of the latter in the Philippines, and as such attorney-in-fact and administratrix, she was in possession of the aforesaid certificate of stock No. 8387 on or before December 20, 1934, and was consequently in possession of the shares of stock represented by said certificate; that the defendant-appellee Salvador Araneta, without any right to said shares of stock, induced the aforesaid Maria Paz Alcantara to deliver to him said certificate; that later, when required to return the same, said defendant answered that he could not do so, inasmuch as the shares of stock represented by said certificate belonged in naked ownership to some client of his; that the said appellee, Salvador Araneta, making use of similar means, induced Maria Paz Alcantara to ask for the delivery of said certificate of stock from the Bank of the Philippine Islands, preparing therefor a written communication to said bank with the signature of plaintiff Maria Paz Alcantara and making the latter understand that said certificate was in the hands of the aforesaid bank; that when the bank was required by Maria Paz Alcantara to deliver to her the certificate in question, said bank merely issued a receipt in which it was stated that said certificate was in the possession of the bank at the disposal of the appellant Maria Paz Alcantara and of the defendant-appellee Salvador Araneta in view of the latter's opposition; that Maria Paz Alcantara was not willing to deliver voluntarily to said Bank of the Philippine Islands or deposit therein or with any other person, that the plaintiff Jacinto del Saz Orozco y Mortera himself, the said certificate of stock, nor was she authorized by the plaintiff Jacinto del Saz Orozco y Montera, of whom she is attorney-in-fact and agent, to make said delivery or deposit with the Bank of the Philippine Islands.

By the demurrer interposed by the defendant, he hypothetically admitted the allegation contained in the complaint that Maria Paz Alcantara is the attorney-in-fact and administratrix of the properties and interests in these Islands of the other plaintiff Jacinto del Saz Orozco y Mortera, who is the registered owner of the 11,428 shares of stock of the Benguet Consolidated Mining Company which appear in the certificate of stocks No. 8387 issued in favor of said Jacinto del Saz Orozco y Mortera free from any annotation of an encumbrance. And in the answer interposed by said defendant after the overruling of the demurrer, he did state the nature of the interest which his clients Francisco del Saz Orozco Lopez, Dolores del Saz Orozco Lopez, and the minors Felisa, Eugenio, Antonio, Jose Maria, and Carlos, all surnamed Del Saz Orozco Lopez, have in the said 11,428 shares of stock, opposed to that of the plaintiffs, to show the necessity of making them parties defendant in the litigation.

It being clear from the complaint that the plaintiff Jacinto del Saz Orozco y Montera, represented by his attorney-in-fact and administratrix of his properties and interests in these Islands, Maria Paz Alcantara, is the registered owner of the said 11,428 shares of stock of the Benguet Consolidated Mining Company with the certificate of stock No. 8387, the subject of the complaint, and the nature of the interest which defendant alleges his clients have in the aforesaid shares not being clearly shown, the necessity to compel plaintiffs to include in their complaint said clients of the defendant as parties defendant can not be determined.

In view of the foregoing, the order appealed from is reversed and it is ordered that the case be remanded to the Court of First Instance of Manila for further proceedings. So ordered.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-4452             October 1, 1908

JUANA PICHAY, plaintiff-appellee, vs.EULALIO QUEROL, ET AL., defendants-appellants.

Evaristo Singson for appellants.Jose M. del Valle, and Lucas Paredes for appellee.

 

WILLARD, J.:

From the admissions made in the pleadings, and from the facts agreed upon in the court below, it appears that the plaintiff, Juan Pichay, in April, 1905, conveyed to the defendants an undivided one-third interest in twenty- five parcels of land situated in the Province of Ilocos Sur, as payment of a debt of P1,500 which she owed them. The contract by which this conveyance was made contained the following clause:

Third. The one-third part of these lands belong to me, it being my share in the inheritance left by my deceased parents; but I have requested may said creditors to allow me to enjoy the usufruct of the same until my death, notwithstanding the fact that I have conveyed the said lands to them in payment of my debt, and I bind myself not to sell, mortgage, or leave the said lands as inheritance to any person.

The defendants and appellants claim that this clause above quoted gave plaintiff no right of usufruct in the land, saying that it appears that she only asked for this right and it does not appear that the defendants gave it to her. This contention can not be sustained. The only reason for inserting this clause in the contract was for the purpose of securing to the plaintiff the right which is therein set out. The form of the words used is not sufficient to defeat this purpose.

On the 10th of August, 1905, the owners of the twenty- five parcels of land made a partition thereof among themselves, in which the plaintiff took no part, and in this partition certain specific tracts of land were assigned to the defendants as the third to which they were entitled by reason of the conveyance from the plaintiff to them. They have been in possession of the tracts so assigned to them in partition since the date thereof, and are now in such possession, and have refused to recognized in the plaintiff any right of usufruct therein. lawphil.net

In February, 1907, the plaintiff brought this action against the defendants, asking that it be declared that she had no right if usufruct in a third a twenty-five parcels of land; and that she had the right to the administrations of land, and that the appellees pay her the rents which they had received during the time of her dispossession.

The court rendered the following judgment:

In view of the allegations and evidence adduced by the parties, the court concludes: (1) That all the lands described in the complaint be delivered to Juana Pichay for administration; (2) that Juana Pichay has a right of usufruct in a third party of the said lands until her death; (3) that the partition of the said lands, made by the coowners of Juana Pichay can not affect the latter; (4) Eulalio Querol is hereby directed to deliver to Juana Pichay two crops from the third part of the lands in question, or the equivalent thereof, taking as a basis the present crop — that is, the crop to be harvested within a short time — and (5) Juana Pichay is sentence to indemnify Eulalio Querol in the sum of P300 on account of the past suit, without costs.

The first proposition contained in this judgment finds no support in the record, and there is nothing therein to show that the plaintiff had any acquired right to the administration of the lands described in the complaint.

The second proposition finds its support in the record if it is limited to the lands which were assigned to the defendants in partition.

The third proposition can not be supported. Article 490 of the Civil Code is as follows:

ART. 490. The usufructuary of part of a thing held in common shall exercise all the rights corresponding to the owner thereof with regard to the administration and collection of fruits or interests. Should the community cease by reason of the division of the thing possessed in common, the usufruct of the part awarded to the owner of coowner shall appertain to the usufructuary.

As to the fourth proposition, the agreed statement of facts shows that, while the defendants are in possession of the tracts which had been assigned to them, they received the crops for only two years; that the crop for the year 1906 amounted to 14 uyones and 13 manojos, of the value of P4 for each uyon, and that the crop of 1907 amounted to 15 uyones and 4 manojos, of the value of P6.25 for each uyon. These are the only amounts which the plaintiff is entitled to recover.

As to the fifth proposition, while it appears that the plaintiff excepted to the judgment, and stated that she desired to present a bill of exceptions, yet she is in fact did not present any. The error, therefore, assigned by her with reference to this fifth proposition can not be considered. (Naval vs. Benavides, 8 Phil. Rep., 250; Puruganan vs.Martin, 8 Phil. Rep., 519; Ullmann vs. Ullmann and Co., 10 Phil. Rep., 459.)

The judgment of the court below is reversed and the case remanded, with directions to enter a judgment in favor of the plaintiff to the effect that she is entitled to the right of usufruct in the lands assigned to the defendants by the partition of August 10, 1905, and to enter a judgment against the plaintiff and in favor of the defendant Querol for P149.48 without cost of to either party. No costs will be allowed to either party in this court. So ordered.

Arellano, C.J., Torres, Mapa, Carson and Tracey JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-18003             September 29, 1962

ROSARIO GREY VDA. DE ALBAR and JOSE M. GREY, petitioners, vs.JOSEFA FABIE DE CARANDANG and THE COURT OF APPEALS (Second Division), respondents.

Montenegro, Madayag, Viola and Hernandez for petitioners.Ambrosio Padilla and Santiago P. Blanco for respondents.

DIZON, J.:

Appeal taken by Rosario, Grey Vda. de Albar and Jose M. Grey from the decision of the Court of Appeals CA-G.R. No. 28196-R — an original action for certiorari filed by respondents Josefa Fabie de Carandang.

In her will the deceased Doña Rosario Fabie y Grey bequeathed the naked ownership of a parcel of land situated at Ongpin St., Manila, and of the building and other improvements existing thereon, to petitioners, and the usufruct thereof to respondent for life. Because the improvements were destroyed during the battle for the liberation of the City of Manila, the Philippine War Damage Commission paid petitioners a certain sum of money war damage. It was respondent, however, who paid the real estate taxes due on the land for the years 1945 to 1954.

On October 2, 1952, petitioners commenced Civil Case No. 17674 in the Court of First Instance of Manila to limit respondent's usufruct to the legal interest on the value of the land. After due trial the court rendered judgment as follows:

En virtud de todo lo cual, el Juzgado promulga decision a favor de la demandada usufructuaria, declarando:

(a) Que su usufructo vitalicio continua sobre la finca en Ongpin con derecho exclusivo de percibir durante su vida la totalidad de sus rentas, sin que los demandantes tengan derecho de inmiscuirse en la administracion de dicha finca;

(b) Con derecho de percibir el 6% de la cantidad de P8,574.00 percibidos como indemnizacion de guerra desde Enero 11, 1950;

(c) Al reembolso de la suma de P1,989.27 pagados o abonados por la demandada como pagos de amillaramiento desde la fecha de la Contestacion, Octubre 22, 1953;

(d) Mas la suma de P2,000.00 como daños y perjuicios en forma de honorarios de abogado y gastos de litigio;

(e) Con las costas a cargo de los demandantes.

Deciding the appeal taken by petitioners, the Court of Appeals rendered judgment as follows:

Wherefore, we hereby affirm the decision appealed from insofar as it holds that appellee's right of life usufruct subsist and is in full force and effect upon the Ongpin lot and the building now existing thereon, and that she is entitled to receive from appellants 6% of the amount the latter actually received from the Philippine War Damage Commission, and we hereby reverse said decision, declaring that reimbursement to appellee of the sum of P1,989.27 paid by her for real estate taxes is deferred until the termination of the usufruct, and that she is not entitled to any amount for attorney's fees.

On appeal taken by petitioners, We, in turn, rendered judgment affirming that of the Court of Appeals with the modification that petitioners should not be made to reimburse the real estate taxes paid by respondent for the years 1945 to 1954. Upon a motion for reconsideration, filed by petitioner, We further modified the appealed judgment by eliminating therefrom the portion requiring them to give security for the payment of legal interest on the amount of the war damage.

The record of the case having been remanded to the court of origin for execution, respondent filed a motion praying that the court issue an order for the "payment of the appellate jurisdiction of the Court of Appeals, 11, 1950 to January 11, 1960, which are already due to the defendant usufructuary from the plaintiffs, naked owners, as legal interest on the war damage payments received by the latter covering said ten years period and that plaintiffs be ordered to pay defendant usufructuary the amount of P196.32 every year, representing the legal interest per annum payable on or before January 15, 1961, and every year thereafter during the existence of the usufruct." 1awphîl.nèt

Petitioners opposed the motion alleging that because respondent failed to pay the real estate taxes on the property for the years 1954 to 1959, the property was declared delinquent and sold at public auction to Mrs. Pilar T. Bautista; that respondent failed to repurchase the property despite the fact that she was under obligation to do so in order to maintain her usufruct thereon; that June 8, 1959, petitioners repurchased the same for P715.05 and paid all the back taxes due thereon up to 1957, bringing the total amount of real estate taxes paid by them to P3,495.00; that, consequently, respondent's usufruct over the property was extinguished and they are entitled to reimbursement for the amount of real estate taxes paid by them. On these grounds they prayed for the denial respondent's motion, or for the suspension of the issuance of the writ of execution until the question of the termination of respondent's usufruct has been finally settled.

On July 2, 1960, the Court of First Instance of Manila issued the following order:

On motion of the defendant and it appearing that the decision of this Court dated August 10, 1953, as modified by the decisions of the Court of Appeals in CA-G.R. No. 11917-R and of the Supreme Court in G.R. No. L-13361, had already become final and executory, let a writ be issued for the execution of the said decision.

In collecting and satisfying the sums adjudged in the judgment in favor of the plaintiffs, [defendant] the Sheriff of Manila is hereby ordered to withhold the sum of P3,495.90 which the plaintiffs claim to be reimbursable to them for real estate taxes paid on the property for the years 1954, 1955, 1957 and 1959, as well as the sum spent in repurchasing the property from the buyer at public auction, Mrs. Pilar T. Bautista. The disposition of the said sum

should be threshed out by the parties in a separate incident either in this action or in an independent litigation.

On July 23, 1960 respondent filed a motion for the reconsideration of the above order upon the ground that it imposes a condition on the execution of the judgment rendered in the case — which, as modified by the appellate courts, had already become executory. The court, however, denied the motion in its order of August 25 of the same year, which, in part, said:

The Court recognizes the fact that the decision had already become final and executory and has ordered the issuance of the property writ for the enforcement of the said decision, in the first paragraph of the questioned order. The second paragraph of the same order was deemed necessary in view of the apparent conflict between the parties as to how to execute the decision, particularly with regard to the liability for real estate taxes on the property in question. The difference of their views on this matter is very evident in the pleadings they have filed in connection with the issuance of the writ of execution. In view of this divergence of opinion between the parties, the Court considered it wise to withhold the disputed sum, the same to be disposed of in such manner that the parties may thresh out between themselves in a separate incident or in an independent action. There is no intention to modify or impose any condition on the enforcement of the judgment; rather, the Court merely desires that the said judgment be enforced and executed in the correct and proper manner.

A petition for certiorari was thereafter filed by respondent Josefa Fabie de Carandang with the Court of Appeals to annul the orders of July 2, 1960 and August 25, 1960, on the ground that the same were not in conformity with our decision in G.R. No. L-13361, as modified by our resolution of February 10, 1960.

Respondents' answer, after admitting some of the averments made in the petition for certiorari and denying the others, alleged as affirmative defenses, inter alia, that appeal in due time was the proper remedy against the orders complained of; that the Court of Appeals had no jurisdiction over the petition because the writ sought was not in aid of its appellate jurisdiction, and lastly, that the respondent judge, in issuing the aforesaid orders, did not commit any grave abuse of discretion.

Upon the issues thus submitted, the Court of Appeals rendered the appealed decision annuling the orders of July 2 and August 25, 1960 mentioned heretofore, and ordering the respondent judge to issue the writ of execution in accordance with our decision of December 29, 1959, as modified by our resolution of February 10, 1960. Hence the present appeal.

Petitioners reiterate now their contention that the Court of Appeals had no jurisdiction over the petition forcertiorari filed by herein respondent, Josefa Fabie Vda. de Carandang (CA-G.R. No. 28196), because the writ sought therein was not in aid of its appellate jurisdiction. We find this contention to be meritorious.

It is not disputed that the Court of Appeals has original jurisdiction to issue writs of certiorari, prohibition,mandamus, and all other auxiliary writs in aid of its appellate jurisdiction (Section 30, Republic Act 296, commonly known as Judiciary Act of, 1948). Settled likewise is the view that anyone of the writs aforesaid is in aid of the appellate jurisdiction of the Court of Appeal within the meaning of the law, if said court has jurisdiction to review, by appeal or writ of error, the final decision that might be rendered in the principal case by the court against which the writ is sought.

In Breslin vs. Luzon Stevedoring Co., et al., 47 O.G. 1170, the main question raised by certiorari, was whether or not the Court of First Instance of Manila erred in denying admission of an amended complaint filed by the plaintiffs in Civil Case No. 4609 and, accordingly, in dismissing the case. The

Court of Appeals forwarded the case to us in the belief that the writ sought by petitioners therein was not in aid of its appellate jurisdiction. The reason given in support of this view was that if petitioners in the case had sought a review of the orders complained of, by appeal or writ of error, the review would have fallen under our exclusive appellate jurisdiction because it would have involved exclusively a question of law. In deciding whether or not the case was correctly forwarded to Us, however, we said that the reason relied upon had no bearing on the question of whether or not the writ ofcertiorari sought by the therein petitioners was in aid of the appellate jurisdiction of the Court of Appeals because the determining factor for the solution of that question was whether said court had appellate jurisdiction to review the final decision of the Court of First Instance on the merits of petitioners' action. In the present case it is undisputed that the review of the final decision rendered by the Court of First Instance of Manila in Civil Case No. 17674 instituted by herein petitioner against respondent Josefa Fabie de Carandang was within the appellate jurisdiction of the Court of Appeals. In fact, it was actually appealed to said court (CA-G.R No. 11917-R) and its decision was subsequently appealed to us (G.R. No. L-13361).

While from the above circumstances it might appear that — conformally with our decision in the Breslin case —the Court of Appeals had jurisdiction over the petition for certiorari filed by respondent Josefa Fabie de Carandang against herein petitioners and the Court of First Instance of Manila, because the writ sought was in aid of its appellate jurisdiction, we find it to be otherwise in view of one important fact that makes the aforesaid decision inapplicable to the present case.

Before Breslin and others filed their petition for certiorari with the Court of Appeals, there had been no trial and decision on the merits in the principal case — which was for the recovery of a sum of money — because the trial court not only refused to admit their amended complaint but also dismissed the case on the ground that the plaintiffs had no cause of action against the defendant. Consequently, it was still reasonable and logical to say that the writ of certiorari sought in their petition was in aid of the appellate jurisdiction of the Court of Appeals because, upon trial on the merits, the final decision that would have been rendered by the Court of First Instance of Manila would have been appealable to the Court of Appeals considering the amount involved.

In the present case such situation does not obtain. The main case (Civil Case No. 17674 of the Court of First Instance of Manila) had already been finally decided, first by the Court of First Instance of Manila, then by the Court of Appeals and lastly, by Us; our decision had become executory, for which reason the record of the case was remanded below for purposes of execution; there was absolutely nothing left of the substance of the action to be resolved. Such being the case, there can be no reason to say that the Court of Appeals still had jurisdiction to review the final orders and decision of the Court of First Instance in said case, by appeal or writ of error. That jurisdiction had already been exercised and exhausted with the rendition of the decision of the Court of Appeals in C.A. G.R. No. 11917. Upon the other hand, assuming that the orders complained of are appealable, they could only be appealed to Us because the appeal would have necessarily involved nothing more than a question of law, namely, whether or not the Court of First Instance of Manila had jurisdiction to issue the orders complained of.

In view of the foregoing, we hold that the Court Appeals had no jurisdiction to entertain Carandang's petition forcertiorari, and, as a result, the appealed decision is set aside. But, in view of the fact that we have original jurisdiction to entertain said petition, we shall proceed to decide it on the merits as if it had been originally filed with Us, in order to save time and avoid unnecessary expenses for the parties — following the practice adopted in the Breslin case.

The question to be resolved is whether the order July 2 and August 25, 1960 issued by the Court of First Instance of Manila modify our decision in G.R. No. L-13361, as modified by our resolution of February 10, 1960. The answer must be in the negative.

It is, of course, the law in this jurisdiction that a decision, once executory, is beyond amendment, the prevailing party being entitled to its execution as a matter of right; that the writ of execution to be issued must form with the decision (Buenaventura vs. Garcia, 78 Phil. 759); but it is likewise settled that a stay of execution of a final judgment may be authorized if necessary to accomplish the aims of justice, as for instance, where there has been a change in the situation of the parties which makes such execution inequitable (Chua Lee vs. Mapa, 51 Phil. 624-625, Li Kim Tho vs. Sanchez, 83 Phil. 776, 778).

As stated heretofore, when petitioners opposed respondent Carandang's motion for execution, they alleged that because the latter did not pay the real estate taxes on the property over which she had usufructuary rights, for the years 1954 to 1959, the property was declared delinquent and sold at public auction; that because Carandang failed to repurchase it, petitioners made the purchase for the sum of P715.05, and paid all the back taxes up to 1957 as well as those for the year 1959, having paid the total sum of P3,495.00 as real estate taxes, which amount they claimed reimbursement from respondent Carandang.

Upon the above facts — if proven — it would seem that petitioners had at least a prima facie case against the aforesaid respondent. It was in this connection precisely that the order of July 2, 1960 provided that "the Sheriff of Manila is hereby ordered to withhold the sum of P3,495.98 . . ., as well as the sum spent in repurchasing the property . . .", providing further that "the disposition of said sum should be threshed out by the parties in a separate incident either in this action or in the independent litigation." This order, in our opinion, does not amount to a modification of our final decision in the principal case, nor to the imposition of a condition upon its enforcement. It amounts to a mere stay of execution and is authorized by our decisions in the Chua Lee and Lim Kim Tho cases (supra).

IN VIEW OF THE FOREGOING, the writ prayed for in the petition for certiorari filed by Josefa Fabie de Carandang against Rosario Grey Vda. de Albar, Jose M. Grey, and the Hon. Conrado M. Vasquez (CA-G.R. No. 28196-R) is denied. With costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Makalintal, JJ., concur.