183212153 appellants brief 2

8/11/2019 183212153 Appellants Brief 2

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APPELLANTS BRIEF

COME NOW, the defendants-Appellants, through counsel, and unto

this Honorable Court of Appeals, submit the following BRIEF in support oftheir appeal.

The Notice to File Brief within forty five (45) days from receipt dated

January 28, 2013 was received February 8, 2013. The 45th

day from receipt

falls on March 25, 2013. Hence, Appellants Brief is filed on time.

STATEMENT OF THE CASE

This is a complaint for recovery of possession of real property, filed

by HAIDE LAGROSA-YANCE, represented by her attorney-in-fact MARICHEL

YANCE-BAUTISTA, Plaintiff Haide Lagrosa-Yance, in her Special Power of

Attorney, hereafter SPA empowered her attorney-in-fact to file this case

against SPS. CESAR PAGES. The attorney-in-fact, however filed this against

defendants SPS ANDRES PAGES who are not the one named in the SPA.

Notwithstanding the objection to the SPA when formally offered that the

complaint is filed against the defendants SPS. ANDRES PAGES, not

mentioned in the Special Power of Attorney, plaintiff still persisted incontinuing the case although SPA does not authorize filing against the said

SPS. ANDRES PAGES, defendants herein. While the attorney-in-fact is also

one of the heirs of the deceased CESAR YANCE, she did not file this case in

her own behalf but in behalf of her mother. There being no authority from

Haide Lagrosa Yance the court a quo should not have proceeded to try the

case.

For the reason that the attorney-in-fact has no authority to file this

case against spouses Andres Pages, defendants herein, the requiredverification and certification against forum shopping against spouses

Andres Pages is likewise unauthorized. There being no valid certification

against forum shopping the case should have been dismissed pursuant to

Section 5 of Rule 7 of the Rules of Court.

This defect is fatal and cannot be cured by submitting a new

certification against forum shopping. Absent a valid certification against

forum shopping, the case should be dismissed under the Rule of Rules of

Court.

This complaint to recover possession should not prosper against

defendants because of the finding of the Court of Appeals on CA Case No.

GR No. 86145 promulgated March 02, 1997 that there is a contract to sell


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between estate of Cesar Yance and the sps. Andres Pages and payment of

P495,000.00 with a balance of only P5,600.00 of the agreed purchase price.

STATEMENTS OF FACTS

1. Plaintiff filed a complaint for Recovery of Possession of Real Property

entitled HAIDE LAGROSA-YANCE, represented by MARICHEL YANCE-

BAUTISTA, plaintiff vs. ANDRESS PAGES, NONA PAGES, and all other

person claiming rights under them, defendants.

2. Plaintiff averred in the complaint that:

1. Plaintiff is of legal age, a resident of New Jersey, USA., co-

owner of a certain parcel of land covered by TCT No. 52170,

of the Registry of Deeds of Paraaque City, herein

represented by her daughter MARICHEL YANCE-BAUTISTA.

The latter is a resident of Block 18, Lot 31, Kalayaan Village,

Pasay City.

Copy of the Transfer of Certificate of Title No. 52170,

Special Power of Attorney and latest receipts of real

property tax are hereto attached and marked as Annexes

A B & C, respectively, forming integral parts hereof;

2. Spouses Andres Pages and Nona Pages, are both Filipinos,

currently occupying the land covered by TCT No. 52170, at

5 Thomas St., Multinational Subdivision, Paraaque City;

3. Sometime in 1992 defendants Andres Pages who

purportedly own the property contiguous to the property

covered by TCT No. 52170, without permission form

plaintiff, began occupying the portion of the latters

property by placing construction materials and equipmentthereon;

4.

Not contented with the aforesaid intrusion, defendants

constructed a shade with concrete floorings which served

as his parking lot for his vehicles;

5. Said parking shade practically covers almost half of the

property covered by TCT No. 52170, encroaching

practically about 90 square meters more or less;

6.

Despite repeated verbal and written demands, defendants

refuse to surrender possession of the more or less 90

square meters they are maliciously and illegally occupying

without paying rent and over the vehement objection s of

the herein plaintiff;


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7. Sometime later Andres Pages constructed his house with

roofs abutting the property of the plaintiff without

observing proper distance between a house adjacent to

another lot;

8. On March 12, 2007, plaintiff sent a demand letter to the

defendant copy of which hereto attached and marked as

Annex D, forming an integral part of hereof;

9. Despite said demand letter, defendants continue to

maliciously, and illegally occupy the property of the herein

plaintiff, without paying any rent or value thereof, to the

prejudice and damage of the latter.

10.In view of the repeated and deliberate failure of the

defendants to vacate the property of the plaintiff, the

latter was constrained to engage the services of counsel

for which they are committed to pay the amount of

P50,000.00 by way of acceptance fees and reasonable

amount of P2,500.00 for every appearance;

11.Defendants, for years have been occupying illegally the

property of plaintiff over the objections of the latter.

Plaintiff therefore has suffered sleepless nights and moral

anguish and prejudice for which the defendants should be

made to pay the amount of P100,000.00, by way of moraldamages;

12.To educate the public and to serve as example to the public

to dissuade them from following the illegal acts of the

defendants, the latter must be ordered to pay the plaintiff

the amount of P100,000.00 by way of exemplary damages;

13.Pending the resolution of this instant case, defendants

must be ordered to pay the plaintiff the amount of

P2,000.00, by way of reasonable rent, from the time thedemand letter was sent to them until possession of the

property in question is fully surrendered to the herein

plaintiff.

3. Defendants filed their answer alleging as follows:

Answer with Counterclaim

Defendants, through undersigned counsel,

answering the complaint, before this Honorable Courtmost respectfully state:

1. Defendants have no knowledge sufficient to form a belief

as to the truth of the allegation contained in paragraph 1

respecting the personal circumstances of plaintiff.


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2. The allegation contained in paragraph 2 are admitted

with the qualification that defendants Pages are

occupying only or 90 square meters of TCT 52170, a

portion of which is adjacent to their land.

3. The allegation contained in paragraph 3, 4, 5, 6, 7, 8, & 9

of the complaint are not entirely accurate and therefore

denied, the truth of the matter being as stated in

Affirmative Defenses.

4. The allegation contained in paragraph 10, 11, 12, & 13

are not ultimate allegation of facts, hence these are

denied, the truth of the matter being as stated in

Affirmative Defenses.

Affirmative Defenses

Defendants reiterate, as though fully set forth, the

answers above as far as the allegations are material and

relevant hereto, and further allege as follows:

5. There is no cause of action for recovery of possession. In

the case entitled Sps. Andres Pages and Nona Pages vs.

The Estate of Cesar Yance and Maria Cristina Yance,

docketed as C.A. G.R. No. 86145 promulgated March 02,2007, the Court of Appeals ruling that attained finality

stated that:

The core issue to be resolved is whether or not

the contract denominated as Contract to Sell, which

was entered into by and between herein plaintiffs-

appellants and defendant-appellee, Maria Cristina, is a

contract to sell or contract of sale.

In a contract to sell, a vendor reserves ownershipof the property and is not to pass until full payment. On

the other hand, a contract is one of sale, absent any

stipulation therein reserving title over the property to the

vendee until full payment of the purchase price nor giving

the vendor the right to unilaterally rescind the contract in

case of non payment. Thus, in a contract of sale, the sale

is absolute, in which title passes to the buyer upon

delivery of the things sold.

In the instant case, herein plaintiffs-appellants

argued that while their contract was denominated as

Contract to Sell, it was really a contract of sale since there

was no stipulation reserving ownership of the subject land

until full payment of the purchase price, and because

earnest money was given as part of the purchase price.


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We are not persuaded. We find the contract

entered into by and between herein plaintiffs-appellants

and defendants-appellee way back on December 16, 1997

as a contract to sell. The fact that earnest money was

given as part of the purchase price is not determinative ofwhether the contract is one of contract of sale or contract

to sell. What determines the nature of the contract is

whether or not there was a reservation of ownership of

the thing sold until full payment of the purchase price. The

contract entered into by and between herein plaintiffs-

appellants and defendant-appellee, Maria Cristina-Yance,

specifically provides that ownership over the 90 square

meter portion of the subject land shall be transferred only

to herein plaintiffs-appellants upon their compliance of all

the required conditions, to wit:

XXX

Upon compliance of all the

conditions required of the BUYER under this

contract, the SELLER shall execute the

requisite deed transferring ownership of the

property to the formers name.

XXX

One of the conditions in the contract is the full

payment of the purchase price which is P495,000.00.Before the fulfillment of such condition, ownership over

the things sold retains (sic) with the seller, Maria Cristina

Yance. We note that the herein plaintiffs-appellants,

spouses Andres Pages and Nona Pages, could not even

categorically state the total amount of money that they

had paid to the seller, Maria Cristina Yance, as would

entitle the former to be transferred with the ownership of

the thing sold. The trial court found that herein plaintiffs-

appellants paid only P489,400.00, which is P5,600.00

short of the agreed price. Hence, the seller, hereindefendant-appellee, Maria Cristina Yance, still retains

ownership over the property sold until full payment of the

purchase price thereof.

However, we note that the seller, Maria Cristina

Yance, seems to have no more intention without just

cause of continuing with her contract with herein plaintiff-

appellants, spouses Andres Pages and Nona Pages, as the

former could no longer be located. The least that herein

plaintiffs-appellants could do, for them to be entitled to

specific performance, that is, that a contract of sale over

the 90 square meter portion of the property be executed

in their favor is to make a consignation of the balance of

the purchase price by depositing it at the disposal of

judicial authority. (Citation omitted)


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Photocopy of the Decision promulgated on March

2, 2007 is Annex A hereof. Thus all that the defendants

need to do is only to pay the balance of Php5,600.00 in

accordance with the said Decision of the Court of Appeals.

6. That there is a violation of the certification against forum

shopping by Marichel Yance-Bautista. Contrary to the

certification of non-forum shopping, there is another case

involving the same parties, subject matter and issues as

the case at bar. The said case is entitled sps. ANDRES

PAGES and NONA PAGES vs ESTAIE OF CESAR YANCE and

MARIA CRISTINA YANCE. In aforementioned case the court

of Appeals rendered a decision promulgated on March 2,

2007 that has attained finality.

7.

There is a notice of lis pendens annotated at the back of

TCT 52170 involving civil case No. 99-0241 before the RTC

of Paraaque City which was later appealed to the Court

of Appeals and docketed as C.A. G.R.. C.V. No. 86145.

8. That said Decision ruled that there is a balance of

Php5,600.00 due the estate of Yance and should be paid

before transfer of ownership can be affected.

9. That defendant was given possession because of a

contract between the estate of Yance and defendantspouses.

Counterclaim

10. In filing this frivolous and unreasonable suit, plaintiffs

placed defendants in disrepute by practically calling them

land grabbers. As a result, defendants suffered

unnecessary dishonor, inconvenience, anxiety, distress

and worry, for which the plaintiffs must be compensatedefendants for moral damages in the sum of P100,000.00.

11. That defendants were constrained to defend themselves

by reason of this frivolous suit and was forced to engaged

the service of undersigned attorney for a fee;

consequently plaintiffs must reimburse defendants of the

sum they will spend by reason of this suit to wit;

Php50,000.00 for and as acceptance fee, Php100,000.00

for and as lawyer's retainer fees and appearance fee for

each day of hearing attended in the amount of

Php5,000.00. In addition the plaintiffs must reimburse

defendants of all sums incurred in connection with action

in such amount as will be proven in trial.

12.

To deter others from committing similar acts, plaintiffs

should be ordered to pay exemplary damages in the

amount Php500,000.00.


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The court a quo rendered judgment, the ---- portion of which

reads:

WHEREFORE, in view of the foregoing, judgment

is rendered in favor of the plaintiff and against the

defendants:

(1)Ordering the defendants to vacate and to surrender to the

plaintiff the possession of the portion of the land or about

90 square meters thereof covered by Transfer Certificate

of Title No. 52170;

(2)Ordering the defendants to pay a monthly rental herein

equitable fixed at P2,000.00 peer month for thepossession of the said portion of land of plaintiff reckoned

from the date of dem and which is March 12, 2007 until

the said portion of land is fully vacated/surrendered to the

plaintiff;

(3)Ordering the defendants to pay the plaintiff the sum of

P100,000.00 as moral damages;

(4)

Ordering the defendants to pay the plaintiff the sum ofP50,000.00 plus P2,500.00 per court appearance as and

for attorneys fees;

(5)And costs.

SO ORDERED.

Paraaque City, Philippines, August 30, 2012.

ASSIGNMENT OF ERRORS

1. The court a quo erred in holding that

this is a verified complaint for

recovering of possession of real

property filed by plaintiff Haide

Lagrosa Yance represented by

Marichel Yance-Bautista against

defendants Andres Pages and Nona

Pages notwithstanding the fact that

the Special Power of Attorney

executed by Haide Lagrosa Yance,

authorized the filing of the case


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against spouses Cesar Pages only and

not against spouses Andres Pages.

2.

The court a quo erred in reversing thefindings of facts of the Court of

Appeals that there was an argument

sometime in July 1997, prior to the

death of Cesar Yance, between Cesar

Yance represented by Maria Cristina

Yance by virtue of a Special Power of

Attorney and spouses Andres Pages

to buy the subject property.

3. The court a quo erred in reversing the

findings of facts of the Court of

Appeals in the case entitled

and

docketed as CA GR CV No. 86145 that

there is contract to sell between the

estate of Yance and the defendants

spouses Andres Pages.

4. The court a quo erred in holding that

plaintiff as the registered owner of

the property has the better right to

possess the property notwithstanding

the fact that there is an adverse claim

annotated at the back of the title

respecting a contract to sell in favor

of the defendants spouses Andres

Pages, the existence of which isconfirmed ruled by the Court of

Appeals in said CA GR No. .

5. The court a quo erred in ordering

defendants to vacate the property in

question, to pay plaintiff damages,

attorneys fees and cost.

ARGUMENTS/DISCUSSION

1.

First Assigned Error.

The court a quo erred in holding that

this is a verified complaint for

recovering of possession of real


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property filed by plaintiff Haide

Lagrosa Yance represented by

Marichel Yance-Bautista against

defendants Andres Pages and NonaPages notwithstanding the fact that

the Special Power of Attorney

executed by Haide Lagrosa Yance,

authorized the filing of the case

against spouses Cesar Pages only

and not against spouses Andres

Pages.

The Special Power of Attorney reads:

" SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

That I, HAIDE LAGROSA-YANCE, Filipino citizen, of

legal age, a resident of New Jersey, do hereby name,

constitute and appoint MARICHEL YANCE-BAUTISTA, of

legal age, resident of Blk. 18, Lot 31, Kalayaan Village,

Pasay City, to be my lawful attorney in fact, to do and

perform the following acts and deeds, to wit:

To represent me in the filing of a civil ease against

Sps. Cesar Pages for recovery of possession involving my

property which is registered under TCT No. 52170; to file

the necessary action, petition or claim and verify the same

and execute the corresponding certification of non-forum

shopping until their final termination, after exhaustion of

all possible appeals; and

To appear and represent me before any court,tribunal, administrative or quasi-judicial body to carry out

the objectives of this authorization. To represent me for

purpose of preliminary conference and/or pre trial

conference in the proper forum for purpose of entering into

amicable settlement; to submit to alternative modes of

dispute resolution; and to enter stipulation or admission of

facts and of documents, among others.

GIVING AND GRANTING, unto my said Attorney-In-

Fact full powers and authority to do and perform all andevery act and things whatsoever requisite or necessary to

be done in and about the premises as full to all intents and

purposes as I might or could be lawfully do if personally

present; and


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HEREBY RATIFYING AND CONFORMING, all that my

said Attorney-In-Fact shall lawfully do or cause to be done

by virtue of these present.

IN WITNESS WHEREOF, I have hereunto set myhand this 17 day of August, 2007, in New York, U.S.A.

HAIDE LAGROSA.YANCE

Principal"

It bears stressing that portions of the SPA in question reads:

To represent me in filing of a civil case against sps.

Cesar Pages for recovery of possession involving myproperty which is registered under TCT No. 52170; to file

the action, petition or claim and verify the same and

execute the corresponding certification of non-forum

shopping until their final termination, after exhaustion of ill

possible appeal.

It is clear from the foregoing that the authorization to execute

the corresponding certification of non-forum shopping is also for the

case to be filed against sps. Cesar Pages.

There is no such authorization against sps. Andres Pages. There

if therefore no valid certification against forum shopping. This case

has to be dismissed. This defect is fatal. This cannot even cured by

submitting another certification against forum shopping.

When the court a quo ruled for the admission of the Special

Power of Attorney, Exh. A, defendants filed a motion for

reconsideration, which reads as follows:

The objection to the Exh. A SPA, was made when the

document was formally offered.

The court a quo not only ruled for admission of Exh. A in

evidence but ruled that the filing of this case against sps. Andres

Pages is authorized by the SPA even though the authorization was

against sps. Cesar Pages only.

2.

Second Assigned Error.

The court a quo erred in reversing

the findings of facts of the Court of

Appeals that there was an argument

sometime in July 1997, prior to the

death of Cesar Yance, between Cesar


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Yance represented by Maria Cristina

Yance by virtue of a Special Power of

Attorney and spouses Andres Pages

to buy the subject property.

Exhibit 7 - Decision of Regional Trial Court Br. 195 by the

Honorable Judge Aida Estrella Macapagal in the case entitled SPS Andres

Pages and Nona Pages, plaintiff versus state of Cesar Yance and Maria

Cristina Yance, defendants docketed or civil case No.99-0241 reads;

Decision

This is a verified complaint for specific performance.

For failure of the defendants to file responsive

pleadings, the motion to declare them in default was

granted and plaintiffs were allowed to present evidence

ex-parte before the Branch Clerk of Court of this Court who

was designated commissioner for that purpose.

Before the commissioner, Atty. Benjamin V. Aritao,

counsel for plaintiffs, marked documents (Exhibits "A" to

"D' and sub-markings) to prove compliance with judicial

requirements and thereafter presented plaintiff AndresPages to testify in Support of the allegation in their

complaint.

Mr. Pages testified that he and his wife, Nona and

the defendants, Cesar Yance and Maria Cristina Yance, are

neighbors and that the latter used to visit them. During

one of the visits of the defendants Maria Cristina, she

offered to sell to them by virtue of a Special Power of

Attorney (Exh. E" and sub-marking) executed by her

father, defendant Cesar, in her favor, properly covered by

Transfer Certificate of Title No. 52170 (Exh. F). The said

property is the same lot as the one situated adjacent to

their' which consist of an area of 180 square meters. He

and his wife accepted defendant Ma. Cristina's offer. The

agreed price was P5,500.00 per square meter. They have

made 18 partial payments as evidenced by the receipts

(Exh. G to G-17) issued to them by defendant Maria

Cristina However, the sale agreement that was reduced

into writing (Exh. H" and sub-markings) was only with

regard to one-half of the property (90 sq.m.) as they

(plaintiffs), were only making partial payments. The otherhalf of the property will be paid only after full payment of

the first half thereof. When they were able to pay in full

the first half of the properly, they could no longer find

defendant Ma Cristina. In view of this, the consulted a

lawyer in order to protect their interest in the said property

and were advised to file an adverse claim on the property


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(Exh. "I" and sub-marking). They also filed the instant

complaint and caused annotation of lis pendens (Exh. "J)

on the title of the subject property. Since defendant Cesar

had already passed away, his estate was impleaded in the

instant complaint. Further, in their need to protect theirinterest, they contracted the services of counsel in the

amount of P50,000.00.

Witness likewise identified all the documents

presented and marked before the commissioner.

The contract entered into between the parties in

this case is a contract to sell involving 90 square meters of

a parcel of land located at Lot 16, Blk 9, Thomas Street,

Multinational Village, Paraaque City, and covered by TCT

52170.It was provided in their written agreement (Exhibit

H) that the seller would execute the deed of sale upon

payment of the purchase price of P495,000.00. But record

show that a contrary to the claim of the plaintiffs the

purchase price has not yet been fully paid. A careful

perusal of the evidence (Exhibits "G"-G-17") presented by

the plaintiffs would reveal that they have only paid the

amount of P495,400.00 which is P5,600.00 short of the

agreed price of P495,000.00.

In a contract to sell real property on installments,the full payment of the purchase price is a positive

suspensive condition, the failure of which is an event that

prevent the obligation of the vendor to convey the title

from acquiring any obligatory force. The transfer of

ownership and title would occur only after full payment of

the purchase price (Leao vs Court of Appeals, 369 SCRA

36).In the case at bar, the failure of the plaintiffs to make

the full payment of the purchase price prevents defendants

obligation to convey title from acquiring any binding force,

hence plaintiffs prayer that defendants be compelled toexecute a deed of sale over the 90 square meter portion of

the property, subject of the contact to sell, cannot be

granted, much less the prayer for the execution of the deed

of sale over the entire property. Suffice it state that there

was not even an iota of evidence presented by the plaintiff

to show that defendants also offered to sell to them the

other half of the subject property.

On appeal to the Court of Appeals, the court of appeals ruled:

DECISION

The Case


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"Before us is an appeal from the Decision of the

Regional Trial Court, Branch 195, Paraaque City Civil Case

No. 99 -0241, disposing as follows:

xxxWHEREFORE, for failure of the

plaintiffs to preponderantly prove their

claims, the same are DENIIED, and the

instant complaint is hereby ordered

DISMISSED.

SO ORDERED.

Paraaque City January 31,2005.

Facts

Sometime in July 1997, herein defendant-appellee, Maria Cristina

Yance, offered to sell to plaintiffs-appellants, spouses Engr. Andes P. Pages

and Nona Pages, by virtue of a Special Power of Attorney, a residential lot,

located at Lot 16, Block 9, Thomas Street, Multinational Village, Paraaque

City, covered by Transfer Certificate of Title No . 52170, with an area of 180

square meters. The lot was registered in the name of Cesar Yance, the late

father of Maria Cristina Yance. Plaintiffs-appellants accepted the offer andthe agreed purchase price was P5,500.00 per square meter.

On December 16, 1997, plaintiffs-appellants and defendant-appellee

Maria Cristina Yance, executed a sale agreement denominated as "Contract

Sell," for the sale of only half of the total area, that is 90 square meters with

the following terms and conditions:

xxx

The BUYER shall pay to the SELLER the agreed

purchase price of the said parcel of land as follows:

a.)A down payment of (101,400.00), One Hundred One

Thousand Four Hundred, Philippine Currency, upon signing

of this contract receipt of which is hereby acknowledged by

the SELLER;

b.) The balance of Three Hundred Ninety Three Thousand Six

Hundred Pesos (393,600.00) shall be paid by the BUYER in

regular intervals or as per need basis by the SELLER withina period of (18) months. Any amount that remains unpaid

on the stipulated due date shall bear a penalty charge of

(24%) per annum until fully paid. The SELLER further may,

upon prior notice to the BUYER increase or decrease the

interest and/or penalty herein from time to time within the

limits of law.


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Real estate taxes and assessment on the subject

parcel of land shall be paid by the BUYER without resource

to the SELLER. Upon compliance of all the conditions

required of the BUYER under this contract, the SELLER shall

execute the requisite deed transferring ownership of theproperty to the formers name.

Such deed shall be registered with Register of

Deeds within 90 days from execution thereof, and the

SELLER shall there upon deliver the covering title to the

BUYER. Expenses incurred for registration, documentary

stamp, transfer tax shall be paid for by the BUYER. Capital

Gains Tax shall be paid for by (sic) the SELLER.

No transfer or assignment of the BUYERS rights and

interest under this contract shall be valid without the

written acknowledgement and consent of the SELLER.

This Contact shall be obligatory and binding upon

the heirs, successors, administrator and assign of the

respective parties.

xxx"

As of the other half plaintiff-appellants will pay the purchase price

thereof after making a full payment of the first half of the property.

After making eighteen (18) partial payments, plaintiffs-appellants

wanted to pay the full purchase price of not only the 90 square meter

portion of the property by said contact to sell, but the whole 180 square

meters thereof, but defendants-appellee, Maria Cristina Yance could no

longer be found. Hence, plaintiffs-appellants instituted a complaint for a

specific performance before the Regional Trial Court, Paraaque City. The

complaint was docketed as Civil Case No. 99-0241.

Defendant-appellee, Maria Cristina Yance, upon motion of plaintiffs-

appellants, was declared in default after the former failed to file any

responsive pleading to the complaint. The case was then referred to the

Clerk of Court, Lilibeth O. Adaga, who was designated as commissioner for

the presentation of evidence ex parte.

The RTC Ruling

Base on the Commissioner's Report, the court a quo rendered a

default judgment and ruled as follows:

xxx


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The contract entered into between the parties in

this case is a contract to sell involving 90 square meters of

a parcel land located at Lot 16, Blk 9, Thomas Street,

Multinational Village, Paraaque City, and covered by TCT

52170.It was provided in their written agreement (ExhibitH) that the seller would execute the deed of sale upon

payment of the purchase of (P495,000.00). But the records

show that contrary to the claim of plaintiffs, the purchase

price has not yet been fully paid. A careful perusal of the

evidence Exhibits G"-G-17) presented by the plaintiffs

would reveal that they have only paid the amount of

P489,400.00 which is short P5,600.00 short of the agreed

price of P495,000.00.

In a contract to sell real property on installment,

the full payment of the purchase price is a positive

suspensive condition, the failure of which is an event that

prevents the obligation of the vendor to convey the title

from acquiring any obligatory force. The transfer of

ownership and title would occur only after full payment of

the purchase price (Leano vs Court of Appeals, 369 SCRA

36). In the case at bar, the failure of the plaintiffs to make

the full payment of the purchase price prevents

defendants' obligation to convey title from acquiring any

binding force, hence plaintiffs prayer that defendant be

compelled to execute a deed of sale over the 90 squaremeters portion of the property, subject of the contract to

sell, cannot be granted, much less the prayer for the

execution of the deed of sale over the entire property.

Suffice it to state that there was not even an iota of

evidence presented by the plaintiffs to show that

defendants also offered to sell to them the other half of the

subject property.

WHEREFORE, for failure of the plaintiffs to

preponderantly prove their claims, the same are DENIED,

and the instant complaint is hereby ordered DISMISSED.

SO ORDERED.

Paraaque City; January 31,2005."

The findings of fact of the Court of Appeals in the said case

entitled sps. Pages vs. Estate of Cesar Yance and Maria Cristina Yance

reads:

Sometime in July 1997, herein defendant-appellee

Maria Cristina Yance offered to sell to plaintiff-appellantspuses Engr Andres and Nona Pages by virtue of a Special

Power of Attorney, a residential lot, located at lot 16, block

9 Thomas Street, Multinational Village, Paraaque City

covered by certificate of title No. 52170 with an area of

180 square meters. The lot was registered in the name of

Cesar Yance, the late father of Maria Cristina Yance,


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plaintiff-appellant accepted the offer and the agreed

purchase price was P5,000.00 per square meter.xxxx

The Court of Appeals decision continuous to state:

After making eighteen (18) partial payments, plaintiff-

appellants wanted to pay the full purchase price of not only the 90

square meter portion of the property by said contract to sell but the

whole 180 square meters thereof, but defendants-appellee, Maria

Cristina could no longer be found. Hence plaintiff-appellants

instituted complaint for a specific performance before the trial court,

Paraaque City. The complaint was docketed as Civil Case No. 99-

0241.

Defendant-appellee, Maria Cristina Yance, upon motion of

plaintiff-appellant was declared in default after the former failed to

file any responsive pleading to the complaint. The case was then

referred to the clerk of court Lilibeth O. Adaga, who was designated

as commissioner for the presentation of evidence ex parte. Based on

the commissioners report, the court a quo rendered a default

judgment and ruled as follows:

3. Third Assigned Error.

The court a quo erred in reversing

the findings of facts of the Court of

Appeals in the case entitled

and

docketed as CA GR CV No. 86145

that there is contract to sell between

the estate of Yance and the

defendants spouses Andres Pages.

The finding of facts of the Court of Appeals are as follows:

Sometime in July 1997, herein defendant-appellee,

Maria Cristina Yance, offered to sell to plaintiffs-appellants,

spouses Engr. Andes P. Pages and Nona Pages, by virtue of

a Special Power of Attorney, a residential lot, located at Lot

16, Block 9, Thomas Street, Multinational Village,

Paraaque City, covered by Transfer Certificate of Title No .52170, with an area of 180 square meters. The lot was

registered in the name of Cesar Yance, the late father of

Maria Cristina Yance. Plaintiffs-appellants accepted the

offer and the agreed purchase price was P5,500.00 per

square meter.


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The Court of Appeals decision also raised the core issues to be

resolved as follows:

The core issue to be resolved is whether or not the

contact denominated as "Contract to Sell", which was

entered by and between herein plaintiffs-appellants and

defendants and defendant-appellee, Maria Cristina, is a

contract to sell or contract of sale.

In a contract to sell, the vendor reserves ownership

of the property and is not to pass until full payment. Om

the other hand, a contract is one of sale, absent any

stipulation therein reserving title over the property to the

vendee until full payment of the purchase price nor giving

the vendor the right to unilaterally rescind the contract incase of non-payment. Thus in a contract of sale, the sale is

absolute, in which title passes to the buyer upon delivery of

the thing sold.

In the instant case, herein plaintiffs-appellants

argued that while their contract was denominated as

contract to sell, it was really a contract of sale since there

was no stipulation reserving ownership of the subject land

until full payment of the purchase price, and because

earnest money was given as part of the purchase price.

xxx

Upon compliance of all the condition required of

the BUYER under this contract, The SELLER shall execute

the requisite deed transferring ownership of the property

to the formers name.

Xxx

One of the conditions in the contact is the fullpayment of the purchase price which is P495,000.00.

Before the fulfillment of such condition, ownership over the

thing sold retains with the seller, Maria Cristina Yance. We

note that herein plaintiffs-appellants, spouses Andres

Pages and Nona Pages, could not even categorically state

the total amount of money that they had paid to the seller,

Maria Cristina Yance, as would entitle the former to be

transferred with ownership of the thing sold. The trial court

found that herein plaintiffs-appellants paid only

P489,400.00. We do not find any evidence to disturb suchfactual finding of the court a quo. Thus, be that as it may,

the full purchase price has yet to be paid by herein

plaintiff-appellants since they paid only P489,400.00,

which is P5,600.00 short of the agreed price. Hence, the

seller, herein defendant-appelee, Maria Cristina Yance still


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retains ownership over the property sold until full payment

of the purchase price hereof.

However, we note that the seller, Maria Cristina

Yance, seems to have no more intention, without justcause, of continuing with her contract herein plaintiffs-

appellants, spouses Andres Pages and Nona Pages, as the

former could no longer be located. The least that herein

plaintiffs-appellants could do, for them to be entitled to

specific performance, that is, that a contract of sale over

the 90 square meter portion of the property be executed in

their favor, is to make a consignation of the balance of the

purchase price by depositing it at the disposal of judicial

authority.

The above Court Rulings in the RTC and affirmed and

undisturbed by the findings of the Court 0f Appeals show that

Plaintiffs cause of action is barred by prior judgment under the

doctrine of res judicata and in connection therewith, the Supreme

Court has made the following pronouncements applicable to the

instant case.

a. Res Judicata refers to the rule of the final judgment or decree on the

merits by a court of competent jurisdiction is conclusive of the rightsof the parties or privies in all later suits on points and matters

determined in the former suit. It extends only to the facts and

condition as they existed at the time the judgment was rendered and

the legal rights and relation of the parties fixed by the fact so

determined. (Caina v. Court of Appeals, 238 SCRA 252 (1994).

b. The doctrine of res judicata is more than a mere rule of law, more

even that an important principle of public policy and it is not too

much to say that it is a fundamental concept in the organization ofevery jural society. (Sumaong v. Regional Trial Court Br. XXXI,

GUIIMBA, NUEVA ECIJA 215 SCRA 136 (1992).

c. It is to the interest of the public that there should be an end to

litigation by the parties over a subject and fairly adjudicated, and an

individual should not be vexed twice for the same cause (Cartlet v.

Court of Appeals. 275 SCRA 97 (1997).

The principle of res judicata actually embraces two differentconcepts: (1) bar by former judgment and (2) conclusiveness of

judgment.

d.

The doctrine of res judicata has two aspects: (a) the effect of a

judgment as a bar to the prosecution of a second action upon the


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same claim, demand or cause of action; and (b) preclude relitigation

of a particular fact of issues in another action between the same

parties on a different claim or caused action.

e. Bar by former judgment bars prosecution of a second action upon

the claim, demand or cause of action, demand or cause of action

while conclusive of action bars relitigation of facts or issues in

another litigation between the same parties on a different claim or

cause of action. (Calalang v. Register of Deeds, 231 SCRA 88 (1994).

f.

There is "bar by former judgment" when, between the first case

where the judgment was rendered, and the second case where the

judgment is invoked, there is identity of parties, subject matter andcause of action while there is "conclusiveness of judgment where

there is only identity of parties but there is no identity of cause of

action, the judgment being conclusive in the second case only as to

those matters actually and directly controverted and determine, and

not as to matters merely involved therein. (Islamic Directorate of the

Philippines v. Court of Appeals, 272 SCRA 454 (1997).

There is conclusiveness of judgment where between the first

case in the judgment is rendered, the second case wherein suchjudgment is invoke, there is no identity of cause of action, the

judgment being conclusive is the second case only as to those matter

actually and directly controverted and determined and not as to

matters merely involved therein.

g.

A party cannot evade the application of the rule of res judicata by

adopting a different method of presenting his case. (Cartlet v. Court

of Appeals, 195 SCRA 659 (1991).

4.

Fourth Assigned Error.

The court a quo erred in holding that

plaintiff as the registered owner of

the property has the better right to

possess the property

notwithstanding the fact that there

is an adverse claim annotated at the

back of the title respecting a

contract to sell in favor of the

defendants spouses Andres Pages,

the existence of which is confirmed

ruled by the Court of Appeals in said

CA GR No. .


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While the case was dismissed because there is a balance of

P5,600.00 in the payment of the purchase price, the dismissal does

not mean that there is no contract to sell. There is a contract to sell

but because there is a balance of P5,600.00 it did not give rise to theright to compel by specific performance defendant estate of Yance,

that is why the Court of Appeals suggested consignation of the

balance of P5,600.00

The dismissal clearly does not mean that the findings of the

RTC Br. 195 as no longer affirmed by the Court of Appeals when it

ruled that:

On the contrary that finding of the coexistence of the saidcontract to sell remains but the prayer for the specific cannot be

granted for the reason that there was a balance of P5,600.00. that is

why the case for specific performance was dismissed.

But the Regional Trial Court grievously erred when it recalled

that because of the dismissal of the specific performance case there

was contract to sell.

Even though the case was dismissed, the notice of les pendensis proof that plaintiff-appellees claim that they do not know of the

case as not correct. Notice of les pendens in notice to the whole

world, including of the pending of the action.

5.

The court a quo erred in ordering

defendants to vacate the property in

question, to pay plaintiff damages,

attorneys fees and cost.

The claim of defendants-appellants is valid and legal in the

light of the foregoing reversible error committed by the Regional

Trial Court. Hence, defendants-appellants should not be made to pay

any form of damages.

Defendants-appellants believe in good faith that they have a

right to the reliefs for under the facts and the law on the following:

a.)

They have a right to rely of the finality of judgment of the Court ofAppeals finding. The existence of the contract to sell between the

estate of Yance and them.

b.)No action has been brought to declare the said decision of the

Court of Appeals null and void.


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Court:

: Thats why.

Atty. Allaga:

: Yes, Your Honor.

Court:

: The validity, it seems that the line of questioning that you are

propounding, you will be short of attacking of assailing the

validity of that Contract to Sell. But the existence of the

Contract to Sell, which is already a factual. It is already a

res judicata. It should be admitted.

Atty. Allaga:

: Admitted Your Honor.

Court:

: But you are now trying to assail the validity of that?

Atty. Allaga:

: Yes, Your Honor.

Court:

: Is that your contention?

Atty. Allaga:

: Yes, Your Honor, because, Your Honor please.

Court:

: Okay, I will allow that, but just limit to the fact that the

execution of the Contract to Sell transpired after the death

of Cesar.

Atty. Allaga:

: Yes, Your Honor.


23/23

Court:

: If that is so, whatever conclusions that maybe arrived at, just

leave it to the court, because that will be already a legal

question.

Atty. Allaga:

: Yes, Your Honor, we submit, your Honor.

183212153 appellants brief 2

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