1

APPELLANTS BRIEF

COME NOW, the defendants-Appellants, through counsel, and unto
this Honorable Court of Appeals, submit the following BRIEF in support of
their appeal.

The Notice to File Brief within forty five (45) days from receipt dated
January 28, 2013 was received February 8, 2013. The 45
th
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 in
continuing 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 required
verification 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
2

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 equipment
thereon;

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;

3

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 moral
damages;

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 the
demand 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 Court
most 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.

4

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 ownership
of 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.

5

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 of
whether 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, herein
defendant-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 defendant
spouses.


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 compensate
defendants 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 the
possession 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 of
P50,000.00 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 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
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 is
confirmed 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 Nona
Pages 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 and
every 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 my
hand 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 my
property 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 Andres
Pages 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 other
half 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 their
interest, 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 to
execute 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

13

"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:

xxx
WHEREFORE, 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 and
the 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 within
a 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.
14

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 the
property 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

15

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 (Exhibit
H) 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 square
meters 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-appellant
spuses 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,
16

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.

17

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 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 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 full
payment 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 such
factual 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
18

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 just
cause, 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 rights
of 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 of
every 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 different
concepts: (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
19

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 and
cause 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 such
judgment 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. .

20

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 the
right 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 said
contract 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 pendens
is 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 of
Appeals 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.
21

c.) The instant case is not action to said decision null and void. This is
but a collateral attack which the Regional Trial Court should not
have allowed.

d.) The CA decision affirm that the defendants-appellants have paid
P495,000.00 with only a balance of P5,600.00.


Witness A. Pages:

A : Well, she has a Special Power of Attorney.

Atty. Aritao:

: If your Honor please, this subject matter is already
dethroning the Court of Appeals.

Atty. Aritao:

: The summary of facts are already final. Is he Trying to re-
open the Court of Appeals?

Atty. Allaga:

: No I am just making an emphasis, Your Honor please,
because, the fact is, the Decision was arrived at in view of
the absence of Ma. Cristina Yance. So, no evidence was
actually submitted in favor of Ma. Cristina Yance. And
worse, Your Honor, our client really have absolutely no
idea that there was indeed a case ongoing. Precisely, I
marked the caption in the civil case because my clients
were never informed. This is supposedly a case against the
estate. So, I should have been directed against all the heirs,
Your Honor please. But it was very clear that here, the
defendants knowingly, as far we were concerned, Your
Honor, the defendants knowingly transacted with Ma.
Cristina Yance alone, despite the fact that they knew very
well, Mr. Yance was already dead.

Court:

: Are you saying that. is it your contention, plaintiffs, that
you. You mean the finding of the Court of Appeals that
there was a Contract to Sell?


Atty. Allaga:

: No, Your Honor, but we are just saying that it was entered
into after Mr. Cesar Yance has already died.

22

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

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.