[No. 11658. February 15, 1918.

]
LEUNG YEE, plaintiff and appellant, vs. FRANK L. STRONG MACHINERY COMPANY and J.
G. WILLIAMSON, defendants and appellees.

1. 1.CHATTEL MORTGAGE; REGISTRY OF MORTGAGE .COVERING REAL PROPERTY.The

sole purpose and object of the chattel mortgage registry is to provide for the registry of "chattel
mortgages," and transfers thereof, that is to say, mortgages of personal property executed in the
manner and form prescribed in the statute. Neither the original registry in a chattel mortgage
registry of an instrument purporting to be a chattel mortgage of a building and the machinery
installed therein, nor the an

________________

1 16 Off. Gaz., 911.

645

VOL. 37, FEBRUARY 15, 1918 6

45
Leung Yee vs. F. L. Strong Machinery Co. and
Williamson.

1. notation in that registry of the sale of the mortgaged property, had any effect whatever so far as
the building is concerned.

1. 2.ID.; ID.A factory building is real property, and the mere fact that it is mortgaged and sold,
separate and apart from the land on which it stands, in no wise changes its character as real
property.

1. 3.VENDOR AND PURCHASER; REGISTRY OF TITLE;GOOD FAITH.The rights secured under

the provisions of article 1473 of the Civil Code to that one of two purchasers of the same real
estate, who has secured and inscribed his title thereto in the Land Registry,. do not accrue unless
such inscription is made in good faith.

1. 4.ID.; SEPARATE PURCHASERS; DETERMINATION OF RIGHTS.The respective rights of two

or more separate purchasers of the same real estate from the same owner in case none of them
has secured an inscription of his title in the land registry in good faith, are to be determined in
accord with the third, and not the second paragraph of that article.

1. 5.ID.; GOOD FAITH.One who purchases real estate with knowledge of a defect or lack of title in
his vendor cannot claim that he has acquired title thereto in good faith, as against the true owner
of the land or of an interest therein; and the same rule must be applied to one who has knowledge
of facts which should have put him upon such inquiry and investigation as might be necessary to
acquaint him with the defects in the title of his vendor.

1. 6.ID.; ID.A purchaser cannot close his eyes to facts which should put a reasonable man upon his
guard and then claim that he acted in good faith under the belief that there was no defect in the
title of the vendor.
 1. 7.ID.; ID.Good faith, or the lack of it, is in its last analysis a question of intention; but in
ascertaining the intention by which one is actuated on a given occasion, we are necessarily
controlled by the evidence as to the conduct and outward acts by which alone the inward motive
may, with safety, be determined.

1. 8.ID.; ID."Good faith, or the want of it, is not a visible, tangible fact that can be seen or touched
but rather a state or condition of mind which can only be judged of by actual or fancied tokens. or
signs."

APPEAL from a judgment of the Court of First Instance of Cavite. Revilla, J.

The facts are stated in the opinion of the court.
Booram & Mahoney for appellant.
Williams, Ferrier & SyCip for appellees.
646
646 PHILIPPINE REPORTS ANNOTATED
Leung Yee vs. F. L. Strong Machinery Co. and Williamson.

CARSON, J.:

The "Compaa Agrcola Filipina" bought a considerable quantity of rice-cleaning machinery

from the defendant machinery company, and executed a chattel mortgage thereon to secure
payment of the purchase price. It included in the mortgage deed the building of strong materials
in which the machinery was installed, without any reference to the land on which it stood. The
indebtedness secured by this instrument not having been paid when it fell due, the mortgaged
property was sold by the sheriff, in pursuance of the terms of the mortgage instrument, and was
bought by the machinery company. The mortgage was registered in the chattel mortgage
registry, and the sale of the property to the machinery company in satisfaction of the mortgage
was annotated in the same registry on December 29, 1913.
A few weeks thereafter, on or about the 14th of January, 1914, the "Compaa Agrcola
Filipina" executed a deed of sale of the land upon which the building stood to the machinery
company, but this deed of sale, although executed in a public document, was not registered. This
deed makes no reference to the building erected on the land and would appear to have been
executed for the purpose of curing any defects which might be found to exist in the machinery
company's title to the building under the sheriff's certificate of sale. The machinery company
went into possession of the building at or about the time when this sale took place, that is to say,
the month of December, 1913, and it has continued in possession ever since.
At or about the time when the chattel mortgage was executed in favor of the machinery
company, the mortgagor, the "Compaa Agrcola Filipina" executed another mortgage to the
plaintiff upon the building, separate and apart from the land on which it stood, to secure
payment of the balance of its indebtedness to the plaintiff under a contract for the construction of
the building. Upon the failure of the mortgagor to pay the amount of the indebtedness secured by
the mortgage, the plaintiff secured judg-
647
VOL. 37, FEBRUARY 15, 1918 647
Leung Yee vs. F. L. Strong Machinery Co. and Williamson.
ment for that amount, levied execution upon the building, bought it in at the sheriff s sale on or
about the 18th of December, 1914, and had the sheriff's certificate of sale duly registered in the
land registry of the Province of Cavite.
 At the time when the execution was levied upon the building, the defendant machinery
company, which was in possession, filed with the sheriff a sworn statement setting up its claim
of title and demanding the release of the property from the levy. Thereafter, upon demand of the
sheriff, the plaintiff executed an indemnity bond in favor of the sheriff in the sum of P12,000, in
reliance upon which the sheriff sold the property at public auction to the plaintiff, who was the
highest bidder at the sheriff's sale.
This action was instituted by the plaintiff to recover possession of the building from the
machinery company.
The trial judge, relying upon the terms of article 1473 of the Civil Code, gave judgment in
favor of the machinery company, on the ground that the company had its title to the building
registered prior to the date of registry of the plaintiff's certificate.
Article 1473 of the Civil Code is as follows:
"If the same thing should have been sold to different vendees, the ownership shall be transferred to the
person who may have first taken possession thereof in good faith, if it should be personal property.
"Should it be real property, it shall belong to the person acquiring it who first recorded it in the
registry.
"Should there be no entry, the property shall belong to the person who first took possession of it in
good faith, and, in the absence thereof, to the person who presents the oldest title, provided there is good
faith."
The registry here referred to is of course the registry of real property, and it must be apparent
that the annotation or inscription of a deed of sale of real property in a chattel mortgage registry
cannot be given the legal effect of an inscription in the registry of real property. By its express
terms, the Chattel Mortgage Law contemplates
648
648 PHILIPPINE REPORTS ANNOTATED
Leung Yee vs. F. L. Strong Machinery Co. and Williamson.
and makes provision for mortgages of personal property; and the sole purpose and object of the
chattel mortgage registry is to provide for the registry of "Chattel mortgages," that is to say,
mortgages of personal property executed in the manner and form prescribed in the statute. The
building of strong materials in which the rice-cleaning machinery was installed by the
"Compaa Agrcola Filipina" was real property, and the mere fact that the parties seem to have
dealt with it separate and apart from the land on which it stood in no wise changed its character
as real property. It follows that neither the original registry in the chattel mortgage registry of
the instrument purporting to be a chattel mortgage of the building and the machinery installed
therein, nor the annotation in that registry of the sale of the mortgaged property, had any effect
whatever so far as the building was concerned.
We conclude that the ruling in favor of the machinery company cannot be sustained on the
ground assigned by the trial judge. We are of opinion, however, that the judgment must be
sustained on the ground that the agreed statement of facts in the court below discloses that
neither the purchase of the building by plaintiff nor his inscription of the sheriff's certificate of
sale in his favor was made in good faith, and that the machinery company must be held to be the
owner of the property under the third paragraph of the above cited article of the code, it
appearing that the company first took possession of the property; and further, that the building
and the land were sold to the machinery company long prior to the date of the sheriff's sale to the
plaintiff.
 It has been suggested that since the provisions of article 1473 of the Civil Code require "good
faith," in express terms, in relation to "possession" and "title," but contain no express
requirement as to "good faith" in relation to the "inscription" of the property in the registry, it
must be presumed that good faith is not an essential requisite of registration in order that it may
have the effect contemplated in this article. We cannot agree with this contention.
649
VOL. 37, FEBRUARY 15, 1918 649
Leung Yee vs. F. L. Strong Machinery Co. and Williamson.
It could not have been the intention of the legislator to base the preferential right secured under
this article of the code upon an inscription of title in bad faith. Such an interpretation placed
upon the language of this section would open wide the door to fraud and collusion. The public
records cannot be converted into instruments of fraud and oppression by one who secures an
inscription therein in bad f faith. The force and effect given by law to an inscription in a public
record presupposes the good faith of him who enters such inscription; and rights created by
statute, which are predicated upon an inscription in a public registry, do not and cannot accrue
under an inscription "in bad faith," to the benefit of the person who thus makes the inscription.
Construing the second paragraph of this article of the code, the supreme court of Spain held in
its sentencia of the 13th of May, 1908, that:
"This rule is always to be understood on the basis of the good faith mentioned in the first paragraph;
therefore, it having been found that the second purchasers who record their purchase had knowledge of
the previous sale, the question is to be decided in accordance with the following paragraph." (Note 2, art.
1473, Civ. Code, Medina and Maraon [1911] edition.)
"Although article 1473, in its second paragraph, provides that the title of conveyance of -ownership of
the real property that is first recorded in the registry shall have preference, this provision must always be
understood on the basis of the good faith mentioned in the first paragraph; the legislator could not have
wished to strike it out and to sanction bad faith, just to comply with a mere formality which, in given
cases, does not obtain even in real disputes between third persons." (Note 2, art. 1473, Civ. Code, issued
by the publishers of the La Revista, de los Tribunales, 13th edition.)

The agreed statement of facts clearly discloses that the plaintiff, when he bought the building at
the sheriff's sale and inscribed his title in the land registry, was duly notified that the machinery
company had bought the building from
650
650 PHILIPPINE REPORTS ANNOTATED
Leung Yee vs. F. L. Strong Machinery Co. and Williamson.
plaintiff's judgment debtor; that it had gone into possession long prior to the sheriff's sale; and
that it was in possession at the time when the sheriff executed his levy. The execution of an
indemnity bond by the plaintiff in favor of the sheriff, after the machinery company had filed its
sworn claim of ownership, leaves no room for doubt in this regard. Having bought in the building
at the sheriff's sale with full knowledge that at the time of the levy and sale the building had
already been sold to the machinery company by the judgment debtor, the plaintiff cannot be said
to have been a purchaser in good f faith; and of course, the subsequent inscription of the sheriff's
certificate of title must be held to have been tainted with the same defect.
Perhaps we should make it clear that in holding that the inscription of the sheriff's certificate
of sale to the plaintiff was not made in good faith, we should not be understood as questioning, in
any way, the good faith and genuineness of plaintiff's claim against the "Compaa Agrcola
Filipina." The truth is that both the plaintiff and the defendant company appear to have had just
and righteous claims against their common debtor. No criticism can properly be made of the
exercise of the utmost diligence by the plaintiff in asserting and exercising his right to recover
the amount of his claim from the estate of the common debtor. We are strongly inclined to believe
that in procuring the levy of execution upon the factory building and in buying it at the sheriff's
sale, he conceived that he was doing no more than he had a right to do under all the
circumstances, and it is highly possible and even probable that he thought at that time that he
would be able to maintain his position in a contest with the machinery company. There was no
collusion on his part with the common debtor, and no thought of the perpetration of a fraud upon
the rights of another, in the ordinary sense of the word. He may have hoped, and doubtless he
did hope, that the title of the machinery company would not stand the test of an action in a court
of law; and if later developments had confirmed his unfounded hopes, no one could question the
legality or the propriety of the course he adopted.
651
VOL. 37, FEBRUARY 15, 1918 651
Leung Yee vs. F. L. Strong Machinery Co. and Williamson.
But it appearing that he had full knowledge of the machinery company's claim of ownership
when he executed the indemnity bond and bought in the property at the sheriff's sale, and it
appearing further that the machinery company's claim of ownership was well founded, he cannot
be said to have been an innocent purchaser for value. He took the risk and must Stand by the
consequences; and it isin this sense that we find that he was not a purchaser in good faith.
One who purchases real estate with knowledge of a defect or lack of title in his vendor cannot
claim that he has acquired title thereto in good faith as against the true owner of the land or of
an interest therein; and the same rule must be applied to one who has knowledge of facts which
should have put him upon such inquiry and investigation as might be necessary to acquaint him
with the defects in the title of his vendor. A purchaser cannot close his eyes to facts which should
put a reasonable man upon his guard, and then claim that he acted in good faith under the belief
that there was no defect in the title of the vendor. His mere refusal to believe that such defect
exists, or his willful closing of his eyes to the possibility of the existence of a defect in his vendor's
title, will not make him an innocent purchaser for value, if it afterwards develops that the title
was in fact defective, and it appears that he had such notice of the defect as would have led to its
discovery had he acted with that measure of precaution which may reasonably be required of a
prudent man in a like situation. Good faith, or the lack of it, is in its last analysis a question of
intention; but 'in ascertaining the intention by which one is actuated on a given occasion, we are
necessarily controlled by the evidence as to the conduct and outward acts by which alone the
inward motive may, with safety, be determined. So it is that "the honesty of intention," "the
honest lawful intent," which constitutes good faith implies a "freedom from knowledge and
circumstances which ought to put a person on inquiry," and so it is that proof of such knowledge
overcomes the presumption of good faith in which the
652
652 PHILIPPINE REPORTS ANNOTATED
Asido vs. Guzman.
courts always indulge in the absence of proof to the contrary. "Good faith, or the want of it, is not
a visible, tangible fact that can be seen or touched, but rather a state or condition of mind which
can only be judged of by actual or fancied tokens or signs." (Wilder vs. Gilman, 55 Vt., 504,
505; Cf. Cardenas vs. Miller, 108 Cal., 250; Breaux-Renoudet, Cypress Lumber Co. vs. Shadel, 52
La. Ann., 2094-2098; Pinkerton Bros. Co. vs. Bromley, 119 Mich., 8, 10, 17.)
 We conclude that upon the grounds herein set forth the disposing part of the decision and
judgment entered in the court below should be affirmed with the costs of this instance against
the appellant. So ordered.

464 SUPREME COURT REPORTS ANNOTATED

Yap vs. Tanada
No. L-32917. July. 18,1988. *

JULIAN S. YAP, petitioner, vs. HON. SANTIAGO O. TANADA, etc., and GOULDS PUMPS
INTERNATIONAL (PHIL.), INC., respondents.
Remedial Law; Judgments; Finale and executory judgmentOnce a judgment has become final and
executory, no appeal can be taken therefrom or from any other subsequent orders and the execution
thereof becomes a matter of right.
Same; Same; New Trial; Motion for new trial must be accompanied by an affidavit of merits.When
a motion for new trial is founded on Section l(a), Rule 37 of the Rules of Court, i.e., fraud, accident,
mistake or excusable negligence which ordinary prudence could not have guarded against and by reason
of which the aggrieved party has probably been impaired in his rights, it should be accompanied by an
affidavit of merits. The requirement of such affidavit is

________________

3 Lesaca v. Cuevas, 125 SCRA 384.

* FIRST DIVISION.

465

VOL. 163, JULY 18, 1988 46

5
Yap vs. Tanada
essential because obviously a new trial would be a waste of the court's time if the complaint turns out
to be groundless or the defense ineffective.
Same; Same; Postponement; Refusal ofjudge to grant postponement.The refusal of a trial judge to
grant postponement on the ground of exploring possibility of an amicable settlement does not constitute
grave abuse of discretion or serious mistake, there having been dilatory tactics attributable to the
movant. A possible compromise (at least in general or preliminary terms) is certainly most appropriate for
consideration at the pre-trial.
Same; Same;Appeals; Period of Appeal.The time during which a motion to set aside the judgment
or order or for a new trial has been pending shall be deducted from the pei'iod of appeal, unless such
motion fails to satisfy the requirements of Rule 37.
Same; Same; Default; Failure to appear at the pretrial.Defendant's faiiure to appear at the pre-trial
without justification and despite notice, which caused the declaration of his default, is a waiver of his
right to controvert the plaintiffs proof and of his right to prove the averments of his answer, inclusive of
the counterclaim therein pleaded.

PETITION for certiorari to review the orders of the Court of First Instance of Cebu City, Br. V.
Tanada, J.

The facts are stated in the opinion of the Court.

Paterno P. Natinga for private respondent.
NARVASA, J.:

The petition for review on certiorari at bar involves two (2) Orders of respondent Judge
Tafiada in Civil Case No. 10984. The first, dated September 16, 1970, denied petitioner Yap's
1

mqtion to set aside execution sale and to quash alias writ of execution. The second, dated
November 21,1970, denied Yap's motion for reconsideration. The issues concerned the propriety
of execution of a judgment claimed to be "incomplete, vague and non-final," and the denial of
petitioner's application to
________________

1 Then presiding Judge of Branch V of the Court of First Instance of Cebu City.

466
466 SUPREME COURT REPORTS ANNOTATED
Yap vs. Tanada
prove and recover damages resulting from alleged irregularities in the process of execution.
The antecedents will take some timein the telling. The case began in the City Court of Cebu
with the filing by Goulds Pumps International (Phil.), Inc. of a complaint against Yap and his 2

wife, seeking recovery ofPl,459.30 representing the balance of the price and installation cost of a
3

water pump in the latter's premises. Tftie case resulted in a judgment by the City Court on
4

November 25,1968, reading as follows:

"When this case was called for trial today, Atty. Paterno Natinga appeared for the plaintiff (Goulds) and
informed the court that he is ready for trial. However, none of the defendants appeared despite notices
having been served upon them.
"Upon petition of Atty. Natinga, the plaintiff is hereby allowed to present its evidence ex-parte.
"After considering the evidence of the plaintiff, the court hereby renders judgment in favor of the
plaintiff and against the defendant (Yap), ordering the latter to pay to the former the sum ofPl,459.30
with interest at the rate of 12% per annum until fully paid, computed from August 12,1968, date of the
filing of the complaint; to pay the sum of P364.80 as reasonable attorney's fees, which is equivalent to
25% of the unpaid principal obligation; and to pay the costs, if any."
Yap appealed to the Court of First Instance. The appeal was assigned to the sala of respondent
Judge Tanada. For failure to appear for pre-trial on August 28, 1968, this setting being
intransferable since the pre-trial had already been once postponed at his instance, Yap was 5

declared in default by Order of Judge Tanada dated August 28,1969, reading as follows: 6

_________________

2 Annex E, petition, pp. 34-35, Rollo.

3 However, Mrs. Minerva V. Yap was subsequently dropped from the complaint.
4 Yap's answer (rollo, pp. 36 et seq) put up the defense that the purchase document did not reflect his real agreement
with Goulds, and he had made several complaints about the pump to no avail. Goulds' claim is that the examination of the
pump showed it to be in good working order, but the Yaps had refused to attest thereto despite being present during the
examination (rollo, pp. 72 et seq).
5 Infra: footnote No. 1, p. 3.
6 Rollo, p. 188.

467
VOL. 163, JULY 18, 1988 467
 Yap vs. Tailada
"When this case was called for pre-trial this morning, the plaintiff and counsel appeared, but neither the
defendants nor his counsel appeared despite the fact that they were duly notified of the pre-trial set this
morning. Instead he filed an Ex-Parte Motion for Postponement which this Court received only this
morning, and on petition of counsel for the plaintiff that the Ex-Parte Motion for Postponement was not
filed in accordance with the Rules of Court he asked that the same be deriied and the defendants be
declared in default; x x the motion for the plaintiff being well-grounded, the defendants are hereby
declared in default and the Branch Clerk of Court x x is hereby authorized to receive evidence for the
plaintiff and x x submit his report within ten (10) days after reception of evidence."

Goulds presented evidence exparte; and judgment by default was rendered the following day by
Judge Tanada requiring Yap to pay to Goulds (1) Pl,459.30 representing the unpaid balance of
the pump purchased by him; (2) interest of 12% per annum thereon until fully paid; and (3) a
sum equivalent to 25% of the amount due as attorney's fees and costs and other expenses in
prosecuting the action. Notice of the judgment was served on Yap on September 1,1969. 7

On September 16, 1969 Yap filed a motion for reconsideration. In it he insisted that his8

motion for postponement should have been granted since it expressed his desire to explore the
possibility of an amicable settlement; that the court should give the parties time to arrive at an
amicable settlement failing which, he should be allowed to present evidence in support of his
defenses (discrepancy as to the price and breach of warranty). The motion was not verified or
accompanied by any separate affidavit. Goulds opposed the motion. Its opposition drew attention 9

to the eleventh-hour motion for postponement of Yap which had resulted in the cancellation of
the prior hearing of June 30, 1969 despite Goulds' vehefnent objection, and the re-setting thereof
on August 28,1969 with intransferable character; it averred that Yap had again sought postpone-
________________

7 Id., p. 10.
8 Id., pp. 41-42.
9 Id., pp. 43 et seq. An additional ground for postponement was that he would be in Barili, Cebu, on the date of the pre-
trial.

468
468 SUPREME COURT REPORTS ANNOTATED
Yap us. Tanada
ment of this last hearing by another eleventh-hour motion on the plea that an amicable
settlement would be explored, yet he had never up to that time ever broached the matter, and 10

that this pattern of seeking to obtain last-minute postponements was discernible also in the
proceedings before the City Court. In its opposition, Goulds also adverted to the examination
made by it of the pump, on instructions of the City Court, with a view to remedying the defects
claimed to exist by Yap; but the examination had disclosed the pump's perfect condition. Yap's
motion for reconsideration was denied by Order dated October 10, 1969, notice of which was
received by Yap on October4,1969. 11

On October 15,1969 Judge Tanada issued an Order granting Goulds' Motion for Issuance of
Writ of Execution dated October 14,1969, declaring the reasons therein alleged to be
meritorious. Yap forthwith filed an "Urgent Motion for Reconsideration of Order" dated October
12

17,1969, contending that the judgment had not yet become final, since contrary to Goulds' view,
13

his motion for reconsideration was notp/'o forma for lack of an affidavit of merit, this not being
required under Section l(a) of Rule 37 of the Rules of Court upon which his motion was grounded.
Goulds presented an oppositioh dated October 22, 1969. It pointed out that in his motion for
14

reconsideration Yap had claimed to have a valid defense to the action, i.e., "x x discrepancy as to
price and breach of seller's warranty," in effect, that there was fraud on Goulds' part; Yap's
motion for reconsideration should therefore have been supported by an affidavit of merit
respecting said defenses; the absence thereof rendered the motion for reconsideration fatally
defective with the result that its filing did not interrupt the running of the period of appeal. The
opposition also drew attention to the failure of the motion for reconsideration to specify the
fmdings or eonclusions in the judgment claimed to be contrary to law or
________________

10 It appears that the pump was delivered and installed at the Yaps' premises in December, 1967: Rollo, pp. 34 et seq.
11 Rollo, p. 10.
12 Id.,p. 114.
13 ld.,p. 115.
14 ld.,p. 117.

469
VOL. 163, JULY 18, 1988 469
Yap us. Tanada
not supported by the evidence, making it a pro forma motion also incapable of stopping the
running of the appeal period. On October 23, 1969, Judge Tafiada denied Yap's motion for
reconsideration and authorized execution of the judgment. Yap sought reconsideration of this
15

order, by another motion dated October 29, 1969. This motion was denied by Order dated
16

January 26,1970. Again Yap moved for reconsideration, and again was rebuffed, by Order dated
17

April 28,1970. 18

In the meantime the Sheriff levied on the water pump in question, and by notice dated 19

November 4, 1969, scheduled the execution sale thereof 011 November 14,1969. But in view of 20

the pendency of Yap's motion for reconsideration of October 29,1969, suspension of the sale was
directed by Judge Tafiada in an order dated November 6,1969. 21

"Counsel for the plaintiff is hereby given 10 days time to answer the Motion, dated October 29,1969, from
receipt of this Order and in the meantime, the Order of October 23,1969, insofar as it orders the sheriff to
enforce the writ of execution is hereby suspended."
It appears however that a copy of this Order was not transmitted to the Sheriff "through
oversight, inadvertence and pressure of work" of the Branch Clerk of Court. So the Deputy 22

Provincial Sheriffwent ahead with the scheduled auction sale and sold the property levied on to
Goulds as the highest bidder. He later submitted the requisite report to the Court dated
23

November 17,1969, as well as the "SherifFs Return of

24

_________________

15 Id.,p. 11.
16 Id., p. 124 et seq. The motion reiterated prior arguments and in addition, contained a "Specification of fmdings not
supported by evidence" and a "Specification of conclusions contrary to law." An opposition thereto was filed under date of
Nov. 27, 1969 (Rollo, p. 128)
17 Id.,p. 133.
18 Id.,p. 135.
19 Id., pp. 52, 53.
 20 Id.,p. 54.
21 Id., p. 56, SEE paragraphs 18 and 19, petition.
22 Rollo, pp. 137,134,
23 Id., p. 131. The Certificate of Sale is dated November 14,1969.
24 Id.,p. 123.

470
470 SUPREME COURT REPORTS ANNOTATED
Yap us. Tailada
Service" dated February 13, 1970, in both of which it was stated that execution had been
25

"partially satisfied." It should be observed that up to this time, February, 1970, Yap had not
bestirred himself to take an appeal from the judgm.ent ofAugust 29, 1969.
On May 9, 1970 Judge Tariada ordered the issuance of an alias writ of execution on Goulds' ex
parte motion therefor. Yap received notice of the Order on June 11. Twelve (12) days later, he
26

filed a "Motion to Set Aside Execution Sale and to Quash Alias Writ of Execution." As regards
27

the original, partial execution of the judgment, he argued that

1. 1)"the issuance of the writ of execution on October 16, 1969 was contrary to law, the
judgment sought to be executed not being final and executory;" and
2. 2)"the sale was made without the notice required by Sec. 18, Rule 39, of the New Rules of
Court," i.e., notice by publication in case of execution sale of real property, the pump and
its accessories being immovable because attached to the ground with character of
permanency (Art. 415, Civil Code).

And with respect to the alias writ, he argued that it should not have issued because

1. 1)"the judgment sought to be executed is null and void" as "it deprived the defendant of his
day in court" and "of due process;"
2. 2)"said judgment is incomplete and vague" because there is no starting point for
computation of the interest imposed, or a specification of the "other expenses incurred in
prosecuting this case" which Yap had also been ordered to pay;
3. 3)"said judgment is defective* because it contains no statement of facts but a mere recital
of the evidence; and
4. 4)"there has been a change in the situation of the parties which makes execution unjust
and inequitable" because Yap suffered damages by reason of the illegal execution.

________________

25 Id., p. 57.
26 Par. 21, petition, p. 12, Rollo.
27 Rollo, pp. 22, et seq.

471
VOL. 163, JULY 18, 1988 471
Yap us. Tanada
Goulds filed an opposition on July 6,1970. Yap's motion was thereafter denied by Order dated
September 16, 1970. Judge Tanada pointed out that the motion had "become moot and academic"
since the decision of August 29, 1969, "received by the defendant on September 1, 1969 had long
become fmal when the Order for the Issuance of a Writ of Execution was promulgated on October
15, 1969." His Honor also stressed that
"The defendant's Motion for Reconsideration of the Court's decision was in reality one for new trial.
Regarded as motion for new trial it should allege the grounds for new trial, provided for in the Rules of
Court, to be supported by affidavit of merits; and this the defendant failed to-do. If the defendant
sincerely desired for an opportunity to submit to an amicable settlement, which he failed to do
extrajudicially despite the ample time before him, he should have appeared in the pre-trial to achieve the
same purpose."
Judge Tanada thereafter promulgated another Order dated September 21, 1970 granting a
motion of Goulds for completion of execution of the judgment of August 29, 1969 to be
undertaken by the City Sheriff of Cebu. Once more, Yap sought reconsideration. He submitted a
"Motion for Reconsideration of Two Orders" dated October 13, 1970, seeking the setting aside not
28

only of this Order of September 21,1970 but also that dated September 16,1970, denying his
motion to set aside execution dated June 23, 1970. He contended that the Order of September 21,
1970 (authorizing execution by the City Sheriff) was premature,since the 30-day period to appeal
from the earlier order of September 16, 1970 (denying his motion to set aside) had not yet
expired. He also reiterated his view that his motion for reconsideration dated September 15, 1969
did not require that it be accompanied by an affidavit of merits. This last motion was also denied
for "lack of merits," by Order dated November 21,1970. 29

On December 3, 1970, Yap filed a "Notice of Appeal" manifesting his intention to appeal to the
Supreme Court oncertiorari only on questions of law, "from the Order x x of September
________________

28 Id., pp. 30 et seq.

29 Id., p. 142.

472
472 SUPREME COURT REPORTS ANNOTATED
Yap vs. Tanada
16,1970 x x and from the Order x x of November 21,1970, x x pursuant to sections 2 and 3 of
Republic Act No. 5440." He filed his petition for review with this Court on January 5, 1971, after
obtaining an extension therefor. 30

The errors of law he attributes to the Court a quo are the following: 31

1. 1)refusing to invalidate the execution pursuant to its Order of October 16, 1969 although
the judgment had not then become fmal and executory and despite its being incomplete
and vague;
2. 2)ignoring the fact that the execution sale was carried out although it (the Court) had
itself ordered suspension of execution on November 6,1969;
3. 3)declining to annul the execution sale of the pump and accessories subject of the aetion
although made without the requisite notice prescribed for the sale of immovables; and
4. 4)refusing to allow the petitioner to prove irregularities in the process of execution which
had resulted in damages to him.

Notice of the Trial Court's judgment was served on Yap on September 1,1969. His motion for
reconsideration thereof was filed 15 days thereafter, on September 16,1969. Notice of the Order
denying the motion was received by him on October 14, 1969. The question is whether or not the
motion for reconsiderationwhich was not verified, or accompanied by an affidavit of merits
(setting forth facts constituting his meritorious defenses to the suit) or other sworn statement
(stating facts excusing his failure to appear at the pre-trial)was pro forma and consequently
had not interrupted the running of the period of appeal. It is Yap's contention that his motion
was not pro forma for lack of an affidavit of merits, such a document not being required by
Section 1 (a) of Rule 37 of the Rules of Court upon which his motion was based. This is incorrect,
Section 2, Rule 37 precisely requires that when the motion for new trial is founded on Section
1 (a), it should be accompanied by an affidavit of merit.
_________________

30 Granted by Resolution dated January 4,1971, for 15 days from December 8 (Rollo, p. 5)
31 Rollo, pp. 5-6.

473
VOL. 163, JULY 18, 1988 473
Yap vs. Tanada
"x x x
"When the motion is made for the causes mentioned in subdivisions (a) and (b) of the preceding
section, it shall be proved in the manner provided for proof of motions. Affidavit or affidavits ofmerits
shall also be attached to a inotion for the cause mentioned in subdivision (a) which may be rebutted by
counter-affidavits.
"x x x." 32

Since Yap himself asserts that his motion for reconsideration is grounded on Section 1 (a) of Rule
37, i.e., fraud, accident, mistake or excusable negligence which ordinary prudence could not
33

have guarded against and by reason of which x x (the) aggrieved party has probably been
impaired in his rights"this being in any event clear from a perusal of the motion which
theorizes that he had "been impaired in his rights" because he was denied the right to present
evidence of his defenses (discrepancy as to price and breach of warranty)it was a fatal omission
to fail to attach to his motion an affidavit of merits, i.e., an affidavit "showing the facts (not
conclusions) constituting the valid x x defense which the movant may prove in case a new trial is
granted." The requirement of such an affidavit is essential because obviously "a new trial would
34

be a waste of the court's time if the complaint turns out to be groundless or the defense
ineffective." 35

In his motion for reconsideration, Yap also contended that since he had expressed a desire to
explore the possibility of an amicable settlement, the Court should have given him time to do so,
instead of declaring him in default and thereafter rendering judgment by default on
Goulds'exparte evidence.
The bona fides of this desire to compromise is however put in doubtby the attendant
circumstances. It was manifested in an
_________________

32 Italics supplied.
33 SEE footnote No. 14, supra.
34 SEE Coombs v. Santos, 24 Phil. 446, 451, cited in Feria, Civil Procedure, 1969 ed., p. 514; see, too, Moran, Comments
on the Rules, 1979 ed., Vol. 2, pp. 214-215, citing numerous cases; parenthetical insertion supplied.
 35 Moran, op. cit., p. 215, citing Vda. de Yulo v. Chua Chuco, et al., 48 O.G. 554; Baguieran v. Court of Appeals, L-14551,
July 31, 1961,2 SCRA 873.

474
474 SUPREME COURT REPORTS ANNOTATED
Yap us. Tanada
eleventh-hour motion for postponement of the pre-trialwhich had been scheduled with
intransferable character since it had already been earlier postponed at Yap's instance; it had
never been mentioned at any prior time since commencement of the litigation; such a possible
compromise (at least in general or preliminary terms) was certainly most appropriate for
consideration at the pre-trial; in fact Yap was aware that the matter was indeed a proper subject
of a pre-trial agenda, yet he sought to avoid appearance at said pre-trial which he knew to be
intransferable in character. These considerations and the dilatory tactics thus far attributable to
himseeking postponements of hearings, or failing to appear therefor despite notice, not only in
the Court of First Instance but also in the City Court proscribe belief in the sincerity of his
avowed desire to negotiate a compromise. Moreover, the disregard by Yap of the general
requirement that "(n)otice of a motion shall be served by the applicant to all parties concerned at
lea^t three (3) days before the hearing thereof, together with a copy of the motion, and of any
affidavits and other papers accompanying it," for which no justification whatever has been
36

offered, also militates against the bona fides of Yap's expressed wish for an amicable settlement.
The relevant circumstances do not therefore justify condemnation, as a grave abuse of discretion,
or a serious mistake, of the refusal of the Trial Judge to grant postponement upon this proferred
ground.
The motion for reconsideration did not therefore interrupt the running of the period of appeal.
The time during which it was pending before the courtfrom September 16,1969 when it was
filed with the respondent Court until October 14, 1969 when notice of the order denying the
motion was received by the movantcould not be deducted from the 30-day period of
appeal. This is the inescapable conclusion from a considera-
37

________________

36 SEE Sections 4, 5 and 6, Rule 15; Manila Surety & Fidelity Co. v. Batu Construction Co., L-16636, June
24,1965; Fulton Insurance Co. v. Manila Railroad Co., L-24263, November 18, 1967, cited in Moran, op cit.,p. 214.
37 BP No. 129 has since reduced the period of appeal to 15 days except in special proceedings or cases where multiple
appeals are allowed.

475
VOL. 163, JULY 18, 1988 475
Yap us. Tanada
tion of Section 3 of Rule 41 which in part declares that, "The tiine during which a motion to set
aside the judgment or order or for a new trial has been pending shall be deducted,unless such
motion fails to satisfy the requirements ofRule 37." 38

Notice of the judgment having been received by Yap on September 1,1969, and the period of
appeal therefrom not having been interrupted by his motion for reconsideration filed on
September 16,1969, the reglementary period of appeal expired thirty (30) days after September
1,1969, or on October 1,1969, without an appeal being taken by Yap. The judgmpnt then became
final and executory; Yap could no longer take an appeal therefrom or from any other subsequent
orders; and execution of judgment correctly issued on October 15,1969, "as a matter of right." 39
 The next point discussed by Yap, that the judgment is incomplete and vague, is not well
taken. It is true that the decision does not fix the starting time of the computation of interest on
the judgment debt, but this is inconsequential since that time is easily determinable from the
opinion, i.e., from the day the buyer (Yap) defaulted in the payment of his obligation, on May 31, 40

1968. The absence of any disposition regarding his counterclaim is also immaterial and does not
41

render the judgment incomplete. Yap's failure to appear at the pre-trial without justification and
despite notice, which caused the declaration of his default, was a waiver of his right to controvert
the plaintiff s proofs and of his right to prove the averments of his answer, inclusive of the
counterclaim therein pleaded. Moreover, the conclusion in the judgment of the merit of the
plaintiffs cause of action was necessarily and at the same time a determination of the absence of
merit of the defendant's claim of untenability of the complaint and of malicious prosecution.
Yap's next argument that the water pump had become immovable property by its being
installed in his residence is also
_________________

38 Italics supplied; see Coombs v. Santos, 24 Phil. 446, 451, and Alfonso v. Bustamante, 98 Phil. 158, cited in Feria, op.
cit, pp. 514515; andCapinpin, et al. v. Isip, L-14018, Aug. 31, 1959, cited in Moran, op. cit.
39 Sec. 1, Rule 39; See Amor v. Jugo, et al., 77 Phil. 703.
40 Rollo, p. 39.
41 Id.,pp.35,193.

476
476 SUPREME COURT REPORTS ANNOTATED
Yap vs. Tafiada
untenable. The Civil Code considers as immovable property, among others, anything "attached to
an immovable in a fixed manner, in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object." The pump does not fit this description. It
42

could be, and was in fact separated from Yap's premises without being broken or suffering
deterioration. Obviously the separation or removal of the pump involved nothing more
complicated than the loosening of bolts or dismantling of other fasteners.
Yap's last claim is that in the process of the removal of the pump from his house, Goulds' men
had trampled on the plants growing there, destroyed the shed over the pump, plugged the
exterior casings with rags and cut the electrical and conduit pipes; that he had thereby suffered
actual- damages in an amount of not less than P2,000.00, as well as moral damages in the sum of
P10,000.00 resulting from his deprivation of the use of his water supply; but the Court had
refused to allow him to prove these acts and recover the damages rightfully due him. Now, as to
the loss of his water supply, since this arose from acts legitimately done, the seizure on execution
of the water pump in enforcement of a final and executory judgment, Yap most certainly is not
entitled to claim moral or any other form of damages therefor.
WHEREFORE, the petition is DENIED and the appeal DISMISSED, and the Orders of
September 16, 1970 and November 21,1970 subject thereof, AFFIRMED in toto.Costs against
petitioner.
Cruz, Gancayco, Grino-Aquino and Medialdea, JJ.,concur.
Petition denied. Appeal dismissed, and orde?*s affirmed.
Note.Where first motion for reconsideration should not result in dismissal of appeal. (Luzon
Concrete Products vs CA 135 SCRA 45