Moralidad v. Pernes; 497 SCRA 533 1. That it is my desire that Mr. and Mrs. Diosdado M.
Pernes may
J. Garcia; August 3, 2007
Facts:
1. At the heart of this controversy is a parcel of land located in
Davao City and registered in the name of P Mercedes Moralidad
under Transfer Certificate of Title (TCT) No. T-123125 of the
Registry of Deeds of Davao City.
2. P taught in Davao City, Quezon City and Manila. While teaching
in Manila, she had the good fortune of furthering her studies at
the University of Pennsylvania, U.S.A. While schooling, she was
offered to teach at the Philadelphia Catholic Archdiocese,
which she did for seven (7) years. Thereafter, she worked at the
Mental Health Department of said University for the next
seventeen (17) years.
3. During those years, she would come home to the Philippines to
spend her two-month summer vacation in her hometown in
Davao City. Being single, she would usually stay in Mandug,
Davao City, in the house of her niece, respondent Arlene
Pernes, a daughter of her younger sister, Rosario
4. Back in the U.S.A. sometime in 1986, she received news from
Arlene that Mandug at the outskirts of Davao City was infested
by NPA rebels and many women and children were victims of
crossfire between government troops and the insurgents.
Shocked and saddened about this development, she
immediately sent money to Araceli, Arlenes older sister, with
instructions to look for a lot in Davao City where Arlene and her
family could transfer and settle down. This was why she bought
the parcel of land covered by TCT No. T-123125.
5. P acquired the lot property initially for the purpose of letting
Arlene move from Mandug to Davao City proper but later she
wanted the property to be also available to any of her kins
wishing to live and settle in Davao City.
6. P executed a document contains among others, declaring:
build their house therein and stay as long as they like;
2. That anybody of my kins who wishes to stay on the
aforementioned real property should maintain an atmosphere of
cooperation, live in harmony and must avoid bickering with one
another;
3. That anyone of my kins may enjoy the privilege to stay therein
and may avail the use thereof. Provided, however, that the same is not
inimical to the purpose thereof;
4. That anyone of my kins who cannot conform with the wishes
of the undersigned may exercise the freedom to look for his own;
5. That any proceeds or income derived from the
aforementioned properties shall be allotted to my nearest kins who
have less in life in greater percentage and lesser percentage to those
who are better of in standing.
7. Following her retirement in 1993, petitioner came back to the
Philippines to stay with the respondents on the house they
build on the subject property.
8. Eventually, their relationship turned sour. As a result of this,
Petitioner brought the matter to the local barangay
luponwhere she lodged a complaint for slander, harassment,
threat and defamation against the Pernes family.
9. Thus the luponapparently ordered the Pernes family to vacate
petitioners property but not after they are reimbursed for the
value of the house they built thereon. Unfortunately, the
parties could not agree on the amount, thus prolonging the
impasse between them.
10. Then, on August 3, 1998, P filed with the MTCC of Davao City
an unlawful detainer suit against the R spouses. Petitioner
alleged that she is the registered owner of the land on which
the respondents built their house; that through her counsel,
she sent the respondent spouses a letter demanding them to
vacate the premises and to pay rentals therefor, which the
respondents refused to heed.
11. the respondents alleged having entered the property in
question, building their house thereon and maintaining the
 same as their residence with petitioners full knowledge and
express consent. To prove their point, they invited attention to
her written declaration of July 21, 1986, supra, wherein she
expressly signified her desire for the spouses to build their
house on her property and stay thereat for as long as they like.
12. The MTCC, resolving the ejectment suit in petitioners favor,
declared that the respondent spouses, although builders in
good faith vis--visthe house they built on her property, cannot
invoke their bona fides as a valid excuse for not complying with
the demand to vacate. To the MTCC, respondents continued
possession of the premises turned unlawful upon their receipt
of the demand to vacate, such possession being merely at
petitioners tolerance, and sans any rental.
13. Dissatisfied, the respondent spouses appealed to the RTC of
Davao City.
14. In the meantime, petitioner filed a Motion for Execution
Pending Appeal. The motion was initially granted by the RTC in
its Order of February 29, 2000, but the Order was later
withdrawn and vacated by its subsequent Order dated May 9,
20006 on the ground that immediate execution of the appealed
decision was not the prudent course of action to take, consid
ering that the house the respondents constructed on the
subject property might even be more valuable than the land
site.
15. Eventually, in a decision7 dated September 30, 2000, the RTC
reversed that of the MTCC, holding that respondents
possession of the property in question was not, as ruled by the
latter court, by mere tolerance of the petitioner but rather by
her express consent. It further ruled that Article 1678 of the
Civil Code on reimbursement of improvements introduced is
inapplicable since said provision contemplates of a lessor-
lessee arrangement, which was not the factual milieu obtaining
in the case. Instead, the RTC ruled that what governed the
parties relationship are Articles 448 and 546 of the Civil Code
and accordingly dismissed petitioners appeal,
16. P appealed to CA, to the CA the unlawful detainer suit
presupposes the cessation of respondents right to possess. The
CA further ruled that what governs the rights of the parties is
the law on usufruct but petitioner failed to establish that
respondents right to possess had already ceased. On this
premise, the CA concluded that the ejectment suit instituted by
the petitioner was premature. The appellate court thus
affirmed the appealed RTC decision.
17. Hence, the petition.
ISSUE: WHETHER OR NOT ARTICLES 448 AND 546 AND THE PROVISIONS
OF THE CODE ON USUFRUCT SHOULD BE APPLIED INSTEAD OF ARTICLE 1678
OF THE CIVIL CODE.
WON THE RELATIONSHIP BETWEEN THE P AND R IS ONE OF THAT
USUFRUCT AND THAT THE SAME HAD BEEN TERMINATED OR
EXTINGUISHED?
RULING:
1. The Court is inclined to agree with the CA that what was
constituted between the parties herein is one of usufruct over
a piece of land, with the petitioner being the owner of the
property upon whom the naked title thereto remained and the
respondents being two (2) among other unnamed
usufructuaries who were simply referred to as petitioners kin.
The Court, however, cannot go along with the CAs holding that
the action for unlawful detainer must be dismissed on ground
of prematurity.
2. Usufruct is defined under Article 562 of the Civil Code in the
following wise:
ART. 562. Usufruct gives a right to enjoy the property of another
with the obligation of preserving its form and substance, unless the
title constituting it or the law otherwise provides.
3. Usufruct, in essence, is nothing else but simply allowing one to
enjoy anothers property.9 It is also defined as the right to enjoy
the property of another temporarily, including both the jus
utendiand the jus fruendi,10 with the owner retaining the jus
disponendi or the power to alienate the same.11
 4. It is undisputed that petitioner, in a document dated July 21,
1986, supra, made known her intention to give respondents
and her other kins the right to use and to enjoy the fruits of her
property. There can also be no quibbling about the respondents
being given the right to build their own house on the property
and to stay thereat as long as they like. Paragraph #5 of the
same document earmarks proceeds or income derived from
the aforementioned properties for the petitioners nearest
kins who have less in life in greater percentage and lesser
percentage to those who are better of (sic) in standing. The
established facts undoubtedly gave respondents not only the
right to use the property but also granted them, among the
petitioners other kins, the right to enjoy the fruits thereof. We
have no quarrel, therefore, with the CAs ruling that usufruct
was constituted between petitioner and respondents. It is thus
pointless to discuss why there was no lease contract between
the parties.
5. However, determinative of the outcome of the ejectment case
is the resolution of the next issue, i.e., whether the existing
usufruct may be deemed to have been extinguished or
terminated. If the question is resolved in the affirmative, then
the respondents right to possession, proceeding as it did from
their right of usufruct, likewise ceased.
6. The term or period of the usufruct originally specified provides
only one of the bases for the right of a usufructuary to hold and
retain possession of the thing given in usufruct. There are other
modes or instances whereby the usufruct shall be considered
terminated or extinguished. For sure, the Civil Code
enumerates such other modes of extinguishment:
ART. 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a contrary intention clearly
appears;
(2) By expiration of the period for which it was constituted, or by the
fulfillment of any resolutory condition provided in the title creating the
usufruct
(3) By merger of the usufruct and ownership in the same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting the
usufruct;
(7) By prescription.
7. In this case, The document executed by the petitioner dated
July 21, 1986 constitutes the title creating, and sets forth the
conditions of, the usufruct. Paragraph #3 thereof states [T]hat
anyone of my kins may enjoy the privilege to stay therein and
may avail the use thereof. Provided, however, that the same is
not inimical to the purpose thereof (Emphasis supplied). What
may be inimical to the purpose constituting the usufruct may
be gleaned from the preceding paragraph wherein petitioner
made it abundantly clear that anybody of my kins who wishes
to stay on the aforementioned property should maintain an
atmosphere of cooperation, live in harmony and must avoid
bickering with one another. That the maintenance of a
peaceful and harmonious relations between and among kin
constitutes an indispensable condition for the continuance of
the usufruct is clearly deduced from the succeeding Paragraph
#4 where petitioner stated [T]hat anyone of my kins who
cannot conform with the wishes of the undersigned may
exercise the freedom to look for his own. In fine, the
occurrence of any of the following: the loss of the atmosphere
of cooperation, the bickering or the cessation of harmonious
relationship between/among kin constitutes a resolutory
condition which, by express wish of the
petitioner, extinguishes the usufruct.
8. the Court rules that the continuing animosity between the
petitioner and the Pernes family and the violence and
humiliation she was made to endure, despite her advanced age
and frail condition, are enough factual bases to consider the
usufruct as having been terminated.
9. the relationship between the petitioner and respondents
respecting the property in question is one of owner and
usufructuary.
10. Accordingly, respondents claim for reimbursement of the
improvements they introduced on the property during the
effectivity of the usufruct should be governed by applicable
statutory provisions and principles on usufruct.
11. If the builder is a usufructuary, his rights will be governed by Arts.
579 and 580. In case like this, the terms of the contract and the
pertinent provisions of law should govern.
12. By express provision of law, respondents, as usufructuary, do
not have the right to reimbursement for the improvements
they may have introduced on the property. We quote Articles
579 and 580 of the Civil Code:
Art. 579. The usufructuary may make on the property held in
usufruct such useful improvements or expenses for mere pleasure as
he may deem proper, provided he does not alter its form or
substance; but he shall have no right to be indemnified therefor. He
may, however, remove such improvements, should it be possible to
do so without damage to the property. (Emphasis supplied.)
Art. 580. The usufructuary may set off the improvements he may
have made on the property against any damage to the same.
13. Respondents will have to be ordered to vacate the premises
without any right of reimbursement. If the rule on
reimbursement or indemnity were otherwise, then the
usufructuary might, as an author pointed out, improve the
owner out of his property.
14. The Rs may, however, remove or destroy the improvements
they may have introduced thereon without damaging the
petitioners property.
15. Petition is granted.
HEMEDES V. CAS RULING
1. In the present case, we hold that private respondents
have failed to produce clear, strong, and convincing
evidence to overcome the positive value of the Deed of
Conveyance of Unregistered Real Property by
Reversiona notarized document. The mere denial of
its execution by the donor will not suffice for the
purpose.
2. In upholding the deed of conveyance in favor of Maxima
Hemedes, we must concomitantly rule that Enrique D.
Hemedes and his transferee, Dominium, did not acquire
any rights over the subject property. Justa Kausapin
sought to transfer to her stepson exactly what she had
earlier transferred to Maxima Hemedesthe
ownership of the subject property pursuant to the first
condition stipulated in the deed of donation executed by
her husband.
3. Thus, the donation in favor of Enrique D. Hemedes is
null and void for the purported object thereof did not
exist at the time of the transfer, having already been
transferred to his sister. Similarly, the sale of the
30
subject property by Enrique D. Hemedes to Dominium
is also a nullity for the latter cannot acquire more rights
than its predecessor-in-interest and is definitely not an
innocent purchaser for value since Enrique D. Hemedes
did not present any certificate of title upon which it
relied.
4. The declarations of real property by Enrique D.
Hemedes, his payment of realty taxes, and his being
designated as owner of the subject property in the
cadastral survey of Cabuyao, Laguna and in the records
of the Ministry of Agrarian Reform office in Calamba,
Laguna cannot defeat a certificate of title, which is an
absolute and indefeasible evidence of ownership of the
 property in favor of the person whose name appears
therein. Particularly, with regard to tax declarations
31
and tax receipts, this Court has held on several
occasions that the same do not by themselves
conclusively prove title to land.
5. We come now to the question of whether or not R & B
Insurance should be considered an innocent purchaser
of the land in question. At the outset, we note that both
the trial court and appellate court found that Maxima
Hemedes did in fact execute a mortgage over the subject
property in favor of R & B Insurance. This finding shall
not be disturbed because, as we stated earlier, it is a
rule that the factual findings of the trial court,
especially when affirmed by the Court of Appeals, are
entitled to respect, and should not be disturbed on
appeal.33
6. In holding that R & B Insurance is not a mortgagee in
good faith, public respondent stated that the fact that
the certificate of title of the subject property indicates
upon its face that the same is subject to an
encumbrance, i.e.usufructuary rights in favor of Justa
Kausapin during her lifetime or widowhood, should
have prompted R & B Insurance to . . . investigate
further the circumstances behind this encumbrance on
the land in dispute, but which it failed to do. Also,
public respondent considered against R & B Insurance
the fact that it made it appear in the mortgage contract
that the land was free from all liens, charges, taxes and
encumbrances. 34
7. R & B Insurance alleges that, contrary to public
respondents ruling, the presence of an encumbrance on
the certificate of title is not reason for the purchaser or
a prospective mortgagee to look beyond the face of the
certificate of title.
8. The owner of a parcel of land may still sell the same
even though such land is subject to a usufruct; the
buyers title over the property will simply be restricted
by the rights of the usufructuary. Thus, R & B
Insurance accepted the mortgage subject to the
usufructuary rights of Justa Kausapin. Furthermore,
even assuming that R & B Insurance was legally obliged
to go beyond the title and search for any hidden defect
or inchoate right which could defeat its right thereto, it
would not have discovered anything since the mortgage
was entered into in 1964, while the Kasunduan
conveying the land to Enrique D. Hemedes was only
entered into in 1971 and the affidavit repudiating the
deed of conveyance in favor of Maxima Hemedes was
executed by Justa Kausapin in 1981. 35
9. We sustain petitioner R & B Insurances claim that it is
entitled to the protection of a mortgagee in good faith.
10. It is a well-established principle that every person
dealing with registered land may safely rely on the
correctness of the certificate of title issued and the law
will in no way oblige him to go behind the certificate to
determine the condition of the property. An innocent
36
purchaser for value is one who buys the property of
37
another without notice that some other person has a
right to or interest in such property and pays a full and
fair price for the same at the time of such purchase or
before he has notice of the claim of another person. 38
11. The annotation of usufructuary rights in favor of Justa
Kausapin upon Maxima Hemedes OCT does not impose
upon R & B Insurance the obligation to investigate the
validity of its mortgagors title. Usufruct gives a right to
enjoy the property of another with the obligation of
preserving its form and substance. The usufructuary is
39
entitled to all the natural,industrial and civil fruits of
the property and may personally enjoy the thing in
40
usufruct, lease it to another, or alienate his right of
usufruct, even by a gratuitous title, but all the contracts
he may enter into as such usufructuary shall terminate
upon the expiration of the usufruct. 41
12. Clearly, only the jus utendi and jus fruendi over the
property is transferred to the usufructuary. The owner
42
of the property maintains the jus disponendi or the
power to alienate, encumber, transform, and even
destroy the same. This right is embodied in the Civil
43
Code, which provides that the owner of property the
usufruct of which is held by another, may alienate it,
although he cannot alter the propertys form or
substance, or do anything which may be prejudicial to
the usufructuary. 44
13. There is no doubt that the owner may validly mortgage
the property in favor of a third person and the law
provides that, in such a case, the usufructuary shall not
be obliged to pay the debt of the mortgagor, and should
the immovable be attached or sold judicially for the
payment of the debt, the owner shall be liable to the
usufructuary for whatever the latter may lose by reason
thereof.45
14. Based on the foregoing, the annotation of usufructuary
rights in favor of Justa Kausapin is not sufficient cause
to require R & B Insurance to investigate Maxima
Hemedes title, contrary to public respondents ruling,
for the reason that Maxima Hemedes ownership over
the property remained unimpaired despite such
encumbrance. R & B Insurance had a right to rely on
the certificate of title and was not in bad faith in
accepting the property as a security for the loan it
extended to Maxima Hemedes.
15. Even assuming in gratia argumenti that R & B
Insurance was obligated to look beyond the certificate
of title and investigate the title of its mortgagor, still, it
would not have discovered any better rights in favor of
private respondents. Enrique D. Hemedes and
Dominium base their claims to the property upon the
Kasunduan allegedly executed by Justa Kausapin in
favor of Enrique Hemedes. As we have already stated
earlier, such contract is a nullity as its subject matter
was inexistent. Also, the land was mortgaged to R & B
Insurance as early as 1964, while the Kasunduan was
executed only in 1971 and the affidavit of Justa
Kausapin affirming the conveyance in favor of Enrique
D. Hemedes was executed in 1981. Thus, even if R & B
Insurance investigated the title of Maxima Hemedes, it
would not have discovered any adverse claim to the land
in derogation of its mortgagors title. We reiterate that
at no point in time could private respondents establish
any rights or maintain any claim over the land.
16. It is a well-settled principle that where innocent third
persons rely upon the correctness of a certificate of title
and acquire rights over the property, the court cannot
just disregard such rights. Otherwise, public confidence
in the certificate of title, and ultimately, the Torrens
system, would be impaired for everyone dealing with
registered property would still have to inquire at every
instance whether the title has been regularly or
irregularly issued. Being an innocent mortgagee for
46
value, R & B Insurance validly acquired ownership over
the property, subject only to the usufructuary rights of
Justa Kausapin thereto, as this encumbrance was
properly annotated upon its certificate of title.
17. As regards R & B Insurances prayer that Dominium be
ordered to demolish the warehouses or that it be
declared the owner thereof since the same were built in
bad faith, we note that such warehouses were
constructed by Asia Brewery, not by Dominium.
However, despite its being a necessary party in the
present case, the lower courts never acquired
jurisdiction over Asia Brewery, whether as a plaintiff or
defendant, and their respective decisions did not pass
upon the constructions made upon the subject property.
Courts acquire jurisdiction over a party plaintiff upon
the filing of the complaint, while jurisdiction over the
person of a party defendant is acquired upon the service
of summons in the manner required by law or by his
 voluntary appearance. As a rule, if a defendant has not
been summoned, the court acquires no jurisdiction over
his person, and any personal judgment rendered
against such defendant is null and void. In the present
50
case, since Asia Brewery is a necessary party that was
not joined in the action, any judgment rendered in this
case shall be without prejudice to its rights. 51
18. As to its claim for moral damages, we hold that R & B
Insurance is not entitled to the same for it has not
alleged nor proven the factual basis for the same.
Neither is it entitled to exemplary damages, which may
only be awarded if the claimant is entitled to moral,
temperate, liquidated or compensatory damages. R & 52
B Insurances claim for attorneys fees must also fail.
The award of attorneys fees is the exception rather
than the rule and counsels fees are not to be awarded
every time a party wins a suit. Its award pursuant to
article 2208 of the Civil Code demands factual, legal
and equitable justification and cannot be left to
speculation and conjecture. Under the circumstances
53
prevailing in the instant case, there is no factual or legal
basis for an award of attorneys fees.
19. WHEREFORE, the assailed decision of public
respondent and its resolution dated February 22, 1989
are REVERSED. We uphold petitioner R & B
Insurances assertion of ownership over the property in
dispute, as evidenced by TCT No. 41985, subject to the
usufructuary rights of Justa Kausapin, which
encumbrance has been properly annotated upon the
said certificate of title. No pronouncement as to costs.
SO ORDERED.
FABIE V. GUTIERREZ DAVIDS RULING
1. According to the decision, copy of which was submitted
to this Court as Appendix F of the petition and as Annex
1 of the answer, there was an agreement, dated March
31, 1942, between the usufructuary Josefa Fabie and
the owner Juan Grey whereby the latter as
agent collected the rents of the property in question and
delivered the same to the usufructuary after deducting
the expenses for taxes, repairs, insurance premiums,
and the expenses of collection;
2. that in the month of October 1948 the usufructuary
refused to continue with the said agreement of March
31, 1942, and thereafter the said case arose between the
parties, which by stipulation approved by the court was
settled among them in the following manner:
Beginning with the month of September 1944 the
usufructuary shall collect all the rents of the property
in question; shall, at her own cost and expense, pay all
the real estate taxes, special assessments, and
insurance premiums, including the documentary
stamps, and make all the necessary repairs on the
property; and in case of default on her part the owner
shall have the right to do any or all of those things, in
which event he shall be entitled to collect all subsequent
rents until the amounts paid by him are fully satisfied,
after which the usufructuary shall again collect the
rents.
3. It was further stipulated by the parties and decreed by
the court that "the foregoing shall be in effect during the
term of the usufruct and shall be binding on the
successors and assigns of each of the parties."
4. Construing said judgment in the light of the ninth
clause of the will of the deceased Rosario Fabie y Grey,
 which was quoted in the decision and by which Josefa
Fabie was made the usufructuary during her lifetime of
the income of the property in question, we find that the
said usufructuary has the right to administer the
property in question.
5. All the acts of administrationto collect the rents for
herself, and to conserve the property by making all
necessary repairs and paying all the taxes, special
assessments, and insurance premiums thereonwere
by said judgment vested in the usufructuary.
6. The pretension of the respondent Juan Grey that he is
the administrator of the property with the right to
choose the tenants and to dictate the conditions of the
lease is contrary to both the letter and the spirit of the
said clause of the will, the stipulation of the parties, and
the judgment of the court.
7. He cannot manage or administer the property after all
the acts of management or administration have been
vested by the court, with his consent, in the
usufructuary.
8. He admitted that before said judgment he had been
collecting the rents as agent of the usufructuary under
an agreement with the latter.
9. What legal justification or valid excuse could he have to
claim the right to choose the tenant and fix the amount
of the rent when under the will, the stipulation of the
parties, and the final judgment of the court it is not he
but the usufructuary who is entitled to said rents?
10. As long as the property is properly conserved and
insured he can have no cause for complaint, and his
right in that regard is fully protected by the terms of the
stipulation and the judgment of the court above
mentioned.
11. To permit him to arrogate to himself the privilege to
choose the tenant, to dictate the conditions of the lease,
and to sue when the lessee fails to comply therewith,
would be to place the usufructuary entirely at his
mercy.
12. It would place her in the absurd situation of having a
certain indisputable right without the power to protect,
enforce, and fully enjoy it.
13. One more detail needs clarification: In her complaint
for desahucio Josefa Fabie alleges that she needs the
premises in question to live in, as her former residence
was burned.
14. Has she the right under the will and the judgment in
question to occupy said premises herself?
15. We think that, as a corollary to her right to all the rent,
to choose the tenant, and to fix the amount of the rent,
she necessarily has the right to choose herself as the
tenant thereof, if she wishes to; and, as long as she
fulfills her obligation to pay the taxes and insure and
conserve the property properly, the owner has no
legitimate cause to complain.
16. As Judge Nable of the municipal court said in his
decision, "the pretension that the plaintiff, being a mere
usufructuary of the rents, cannot occupy the property,
is illogical if it be taken into account that that could not
have been the intention of the testatrix."
17. We find that upon the pleadings, the undisputed facts,
and the law the action instituted in the municipal court
by the petitioner Josefa Fabie against the respondent
Ngo Soo is one of unlawful detainer, within the original
jurisdiction of said court, and that therefore Judges
Dizon and Gutierrez David of the Court of First
Instance erred in holding otherwise and in quashing the
case upon appeal
18. The next question to determine is the propriety of the
remedy availed of by the petitioner in this Court.
Judging from the allegations and the prayer of the
petition, it is in the nature of certiorari and mandamus,
to annul the order of dismissal and to require the Court
of First Instance to try and decide the appeal on the
 merits. Under section 3 of Rule 67, when any tribunal conclusions we have reached above that the rights
unlawfully neglects the performance of an act which the between him as owner and Josefa Fabie as usufructuary
law specifically enjoins as a duty resulting from an of the property in question have been definitely settled
office, and there is no other plain, speedy, and adequate by final judgment in civil case No. 1659 of the Court of
remedy in the ordinary course of law, it may be First Instance of Manila in the sense that the
compelled by mandamus to do the act required to be usufructuary has the right to administer and possess
done to protect the rights of the petitioner. If, as we find, the property in question, subject to certain specified
the case before the respondent judge is one of unlawful obligations on her part.
detainer, the law specifically requires him to hear and 20. The orders of dismissal of the respondent Court of First
decide that case on the merits, and his refusal to do so Instance, dated September 22 and October 31, 1945, in
would constitute an unlawful neglect in the the desahucio case (No. 71149) are set aside and that
performance of that duty within section 3 of Rule 67. court is directed to try and decide the said case on the
Taking into consideration that the law requires that an merits: with the costs hereof against the respondent
unlawful detainer case be promptly decided (sections 5 Ngo Soo.
and 8, Rule 72), it is evident that an appeal from the
order of dismissal would not be a speedy and adequate
remedy; and under the authority
of Cecilio vs. Belmonte (48 Phil., 243, 255),
and Aguilar vs. Cabrera and Flameo (G. R. No.
49129), we hold that mandamus lies in this case.
19. The contention of the petitioner that the appeal 01 the
intervenor Juan Grey was filed out of time is not well
founded. Although said respondent received copy of the
decision of the municipal court on August 3, 1945,
according to the petitioner (on August 6, 1945,
according to the said respondent), it appears from the
sworn answer of the respondent Ngo Soo in this case
that on August 8, he filed a motion for reconsideration,
which was granted in part on August 18. Thus, if the
judgment was modified on August 18, the time for the
intervenor Juan Grey to appeal therefrom did not run
until he was notified of said judgment as modified, and
since he filed his notice of appeal on August 23, it would
appear that his appeal was filed on time. However, we
observe in this connection that said appeal of the
intervenor Juan Grey, who chose not to answer the
petition herein, would be academic in view of the