Facts: Philip Romualdez, the petitioner, is a natural born citizen of the Philippines, the son of the

former Governor of Leyte, Benjamin "Kokoy" Romualdez, and nephew of the then First Lady
Imelda Marcos. Sometime in the early part of 1980, the petitioner, in consonance with his decision
to establish his legal residence at Barangay Malbog, Tolosa, Leyte, caused the construction of his
residential house therein. He soon thereafter also served as Barangay Captain of the place where
he voted. After the people power, petitioner left the country and fled to America for asylum. When
Romualdez arrived in the Philippines in December 1991, he did not delay his return to his
residence at Malbog, Tolosa, Leyte. During the registration of voters conducted by the COMELEC
on February 1, 1992 for the Synchronized National and Local Election scheduled for May 11,
1992, petitioner registered himself anew as a voter at Precinct No. 9 of Malbog, Tolosa, Leyte. On
February 21, 1992, Donato Advincula, respondent, filed a petition with the MTC of Tolosa, Leyte,
praying that Romualdez be excluded from the list of voters in Precinct No. 9 of Malbog, Tolosa,
Leyte, under BP 881 and RA 7166 alleging that Romualdez was a resident of Massachusetts,
U.S.A.; that his profession and occupation was in the U.S.A.; that he had just recently arrived in
the Philippines; and that he did not have the required one-year residence in the Philippines and the
six-month residence in Tolosa to qualify him to register as a voter in Barangay Malbog, Tolosa,
Leyte. Romualdez contends that he has been a resident of Tolosa, Leyte, since the early 1980's,
and that he has not abandoned his said residence by his physical absence therefrom during the
period from 1986 up to the third week of December 1991. After due hearing, the Municipal Court
of Tolosa, Leyte held in favor of the petitioner Advincula then appealed the case to the respondent
court then it rendered the assailed decision that the petitioner is disqualified to register as a voter
for the 1992 elections and hereby reverses the decision of the lower court in toto. Hence, this
recourse.

Issue: Whether or not the respondent court erred in finding the petitioner to have voluntarily left
the country and abandoned his residence in Malbog, Tolosa, Leyte.

Issue: Whether petitioner is qualified to be a registered voter in Malbog, Tolosa, Leyte despite his
sudden departure to the U.S?

Ruling:

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term
"residence" as used in the election law is synonymous with "domicile", which imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention." 19 "Domicile" denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to return. 20 That residence, in the
case of the petitioner, was established during the early 1980's to be at Barangay Malbog, Tolosa,
Leyte. Residence thus acquired, however, may be lost by adopting another choice of domicile. In
order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the
old domicile. 21 In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period
of time; the change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual. 22

The political situation brought about by the "People's Power Revolution" must have truly caused
great apprehension to the Romualdezes, as well as a serious concern over the safety and welfare of
the members of their families. Their going into self-exile until conditions favorable to them would
have somehow stabilized is understandable. Certainly, their sudden departure from the country
cannot be described as "voluntary," or as "abandonment of residence" at least in the context that
these terms are used in applying the concept of "domicile by choice."

We have closely examined the records, and we find not that much to convince us that the
petitioner had, in fact, abandoned his residence in the Philippines and established his domicile
elsewhere.

It must be emphasized that the right to vote is a most precious political right, as well as a bounden
duty of every citizen, enabling and requiring him to participate in the process of government so as
to ensure that the government can truly be said to derive its power solely from the consent of the
governed. 23 We, therefore, must commend respondent Advincula for spending time and effort
even all the way up to this Court, for as the right of suffrage is not to be abridged, so also must we
safeguard and preserve it but only on behalf of those entitled and bound to exercise it.

WHEREFORE, finding merit on the petition the same is hereby GRANTED DUE COURSE; of
the Decision of the respondent Regional Trial Court dated 03 April 1992 is hereby REVERSED
and SET ASIDE, and the Decision of the Municipal Trial Court dated 28 February 1992 is hereby
REINSTATED and the Temporary Restraining Order issued by the Court in this case is
correspondingly made PERMANENT. No pronouncement as to costs.

The Court held that YES, Petitioner is qualified as a registered voter because he is still considered
a resident of Malbog, Tolosa, Leyte.

Stating that, the political situation brought about by people’s Power Revolution must have caused
great fear to the Romualdezes, and as having concern over the safety of their families, their self-
exile is understandable. Moreover, their sudden departure cannot be described as ‘voluntary’ or
‘abandonment of residence’.

It must be emphasized that the right to vote is a most precious political right; a bounden duty of
every citizen enabling them to participate in the government process to ensure the will of the
people.

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-48140 May 4, 1942

SINFOROSO PASCUAL, plaintiff-appellant,

vs.
PONCIANO S. PASCUAL, ET AL., defendants-appellees.

Celedonio Bernardo for appellant.

Ortega & Ortega for appellees.

MORAN, J.:

On September 14, 1940, while the proceedings for the probate of the will of the deceased Eduarda
de los Santos were pending in the Court of First Instance of Rizal plaintiff, Sinforoso Pascual,
instituted in the Court of First Instance of Pampanga against Ponciano S. Pascual and others, an
action for the annulment of a contract of sale of a fishpond situated in Lubao, Pampanga,
supposedly executed without consideration by said deceased in her lifetime in favor of the
defendants. The complaint alleges that plaintiff and defendants are all residents of Malabon, Rizal,
and are legitimate children of the testratix, Eduarda de los Santos. Defendants filed of a motion to
dismiss, alleging want of cause of action, limitation of action, wrong venue and pendency of
another action. The trial court granted the motion on the ground that the action should have been
brought by the executor or administrator of the estate left by the deceased, and directed the
plaintiff to amend his complaint within five days. Plaintiff filed an amended complaint, the
amendment consisting in that "el demandado Miguel S. Pascual ha sido nombrado por el Juzgado
de Primera Instancia de Rizal albacea testamentario de los bienes de la finada Eduarda de los
Santos. en el asunto de la testamentaria de dicha finada." The trial court declaring that such
amendment did not cure the insufficiency of the complaint, dismissed the action. It is from this
order of dismissal that plaintiff interposed his appeal.

Under Rule 86, section 1, of the new Rules of Court, actions for the recovery or protection of the
property or rights of the deceased for causes which survive may be prosecuted or defended by his
executor or administrator. Upon the commencement of the testate or intestate proceedings the
heirs have no standing in court in actions of the above character, except when the executor or
administrator is unwilling or fails or refuses to act, in which event to heirs may act in his place.
(Pomeroy on Code Remedies, p. 158, 11 R C. L. p. 262; 21 Am. Jur., 940) Here, the fictitious sale
is alleged to have been made to the defendants, one of them, Miguel S. Pascual, being the executor
appointed by the probate court. Such executor naturally would not bring an action against himself
for recovery of the fishpond. His refusal to act may, therefore, be implied. And this brings the case
under the exception. It should be noted that in the complaint the prayer is that the fishpond be
delivered not to the plaintiff but to the executor, thus indicating that the action is brought in behalf
of the estate of the deceased.

Appellees contend that there is here a wrong venue. They argue that an action for the annulment of
a contract of sale is a personal action which must be commenced at the place of residence of either
the plaintiff or the defendant, at the election of the plaintiff (Rule 5, sec. 1, Rules of Court), and, in
the instant case, both plaintiff and defendants are residents of Malabon, Rizal, but the action was
commenced in the Court of First Instance of Pampanga. It appearing, however, that the sale is
alleged to be fictitious, with absolutely no consideration, it should be regarded as a non-existent,
not merely null, contract. (8 Manresa, Comentarios al Codigo Civil Español, 2nd ed., pp. 766-
770.) And there being no contract between the deceased and the defendants, there is in truth
nothing to annul by action. The action brought cannot thus be for annulment of contract, but is one
for recovery of a fishpond, a real action that should be, as it has been, brought in Pampanga, where
the property is located (Rule 5, sec. 3, Rules of Court.)

Appellees argue further that the action brought by the plaintiff is unnecessary, the question
involved therein being one that may properly be raised and decided in the probate proceedings.
The general rule is that questions as to title to property cannot be passed upon in testate
proceedings. (Bauermann vs. Casas, 10 Phil., 386; Devesa vs. Arbes, 13 Phil., 273; Guzman vs.
Anog, 37 Phil., 61; Lunsod vs. Ortega, 46 Phil., 664; Adapon vs. Maralit, 40 Off. Gaz., 6th Sup.,
p. 84.) The court is, however, of the opinion and so holds that, when as in the instant case, the
parties interested are all heirs of the deceased claiming title under him, the question as to whether
the transfer made by the latter to the former is or is not fictitious, may properly be brought by
motion in the testate or intestate proceedings on or before the distribution of the estate among the
heirs. This procedure is optional to the parties concerned who may choose to bring a separate
action as a matter of convenience in the preparation or presentation of evidence, and accordingly,
the action brought by the appellant is not improper.

Order is reversed, and the case is remanded the trial court for further proceedings, with costs
against appellees.

Yulo, C.J., Ozaeta, Paras and Bocobo, JJ., concur.

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1781 September 27, 1949

REGISTER OF DEEDS OF PAMPANGA and GONZALO PUYAT, petitioners-appellees,

vs.
PHILIPPINE NATIONAL BANK and PEDRO B. CRUZ, oppositors-appellants.

Ramon B. de los Reyes for appellant Philippine National Bank.

Fortunato de Leon for appellant Pedro B. Cruz.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Manuel Tomacruz for appellee
Register of Deeds.
La O and Feria for appellee Gonzalo Puyat.

TORRES, J.:

This is a petition filed by Rodolfo R. Dimzon as Register of Deeds of Pampanga, whereby he

seeks to correct "the error, omission or mistake made in transfer certificate of title No. 16342 by
transferring on the said title the liens on the property covered by said certificate, consisting of a
mortgage in favor of Gonzalo Puyat under document No. 262 and the lease affecting the portion of
1,045,848 square meters under document No. 1149."

The parcels of land covered by transfer certificate of title No. 5377 of the office of the register of
deeds of Pampanga were registered in the name of Martin Gonzales. Among those parcels, there
was a lot 1-J which is a portion of lot No. 1 located in the municipality of Lubao, with an area of
3,045,848 square meters, more or less. All the parcels of land described in the said certificate No.
5377, as well as those described in certificate No. 5379, original certificate, of title No. 11578 and
original certificate of title No. 17261 and other parcels of land located in Bataan, were mortgaged
in favor of Gonzalo Puyat, to guaranty a loan of P250,000. Those parcels of land were, besides,
leased to one Romualdo Rivera for a period of six agricultural years, which will expire on June 30,
1951, for the amount of P150,000 which was paid in advance.

The above-mentioned mortgage was on October 23, 1943 registered in the office of the register of
deeds of Pampanga, and the corresponding annotation made on the back of the respective
certificate of title (5377) covering the lands affected by that encumbrance.

On September 8, 1944, a portion of lot No. 1-J consisting of 2,000,000 square meters was sold by
Jose Gonzales Carrion, as administrator of the estate of Martin Gonzales, to Pedro B. Cruz for the
sum of P60,000. On October 3, 1945, the remaining portion of the said lot No. 1-J covering an
area of 1,045,848 square meters was likewise sold by the administrator to Pedro B. Cruz for
P104,584.80.

On October 17, 1944, Romualdo Rivera sold his rights on the lease over the 2,000,000 square
meters of lot No. 1-J to Pedro B. Cruz for the sum of P30,000.

By virtue of such sales, transfer certificate of title No. 5377 was partially cancelled as to the whole
lot No. 1-J, and transfer certificate of title No. 16342 was issued on November 26, 1945, in the
name of Pedro B. Cruz, and the only lien appearing thereon is the milling contract executed in
favor of Pampanga Sugar Mills.

On January 4, 1946, Pedro B. Cruz mortgaged the whole of lot No. 1-J described in transfer
certificate of title No. 16342 to the Philippine National Bank, Manila, for the sum of P50,000.
Said mortgage was duly registered in the office of the register of deeds of Pampanga.

It is contended by the register of deeds that Luis Panaguition, then acting vincial fiscal and ex-
officio register of deeds of Pampanga, "overlooked or failed to transfer in the title." the liens
referring to the mortgage in favor of Gonzalo Puyat (document No. 262).

Gonzalo Puyat joined the register of deeds in his petition.

The above petition was opposed by the Philippine National Bank on the ground that it will
adversely affect the interest of the mortgagee bank; it will defeat the primary object of the Torrens
system, and it will not be in accordance with law and the doctrine enunciated by the Supreme
Court.

But inasmuch as according to recent developments shown in the record, the oppositor Philippine
National Bank executed in favor of the other oppositor Pedro B. Cruz, a release of the mortgage
for P50,000 annotated on the back of transfer certificate of title No. 16342, and cancelled said
mortgage, by virtue of the fact that Pedro B. Cruz paid the Philippine National Bank the amount of
his loan, counsel for oppositor-appellant Philippine National Bank in his "Manifestation" attached
to the record on August 24, 1949, stated that "the question raised in the case at bar as ventilated by
the parties in their respective briefs are now academical."

By virtue of the foregoing, in view of the settlement thus effected between the oppositors
Philippine National Bank and Pedro B. Cruz, resulting from the payment by the latter of his debt
to the former and the release and cancellation of the mortgage annotated on the back of transfer
certificate of title No. 16342, the legal tangle between the register of deeds of Pampanga and his
co-petitioner Gonzalo Puyat, on the one hand, and the Philippine National Bank, as oppositor, on
the other, has now become a moot question.

There remains now for us to consider the merit of the petition of the register of deeds and his co-
petitioner Gonzalo Puyat, who pray that an error committed by the predecessor of the register of
deeds of Pampanga be corrected. According to the record when transfer certificate of title No.
16342 was issued to Pedro B. Cruz, the former register of deeds did not annotate on the back of
said transfer certificate of title the mortgage in favor of Gonzalo Puyat for the sum of P250,000,
dated October 23, 1943, and the lease over the portion of 1,045,848 square meters in favor of
Romualdo Rivera, notwithstanding the fact that those liens and encumbrances were duly annotated
on the back of transfer certificate of title No. 5377, which oppositor Pedro B. Cruz surrendered to
the office of the register of deeds for the issuance in his name of a new certificate, when he (Pedro
B. Cruz), became the owner of the property covered by said transfer certificate of title No. 5377.

Pedro B. Cruz also filed his opposition to the petition of the register of deeds. His pleading, among
other things, alleges that when on September 20, 1945, the probate court of Pampanga authorized
the sale of 104 additional hectares of the Hacienda of the late Martin Gonzales, over the objection
of Gonzalo Puyat, and notwithstanding a subsequent motion for reconsideration of the order
approving the sale, which was denied, it stated that the land was free from all liens and
encumbrances. Accordingly, the deeds of sale covering the 200 hectares and the additional 104
hectares show that they were all free from all liens and encumbrances of whatsoever nature, and,
therefore, the register of deeds of Pampanga acted correctly in registering the two deeds of sale in
the name of Pedro B. Cruz, free from all liens and encumbrances of whatsoever nature. It is
further alleged by Pedro B. Cruz that Gonzalo Puyat as mortgagee of the remaining portion of the
Gonzales Estate and plaintiff in civil case No. 70 of the Court of First Instance of Pampanga,
entitled "Gonzalo Puyat vs. Jose Gonzales et al.," did not appeal from the various orders of the
probate court of the sale for the 104 hectares free from all liens and encumbrances of whatsoever
nature; neither had he taken steps, up to the date of the institution of the present proceedings, to
secure the amendment or the correction of the orders respectively issued and the transfer
certificate of title No. 16342 of the register of deeds of Pampanga.

It is further averred by Cruz that the petition of the register of deeds of Pampanga is in the nature
of a petition for review under section 38 of Act No. 496, which provides that the final decree of
registration can not be reopened or set aside after the expiration of one year from the entry thereof,
and that the register of deeds of Pampanga, not being the owner or person in interest of the
property in question, has no legal personality to ask for the correction of the entry in transfer
certificate of title No. 16342 of the register of deeds of Pampanga.

Pedro B. Cruz has not contested, much less denied, that he had in his possession or at least must
have seen and read the contents of transfer certificate of title No. 5377, on which it was shown
very clearly that the property described therein, and which he had purchased from the estate of
Martin Gonzales, was encumbered by a mortgage in favor of Gonzalo Puyat and the 6-year lease
of Romualdo Rivera. It is for this reason that counsel for Gonzalo Puyat accuses him of being
guilty of fraud when he secured from the Office of the Register of Deeds of Pampanga — in
exchange for said transfer certificate of title No. 5377 — transfer certificate of title No. 16342,
free from all encumbrances, that is, without the corresponding annotation of the mortgage of
Gonzalo Puyat and the 6-year lease of Romualdo Rivera. For our part, the least that we can say, is
that when he accepted from the acting register of deeds transfer certificate of title No. 16342, in
lieu of transfer certificate of title No. 5377, without the corresponding annotation of the mortgage
of Gonzalo Puyat, and negotiated a loan of P50,000 to be secured by a mortgage on the land
described in the new transfer certificate of title No. 16342, which, as already stated, did not
contain any annotation on the mortgage existing on transfer certificate of title No. 5377, the
Philippine National Bank was made to believe that his property was unencumbered and he was
guaranteeing the loan of P50,000 he was seeking from said institution by a first mortgage, when in
truth and in fact, the Philippine National Bank was getting only a second mortgage. To be sure,
had the bank been duly informed of the existence of the prior existing mortgage in favor of
Gonzalo Puyat, that institution would have thought twice before granting a loan of such amount.

In opposing the petition of the register of deeds of Pampanga and Gonzalo Puyat, oppositor-
appellant Pedro B. Cruz challenges the personality of the register of deeds to file the same under
the provisions of section 112 of Act No. 496. We believe that such objection is without merit. It
cannot be denied that said official is a "person in interest" as this phrase is used in section 112 of
Act No. 496. If, upon discovering the anomaly involved in this litigation, the petitioner register of
deeds of Pampanga had kept silent about it, he would have been liable for damages as provided in
section 102 of said Act. But even assuming arguendo that the register of deeds is not the "person
in interest" referred to in section 112, such defect, if any, has been cured when the mortgagee
Gonzalo Puyat joined in the petition of the register of deeds by making it his own. As stated in the
case of Alonso vs. Villamor (16 Phil., 315), — "A litigation is not a game of technicalities in
which one, more deeply schooled and skilled in the subtle art of movement and position, entraps
and destroys the other. It is, rather, a contest in which each contending party fully and fairly lays
before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of procedure, asks that justice be done upon the merits.
Lawsuits, unlike duels, are not to be won by a rapier's thrust. . . ."

It is charged that Gonzalo Puyat is guilty of laches in not having brought the anomaly under
consideration to the attention of the proper court of justice. It appears, however, that on February
24, 1947, Gonzalo Puyat brought suit for the foreclosure of the mortgage executed in his favor
against Jose Gonzales et al., in civil case No. 70 still pending in the Court of First Instance of
Pampanga. But at that time, the Philippine National Bank was not included as defendant because
Gonzalo Puyat had no knowledge that Pedro B. Cruz had mortgaged the property in favor of said
bank. Upon discovering that Pedro B. Cruz had obtained transfer certificate of title No. 16342 free
from the encumbrance in favor of Gonzalo Puyat, this petitioner took the necessary steps to have
his first mortgage annotated on the back of said title, and inasmuch as the register of deeds had
already filed his petition, Gonzalo Puyat joined the register of deeds in his petition. Consequently,
upon discovery of the existence of the other mortgage in favor of the Philippine National Bank,
petitioners amended their complaint by making said banking institution an additional defendant as
a second mortgage of the portion of the land mortgaged in favor of Gonzalo Puyat.

It is further contended by appellant Pedro B. Cruz that the order of the probate court in approving
the sale of the land is res judicata in the present case. We don't believe that such contention is
tenable.
The jurisdiction of the Court of First Instance, whether original or appellate, is provided in the
Organic Law of the Judiciary. Formerly, it was the Court of Land Registration that had exclusive
jurisdiction over land matters and proceedings. That court was, however, abolished and its
jurisdiction and functions were transferred to the Court of First Instance. At the present time, the
Judiciary Act of 1948 (Republic Act No. 296), which is a compilation of all the previous
enactments concernig the various courts of justice, in its Chapter IV, sections 43 and 44, provides
for the original jurisdiction of the Courts of First Instance established in the Philippine Islands.
Paragraph (e) of section 44, which, we repeat, embodies previous statutory provisions on the
subject, refers to jurisdiction of the Courts of First Instance on probate matters, "both of testate
and intestate estates, ... and all such special cases and proceedings as are not otherwise provided
for." The special mention made therein of the original jurisdiction given the Court of First Instance
in "all matters of probate, both testate and intestate estates," is a clear expression of the legislative
intent that when a Court of First Instance is sitting as a probate court it can not in the same
proceeding deal with or adjudicate a matter which has no reference or bearing on the case under
its consideration.

Gonzalo Puyat was not a party in the proceedings of the Estate of Martin Gonzales, and when the
Court of First Instance of Pampanga, as probate court — not as land registration court —
authorized the sale to appellant Pedro B. Cruz of a lot belonging to the estate of Martin Gonzales,
it acted as such probate court, in accordance with paragraph (e) of section 44 of the Judiciary Act,
but its pronouncement regarding the existence or non-existence of encumbrances regarding the lot
it authorized to be sold to Pedro B. Cruz, was beyond its jurisdiction as probate court.

It is, therefore, undeniable that since the probate court had no jurisdiction to cancel the mortgage,
the order given by it approving the sales of the properties of the estate of Martin Gonzales to
appellant Pedro B. Cruz did not and does not, in any manner, affect the existence of the mortgaged
executed by Gonzales in favor of Gonzalo Puyat. Any inasmuch as said mortgage was still in force
when Pedro B. Cruz purchased from the estate of Martin Gonzales the property covered by
transfer certificate of title No. 5377, which was subsequently replaced by transfer certificate No.
16342, the conclusion is inevitable that the mortgage in favor of Gonzalo Puyat being prior in date
than the date of the mortgage executed by Pedro B. Cruz in favor of the Philippine National Bank,
in the absence of any showing that the former mortgage of Gonzalo Puyat had been cancelled, the
existence thereof cannot be questioned, and it becomes the duty of the register of deeds to
annotate that mortgage on transfer certificate of Cruz, in lieu of transfer certificate of title No.
5377. Potior est in tempore, potior est in jeru. (He who is first in time, is preferred in right.)

In the light of all the above, we have come to the conclusion that under the provisions of section
112 of Act No. 496, the petition made herein by the register of deeds of Pampanga and Gonzalo
Puyat should be granted.

The order of July 1, 1947, issued in this case by the Court of First Instance of Pampanga, is
affirmed. The appellant Pedro B. Cruz shall pay the costs.

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

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