GUTIERREZ, JR., J.: The decisive issue in the instant petition is whether or not petitioner University of the Philippines (UP) is solidarity liable with Beta, Construction Company, Inc., to pay the amount of P68,843.98, representing the unpaid balance for labor and materials expended in the plumbing and extra works performed at the Biological Science Building of the U.P. College of Agriculture, by the sub-contractor, Allied Plumbing Company, the private respondent herein. On December 27, 1966, the UP and Beta, Construction Co., Inc., entered into a contract for the latter to construct the Biological Science Building of the U.P. College of Agriculture at Los Baños, Laguna for a total lump sum price of Three Million Seven Hundred Ninety Two Thousand Two Hundred Eighteen Pesos and Seven Centavos (P3,792,218.07). On January 4, 1967, Beta, sub-contracted its plumbing works to private respondent Allied Plumbing Company represented by its general manager Domingo P. Gabriel for the total amount of One Hundred Fifty Five Thousand Eighteen Hundred Twenty Eight and 60/100 Pesos (P155,828.60). The plumbing contract was duly approved by the U.P. Bidding Committee. On the ground that after Allied Plumbing Company completed its works, Beta, refused to remit the balance of P64,626.08. plus the payment of additional works asked by Beta, in the total amount of P4,017.90, the former filed a complaint for "sum of money with damages" against U.P. and Beta, with the Court of First Instance of Rizal. The defendants denied the allegations of the plaintiff that the latter had completed its plumbing works under the subcontract. They contended that there was delay in payment due to the improper and faulty plumbing connections made by the plaintiff; that the plaintiff was unable to complete the work stipulated in the sub-contract and that the work completed including the additional works by the plaintiff were later found to be grossly defective and had to be repaired and re-done by Beta; that because of the incompetence of the plaintiff, Beta, was compelled to engage the services of another plumbing contractor who repaired the work; and that Beta overpaid the amount of P81,686.00 under the plumbing sub-contract which plaintiff is under obligation to return to Beta. After trial on the merits, the lower court rendered a decision in favor of the plaintiff. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered in favor of plaintiff, as follows: 1. Sentencing defendant Beta, Construction Co., Inc., and University of the Philippines College of Agriculture and/or University of the Philippines, jointly and severally, to pay plaintiff the total sum of P68,843.98, representing the unpaid balance for labor and materials expended in the plumbing and extra works performed by plaintiff at the Biological Science Building of the College of Agriculture, with interest thereon at the legal rate from October 16, 1969, until fully paid; 2. Sentencing defendant Beta, Construction Co., Inc., to pay plaintiff; (a) the sum of P20,000.00, by way of moral damages;

(b) the sum of P5,000.00 by way of exemplary damages; and (c) the sum of P10,000.00, by way of attorney's fees. Cost against both defendants. (pp. 131-132, Record on Appeal) Only U.P. appealed the decision to the then Intermediate Appellate Court, now Court of Appeals. The decision was affirmed. A motion for reconsideration was denied. Hence, this petition. In a resolution dated September 30, 1985, we gave due course to the petition. The petitioner questions the findings of fact of the appellate court which adopted those of the lower court, to wit: Plaintiff completed the contracted plumbing and extra work in November, 1968. However, of the contracted price of P155,828.60 defendant Beta, paid plaintiff only the amount of P91,202.52 thereby leaving a balance unpaid of P64,626.08 for the plumbing works on the Biological Science Building. Plaintiff likewise was not paid the contract price of P2,985.00 and P1,032.90, respectively, for the extra work it performed at the request of defendant Beta which defendant UP also approved, despite presentation of the corresponding statements of accounts. The total claim, therefore, of plaintiff amounted to P68,643.98. Because of the failure of defendant Beta to pay plaintiff for the balance of the plumbing and extra works, plaintiff sent a letter, dated November 4, 1968 to defendant UP, through its Project Manager at the job site, requesting the latter "not to approve the final payment and retention due and payable to the general contractor Beta, Construction Co., Inc., without a written certification from us, that we have been fully paid of their obligations to us." The aforesaid letter was duly received on November 7, 1968 and was followed by a demand letter dated August 4, 1969 which plaintiff sent to defendant UP, through its College of Agriculture, and copies of which were furnished also the Dean and Auditor of the college and duly received by the addresses. Failing to get any reply, plaintiff endorsed the matter to a lawyer, who sent to the College of Agriculture and to the Project Manager two demand letters, both of which were left unanswered by defendant UP (pp. 123-124, Record on Appeal) (p. 51, Rollo). In affirming the decision of the trial court, the appellate court applied Article 1729 of the New Civil Code which states: Those who put their labor upon or furnish materials for a piece of work undertaken by a contractor have an action against the owner up to the amount owing from the latter to the contrator at time the claim is made. However, the following shall not prejudice the laborers, employees and furnishers of materials: (1) Performed made by the owner to the contractor before they are due; (2) Renunciation by the contractor of any amount due him from the owner. This article is subject to the provisions of special laws. The appellate court ruled that the private respondent had a lawful claim against UP, owner of the constructed building pursuant to Article 1729 in view of the following facts: Plaintiff notified defendant UP in writing as early as November 7, 1968 that plaintiff had not been fully paid by the general contractor and accordingly requested defendant UP not to release to said contractor "the final payment for the 100% completion and the payment of the retention." Nevertheless, defendant UP released payments to defendant BETA from November 25, 1968 up to February 10, 1970 and thereafter, thereby defeating plaintiff's claim for the unpaid price of the work it contracted for and performed. Defendant UP's own Exhibit "2-UP" shows that said defendant disregarded the notice of claim of plaintiff, at a time when the amounts owing from defendant UP to defendant Beta, were more than sufficient to pay for plantiff's claim. The 19th and 20th payments alone which were released on

November 25, 1968 and September 1, 1969, respectively, or after receipt of plaintiff's claim on November 7, 1968 amounted to P158,490.70. And from the 21st to the 25th and final payments, defendant UP released to defendant Beta the net amount of P167.402.55 covering the period November 3, 1968 up to February 20, 1970. (Record on Appeal, pp. 125-126, Emphasis supplied). From the foregoing, Appellant did not approve the work accomplished by Plaintiff-Appellee because it disregarded the notice of claim. Thus, it cannot be said that Appellee's claim was not yet due and demandable since it was Appellant's inaction that precipitated the appealed case. Were it not for Appellant's total disregard of Plaintiff-Appellee's claim, it should not have been impleaded as a party defendant. As aptly observed by the court a quo, "the least that Appellant should have done was to withhold payment of the balance still owing to defendant Beta, as of November 7, 1968 until the claim of plaintiff was clarified." (pp. 127, 128, Record on Appeal).pp. 9-10, Appeallee's Brief.(pp. 55-56, Rollo). The petitioner refutes these findings by stating that Article 1729 contemplates "those who actually furnish labor and materials and as per specification and not those who furnish defective works." The petitioner maintains that the private respondent did not fully accomplish the plumbing works specified in the sub-contract; and that there was actually "overpayment" by Beta. The petitioner also stated that the word "claim" in the same provision refers to claims that are due and demandable or valid claims enforceable in law and does not, therefore, apply to a claim which a sub-contractor has no right to make against his contractor as in the instant case where the work accomplished by private respondent as a sub-contractor had no recorded approval by UPCA pursuant to their agreement dated January 4, 1967. The petitioner submits that it is the burden of the private respondent to show that the former gave the required approval for work accomplished adequately and per specifications under the sub-contract agreement. The sub-contract between private respondent Allied Plumbing Company represented by its General Manager Domingo P. Gabriel and Beta provides that: xxx xxx xxx The terms of payment shall be on a monthly basis as per work accomplished and approved by the UNIVERSITY OF THE PHILIPPINES COLLEGE OF AGRICULTURE. (p. 16, Record on Appeal; Emphasis supplied). The petitioner became party to this sub-contract when it was approved by the UP Bidding Committee. This stipulation in the sub-contract is clear and leaves no doubt as to the intention of the contractor parties. Consequently, the literal meaning of the stipulation shall control. This is the first rule in the interpretation of contracts (Article 1370, New Civil Code; La Suerte Cigar & Cigarette Factory v. Director of the Bureau of Labor Relations, 123 SCRA 679). This is the law between the parties. It is essential that there must be approval of the works completed by the private respondent before UP can be made liable under the sub-contract. It is of no moment that the private respondent, wrote UP that Beta, the contractor had not yet paid all its obligations to the former. This does not necessarily mean approval of the private respondent's works. Moreover, it is to be noted that this letter was forwarded to Beta, for clarification. And in a letter dated August 13, 1969 addressed to the Office of the Project Manager, Technical & Administrative Unit, UPCA 5-year Development Program, College, Los Baños, Laguna, Beta, stated that ² It is not true that we had stopped paying Mr. Gabriel since July, 1968, the truth being that we were forced to make the purchases of materials ourselves and pay his laborers due to Mr. Gabriel's own consistent inability to perform his work with reasonable efficiency and within allowable time. There have been several written communications from us to Mr. Gabriel regarding this matter. We even reiterated in writing our invitation to Mr. Gabriel for a conference on this matter, but he had consistently disregarded our invitations for conference. The UPCA has been fully aware of this matter since the outset, as per reports of its engineers.

In fact, Mr. Domingo Gabriel had been overpaid by us over and above his contract price based on an accomplishment of 91.1 % given by UPCA as of our last collection on October 15, 1968. We are even assessing the damage suffered by us as a result of the failure of Mr. Gabriel to perform his work. We are therefore suggesting that you disregard the unfounded claims of Mr. Gabriel as acts of pure harassment against us. We are in fact aggrieved parties of Mr. Gabriel's negligence and malice. (pp. 29-30, Record on Appeal; Emphasis supplied). Face with these two conflicting claims, the petitioner should not be faulted for relying on the contractor's claim that it paid all its obligations to the private respondent and at the same time disregarding the latter's claim. There is no evidence showing approval of the works performed by the private respondent pursuant to the terms of the subcontract. Hence, we agree with the Solicitor General that the private respondent had no valid claim against the petitioner. Article 1729 of the New Civil Code also states that its provisions are subject to special laws. In this connection, the appellate court applying Act No. 3959. (An Act making it obligatory for any person, company, firm or corporation owning any work of any kind executed by contract to require the contractor to furnish a bond guaranteeing the payment of the laborers, providing penalties for the violation hereof, and for other purposes) stated: xxx xxx xxx ... It is true that UPCA and/or UP had already fully paid its obligation to Beta, however, appellant's payment to defendant Beta, does not extinguish its legal obligation to plaintiff-appellee because such payment was irregular. As correctly stated by the trial court, appellant UPCA and/or UP "... should have taken care not to pay to such contractor the full amount which he is entitled to receive by virtue of the contract, until he shall have shown that he first paid the wages of the laborer employed in said work, by means of an affidavit made and subscribed by said contractor before a notary public or other officer authorized by law to administer oaths." There is no showing that defendant UP, as owner of the building, complied with this requirement paid down in Act No. 3959. Hence, under Section 2 of said law, said defendant is responsible, jointly and severally with the general contractor, defendant Beta, for the payment of the wages of the plumbing sub-contract contract and other extra works. (p. 128, Record on Appeal).(p. 58, Rollo). The above conclusion is wrong. Act 3959 was intended for private persons, companies, firms, or corporations using the services of contractors who may employ their own carpenters, masons, and laborers or hire sub-contractors. This is made even more evident by the fact that Presidential Decree No. 442. The Labor Code of the Philippines, Articles 106 to 109 and its Rules and Regulations, Rule VIII, Sections 7-9, have superseded Act 3959. The Labor Code does not cover government employment. The applicable law is Act 3688 which is titled "AN ACT FOR THE PROTECTION OF PERSONS FURNISHING MATERIAL AND LABOR FOR THE CONSTRUCTION OF PUBLIC WORKS." Petitioner UP was established "to provide advanced instruction in literature, philosophy, the sciences and arts, and to give professional and technical training." (Mindanao Federation of Labor v. University of the Philippines, 138 SCRA 623, citing University of the Philippines v. Court of Industrial Relations, et al., 107 Phil. 848). Thus, UP performs a governmental function. It is neither a corporation created for profit nor an industry or business corporation, but it is a public institution of higher learning created for a fundamental public purpose. There is no doubt that it was in furtherance of its governmental function as an institution of higher learning that the UP bidded out the construction of the Biological Science Building of the College of Agriculture at Los Baños, Laguna. Thus, the construction of this building should be considered as a construction of public works.

In the instant case, Beta, the contractor posted a "performance bond" in the amount of P758,443.61 "conditioned for the faithful performance of the contract and for the full payment of all obligation and fees (legal or business) arising thereunder." Section 1 of Act 3688 provides that: ... If no suit should be brought by the Government of the Philippine Islands within six months from the completion and final settlement of said contract, or if the Government expressly waives its right to institute action on the penal bond, then the person or persons supplying the contractor with labor and materials shall, upon application therefor, and furnishing affidavit to the department under the direction of which said work has been prosecuted, that labor or materials for the prosecution of such work have been supplied by him or them, and payment for which has not been made, be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, and shall be, and are hereby, authorized to bring suit in the name of the Government of the Philippine Islands in the Court of First Instance in the district in which said contract was to be performed and executed, and not elsewhere, for his or their use and benefit against said contractor and his sureties, and to prosecute the same to final judgment and execution. ... Thus, the private respondent should have requested for a certified copy of the contract and bond from UP and sued Beta Construction and the surety company for unpaid labor and materials instead of proceeding against UP. Under the circumstances of this case, UP is not solidarity liable with Beta, for the claims of the sub-contractor against Beta. WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate Court is MODIFIED. Petitioner University of the Philippines is absolved from paying respondent Allied Plumbing Company the amount of P68,843.98, representing the unpaid balance for labor and materials expended in the plumbing and extra works it performed as sub-contractor of Beta, Construction Company, Inc., at the Biological Science Building of the UP College of Agriculture. No costs. SO ORDERED.

G.R. No. 116635 July 24, 1997 CONCHITA NOOL and GAUDENCIO ALMOJERA, petitioner, vs. COURT OF APPEALS, ANACLETO NOOL and EMILIA NEBRE, respondents.

PANGANIBAN, J.: A contract of repurchase arising out of a contract of sale where the seller did not have any title to the property "sold" is not valid. Since nothing was sold, then there is also nothing to repurchase. Statement of the Case This postulate is explained by this Court as it resolves this petition for review on certiorari assailing the January 20, 1993 Decision 1 of Respondent Court of Appeals 2 in CA-G.R. CV No. 36473, affirming the decision 3 of the trial court 4 which disposed as follows: 5 WHEREFORE, judgment is hereby rendered dismissing the complaint for no cause of action, and hereby:

1. Declaring the private writing, Exhibit "C", to be an option to sell, not binding and considered validly withdrawn by the defendants for want of consideration; 2. Ordering the plaintiffs to return to the defendants the sum of P30,000.00 plus interest thereon at the legal rate, from the time of filing of defendants' counterclaim until the same is fully paid; 3. Ordering the plaintiffs to deliver peaceful possession of the two hectares mentioned in paragraph 7 of the complaint and in paragraph 31 of defendants' answer (counterclaim); 4. Ordering the plaintiffs to pay reasonable rents on said two hectares at P5,000.00 per annum or at P2,500.00 per cropping from the time of judicial demand mentioned in paragraph 2 of the dispositive portion of this decision, until the said two hectares shall have been delivered to the defendants; and 5. To pay the costs. SO ORDERED. The Antecedent Facts The facts, which appear undisputed by the parties, are narrated by the Court of Appeals as follows: Two (2) parcels of land are in dispute and litigated upon here. The first has an area of 1 hectare. It was formerly owned by Victorino Nool and covered by Transfer Certificate of Title No. T-74950. With an area of 3.0880 hectares, the other parcel was previously owned by Francisco Nool under Transfer Certificate of Title No. T100945. Both parcel's are situated in San Manuel, Isabela. The plaintiff spouses, Conchita Nool and Gaudencio Almojera, now the appellants, seek recovery of the aforementioned parcels of land from the defendants, Anacleto Nool, a younger brother of Conchita, and Emilia Nebre, now the appellees.
In their complaint, plaintiff-appellants alleged inter alia that they are the owners of subject parcels of land, and they bought the same from Conchita's other brothers, Victorino Nool and Francisco Nool; that as plaintiffs were in dire need of money, they obtained a loan from the Ilagan Branch of the Development Bank of the Philippines, in Ilagan, Isabela, secured by a real estate mortgage on said parcels of land, which were still registered in the names of Victorino Nool and Francisco Nool, at the time, and for the failure of plaintiffs to pay the said loan, including interest and surcharges, totaling P56,000.00, the mortgage was foreclosed; that within the period of redemption, plaintiffs contacted defendant Anacleto Nool for the latter to redeem the foreclosed properties from DBP, which the latter did; and as a result, the titles of the two (2) parcels of land in question were transferred to Anacleto Nool; that as part of their arrangement or understanding, Anacleto Nool agreed to buy from plaintiff Conchita Nool the two (2) parcels of land under controversy, for a total price of P100,000.00, P30,000.00 of which price was paid to Conchita, and upon payment of the balance of P14,000.00, plaintiffs were to regain possession of the two (2) hectares of land, which amounts defendants failed to pay, and the same day the said arrangement 6 was made; another covenant 7 was entered into by the parties, whereby defendants agreed to return to plaintiffs the lands in question, at anytime the latter have the necessary amount; that plaintiffs asked the defendants to

return the same but despite the intervention of the Barangay Captain of their place, defendants refused to return the said parcels of land to plaintiffs; thereby impelling them (plaintiffs) to come to court for relief.

In their Answer, defendants-appellees theorized that they acquired the lands in question from the Development Bank of the Philippines, through negotiated sale, and were misled by plaintiffs when defendant Anacleto Nool signed the private writing, agreeing to return subject lands when plaintiffs have the money to redeem the same; defendant Anacleto having been made to believe, then, that his sister, Conchita, still had the right to redeem the said properties. The pivot of inquiry here, as aptly observed below, is the nature and significance of the private document, marked Exhibit "D" for plaintiffs, which document has not been denied by the defendants, as defendants even averred in their Answer that they gave an advance payment of P30,000.00 therefor, and acknowledged that they had a balance of P14,000.00 to complete their payment. On this crucial issue, the lower court adjudged the said private writing (Exhibit "D") as an option to sell not binding upon and considered the same validly withdrawn by defendants for want of consideration; and decided the case in the manner above-mentioned.
There is no quibble over the fact that the two (2) parcels of land in dispute were mortgaged to the Development Bank of the Philippines, to secure a loan obtained by plaintiffs from DBP (Ilagan Branch), Ilagan, Isabela. For the non-payment of said loan, the mortgage was foreclosed and in the process, ownership of the mortgaged lands was consolidated in DBP (Exhibits 3 and 4 for defendants). After DBP became the absolute owner of the two parcels of land, defendants negotiated with DBP and succeeded in buying the same. By virtue of such sale by DBP in favor of defendants, the titles of DBP were cancelled and the corresponding Transfer Certificates of Title (Annexes "C" and "D" to the Complaint) issued to the defendants. 8

It should be stressed that Manuel S. Mallorca, authorized officer of DBP, certified that the one-year redemption period was from March 16, 1982 up to March 15, 1983 and that the mortgagors' right of redemption was not exercised within this period. 9 Hence, DBP became the absolute owner of said parcels of land for which it was issued new certificates of title, both entered on May 23, 1983 by the Registry of Deeds for the Province of Isabela.10 About two years thereafter, on April 1, 1985, DBP entered into a Deed of Conditional Sale 11 involving the same parcels of land with Private Respondent Anacleto Nool as vendee. Subsequently, the latter was issued new certificates of title on February 8, 1988. 12 The Court of Appeals ruled: 13 WHEREFORE, finding no reversible error infirming it, the appealed Judgment is hereby AFFIRMED in toto. No pronouncement as to costs. The Issues Petitioners impute to Respondent Court the following alleged "errors": 1. The Honorable Court of Appeals, Second Division has misapplied the legal import or meaning of Exhibit "C" in a way contrary to law and existing jurisprudence in stating that it has no binding effect between the parties and considered validly withdrawn by defendants-appellees for want of consideration.

2. The Honorable Court of Appeals, Second Division has miserably failed to give legal significance to the actual possession and cultivation and appropriating exclusively the palay harvest of the two (2) hectares land pending the payment of the remaining balance of fourteen thousand pesos (P14,000.00) by defendantsappellees as indicated in Exhibit "C".
3. The Honorable Court of Appeals has seriously erred in affirming the decision of the lower court by awarding the payment of rents per annum and the return of P30,000.00 and not allowing the plaintiffs-appellants to re-acquire the four (4) hectares, more or less upon payment of one hundred thousand pesos (P100,000.00) as shown in Exhibit "D". 14

The Court's Ruling The petition is bereft of merit. First Issue: Are Exhibits "C" and "D" Valid and Enforceable? The petitioner-spouses plead for the enforcement of their agreement with private respondents as contained in Exhibits "C" and "D," and seek damages for the latter's alleged breach thereof. In Exhibit C, which was a private handwritten document labeled by the parties as Resibo ti Katulagan or Receipt of Agreement, the petitioners appear to have "sold" to private respondents the parcels of land in controversy covered by TCT No. T-74950 and TCT No.T-100945. On the other hand, Exhibit D, which was also a private handwritten document in Ilocano and labeled as Kasuratan, private respondents agreed that Conchita Nool "can acquire back or repurchase later on said land when she has the money." 15 In seeking to enforce her alleged right to repurchase the parcels of land, Conchita (joined by her copetitioner-husband) invokes Article 1370 of the Civil Code which mandates that "(i)f the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control." Hence, petitioners contend that the Court of Appeals erred in affirming the trial court's finding and conclusion that said Exhibits C and D were "not merely voidable but utterly void and inexistent." We cannot sustain petitioners' view. Article 1370 of the Civil Code is applicable only to valid and enforceable contracts. The Regional Trial Court and the Court of Appeals ruled that the principal contract of sale contained in Exhibit C and the auxiliary contract of repurchase in Exhibit D are both void. This conclusion of the two lower courts appears to find support in Dignos vs. Court of Appeals, 16 where the Court held: Be that as it may, it is evident that when petitioners sold said land to the Cabigas spouses, they were no longer owners of the same and the sale is null and void. In the present case, it is clear that the sellers no longer had any title to the parcels of land at the time of sale. Since Exhibit D, the alleged contract of repurchase, was dependent on the validity of Exhibit C, it is itself void. A void contract cannot give rise to a valid one. 17 Verily, Article 1422 of the Civil Code provides that "(a) contract which is the direct result of a previous illegal contract, is also void and inexistent." We should however add that Dignos did not cite its basis for ruling that a "sale is null and void" where the sellers "were no longer the owners" of the property. Such a situation (where the sellers were no longer owners) does not appear to be one of the void contracts enumerated in Article 1409 of the Civil Code. 18 Moreover, the Civil Code19 itself recognizes a sale where the goods are to be

"acquired . . . by the seller after the perfection of the contract of sale," clearly implying that a sale is possible even if the seller was not the owner at the time of sale, provided he acquires title to the property later on. In the present case however, it is likewise clear that the sellers can no longer deliver the object of the sale to the buyers, as the buyers themselves have already acquired title and delivery thereof from the rightful owner, the DBP. Thus, such contract may be deemed to be inoperative 20 and may thus fall, by analogy, under item no. 5 of Article 1409 of the Civil Code: "Those which contemplate an impossible service." Article 1459 of the Civil Code provides that "the vendor must have a right to transfer the ownership thereof [object of the sale] at the time it is delivered." Here, delivery of ownership is no longer possible. It has become impossible. Furthermore, Article 1505 of the Civil Code provides that "where goods are sold by a person who is not the owner thereof, and who does not sell them under authority or with consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell." Here, there is no allegation at all that petitioners were authorized by DBP to sell the property to the private respondents. Jurisprudence, on the other hand, teaches us that "a person can sell only what he owns or is authorized to sell; the buyer can as a consequence acquire no more than what the seller can legally transfer." 21 No one can give what he does not have ² nono dat quod non habet. On the other hand, Exhibit D presupposes that petitioners could repurchase the property that they "sold" to private respondents. As petitioners "sold" nothing, it follows that they can also "repurchase" nothing. Nothing sold, nothing to repurchase. In this light, the contract of repurchase is also inoperative ² and by the same analogy, void. Contract of Repurchase Dependent on Validity of Sale As borne out by the evidence on record, the private respondents bought the two parcels of land directly from DBP on April 1, 1985 after discovering that petitioners did not own said property, the subject of Exhibits C and D executed on November 30, 1984. Petitioners, however, claim that they can exercise their alleged right to "repurchase" the property, after private respondents had acquired the same from DBP. 22 We cannot accede to this, for it clearly contravenes the intention of the parties and the nature of their agreement. Exhibit D reads: WRITING

That I, Anacleto Nool have bought from my sister Conchita Nool a land an area of four hectares (4 has.) in the value of One Hundred Thousand (100,000.00) Pesos. It is our agreement as brother and sister that she can acquire back or repurchase later on said land when she has the money. [Emphasis supplied]. As proof of this agreement we sign as brother and sister this written document this day of Nov. 30, 1984, at District 4, San Manuel, Isabela.

S g d



Sgd Emilio Paron Witness

S g d

C o n c

h i t a

N o o l

One "repurchases" only what one has previously sold. In other words, the right to repurchase presupposes a valid contract of sale between the same parties. Undisputedly, private respondents acquired title to the property from DBP, and not from petitioners. Assuming arguendo that Exhibit D is separate and distinct from Exhibit C and is not affected by the nullity of the latter, still petitioners do not thereby acquire a right to repurchase the property. In that scenario, Exhibit D ceases to be a "right to repurchase" ancillary and incidental to the contract of sale; rather, it becomes an accepted unilateral promise to sell. Article 1479 of the Civil Code, however, provides that "an accepted unilateral promise to buy or sell a determinate thing for a price certain is binding upon the promissor if the promise is supported by a consideration distinct from the price." In the present case, the alleged written contract of repurchase contained in Exhibit D is bereft of any consideration distinct from the price. Accordingly, as an independent contract, it cannot bind private respondents. The ruling in Diamante vs. CA 24 supports this. In that case, the Court through Mr. Justice Hilario G. Davide, Jr. explained: Article 1601 of the Civil Code provides: Conventional redemption shall take place when the vendor reserves the right to repurchase the thing sold, with the obligation to comply with the provisions of article 1616 and other stipulations which may have been agreed upon. In Villarica, et al. Vs. Court of Appeals, et al., decided on 29 November 1968, or barely seven (7) days before the respondent Court promulgated its decisions in this case, this Court, interpreting the above Article, held:

The right of repurchase is not a right granted the vendor by the vendee in a subsequent instrument, but is a right reserved by the vendor in the same instrument of sale as one of the stipulations of the contract. Once the instrument of absolute sale is executed, the vendor can not longer reserve the right to repurchase, and any right thereafter granted the vendor by the vendee in a separate instrument cannot be a right of repurchase but some other right like the option to buy in the instant case. . . . In the earlier case of Ramos, et al. vs. Icasiano, et al., decided in 1927, this Court had already ruled that "an agreement to repurchase becomes a promise to sell when made after the sale, because when the sale is made without such an agreement, the purchaser acquires the thing sold absolutely, and if he afterwards grants the vendor the right to purchase, it is a new contract entered into by the purchaser, as absolute owner already of the object. In that case the vendor has nor reserved to himself the right to repurchase. In Vda. De Cruzo, et al. vs. Carriaga, et al. this Court found another occasion to apply the foregoing principle. Hence, the Option to Repurchase executed by private respondent in the present case, was merely a promise to sell, which must be governed by Article 1479 of the Civil Code which reads as follows: Art. 1479. A promise to buy and sell a determinate thing for a price certain is reciprocally demandable. An accepted unilateral promise to buy or to sell a determinate thing for a price certain is binding upon the promissor if the promise is supported by a consideration distinct from the price. Right to Repurchase Based on Homestead or Trust Non-Existent Petitioners also base their alleged right to repurchase on (1) Sec. 119 of the Public Land Act 25 and (2) an implied trust relation as "brother and sister." 26 The Court notes that Victorino Nool and Francisco Nool mortgaged the land to DBP. The brothers, together with Conchita Nool and Anacleto Nool, were all siblings and heirs qualified to repurchase the two parcels of land under Sec. 119 of the Public Land Act which provides that "(e)very conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow or legal heirs, within a period of five years from the date of conveyance." Assuming the applicability of this statutory provision to the case at bar, it is indisputable that Private Respondent Anacleto Nool already repurchased from DBP the contested properties. Hence, there was no more right of repurchase that his sister Conchita or brothers Victorino and Francisco could exercise. The properties were already owned by an heir of the homestead grantee and the rationale of the provision to keep homestead lands within the family of the grantee was thus fulfilled. 27 The claim of a trust relation is likewise without merit. The records show that private respondents did not purchase the contested properties from DBP in trust for petitioners. The former, as previously mentioned, in fact bought the land from DBP upon realization that the latter could not validly sell the same. Obviously, petitioners bought it for themselves. There is no evidence at all in the records that

they bought the land in trust for private respondents. The fact that Anacleto Nool was the younger brother of Conchita Nool and that they signed a contract of repurchase, which as discussed earlier was void, does not prove the existence of an implied trust in favor of petitioners. Second Issue: No Estoppel in Impugning the Validity of Void Contracts Petitioners argue that "when Anacleto Nool took the possession of the two hectares, more or less, and let the other two hectares to be occupied and cultivated by plaintiffs-appellant, Anacleto Nool cannot later on disclaim the terms or contions (sic) agreed upon and his actuation is within the ambit of estoppel . . . 28 We disagree. The private respondents cannot be estopped from raising the defense of nullity of contract, specially in this case where they acted in good faith, believing that indeed petitioners could sell the two parcels of land in question. Article 1410 of the Civil Code mandates that "(t)he action or defense for the declaration of the inexistence of a contract does not prescribe." It is a well-settled doctrine that "as between parties to a contract, validity cannot be given to it by estoppel if it is prohibited by law or it is against public policy (19 Am. Jur. 802). It is not within the competence of any citizen to barter away what public policy by law seeks to preserve." 29 Thus, it is immaterial that private respondents initially acted to implement the contract of sale, believing in good faith that the same was valid. We stress that a contract void at inception cannot be validated by ratification or prescription and certainly cannot be binding on or enforceable against private respondents. 30 Third Issue: Return of P30,000.00 with Interest and Payment of Rent Petitioners further argue that it would be a "miscarriage of justice" to order them (1) to return the sum of P30,000.00 to private respondents when allegedly it was Private Respondent Anacleto Nool who owed the former a balance of P14,000.00 and (2) to order petitioners to pay rent when they "were allowed to cultivate the said two hectares." 31 We are not persuaded. Based on the previous discussion, the balance of P14,000.00 under the void contract of sale may not be enforced. Petitioners are the ones who have an obligation to return what they unduly and improperly received by reason of the invalid contract of sale. Since they cannot legally give title to what they "sold," they cannot keep the money paid for the object of the sale. It is basic that "(e)very person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same." 32 Thus, if a void contract has already "been performed, the restoration of what has been given is in order." 33 Corollarily and as aptly ordered by respondent appellate court, interest thereon will run only from the time of private respondents' demand for the return of this amount in their counterclaim. 34 In the same vein, petitioners' possession and cultivation of the two hectares are anchored on private respondents' tolerance. Clearly, the latter's tolerance ceased upon their counterclaim and demand on the former to vacate. Hence, their right to possess and cultivate the land ipso factoceased. WHEREFORE, the petition is DENIED and the assailed Decision of the Court of Appeals affirming that of the trial court is hereby AFFIRMED. SO ORDERED.


G.R. No. 163680

January 24, 2006

MONICO SAN DIEGO, Petitioner, vs. EUFROCINIO EVANGELISTA,Respondent. DECISION CARPIO MORALES, J.: Petitioner Monico San Diego has been an agricultural tenant in a parcel of land (the property) located in barangay San Vicente, Sta. Maria, Bulacan, covered by TCT Number 98.728 (M) in the name of Andres Evangelista. After Andres Evangelista died in 1994, his son respondent Eufrocinio Evangelista inherited the property which has a total area of three hectares, 21,000 square meters of which are planted with rice and the remaining 11,200 square meters with bamboo. On June 6, 1996, petitioner filed a complaint before the Department of Agrarian Reform Adjudication Board (DARAB) Region III Office, Malolos, Bulacan against respondent for maintenance of peaceful possession, enjoyment, and damages with respect to the bambooland portion of the property. He complained that respondent and some unidentified companions "forcibly entered the [bambooplanted portion of the property] and without authority of law and by means of force and intimidation cut down some of the bamboo trees [which he had] planted [thereon]," without giving him his lawful share, and they threatened to continue cutting down the remaining bamboo trees and tried to dispossess him as agricultural tenant thereof.1 Respondent countered that petitioner is a tenant only with respect to the riceland portion of the property, the bambooland portion not being tenanted. And he denied petitioner¶s claim of having planted the bamboo trees, he claiming that they have been existing since 1937. The DARAB Provincial Adjudicator dismissed petitioner¶s complaint by decision of October 6, 1997,2 holding, inter alia, as follows, quoted verbatim: xxxx A succinct reading of the contract of lease will reveal as to what intent of the parties maybe in interpreting the entire contract of lease; and on this point, note must be taken thatper wordings in the contract of lease, the existence of which is admitted by both parties, that the thirty three cavans of palay per annum or forty-five (45) kilos per cavan during the wet season actually represents the equivalent of twenty-five (25%) per cent of the average harvests during the agricultural years from 1970, 1971, and 1972. No mention was made about the yield of the bambooland portion as to how much actually per year was the harvest for said three (3) agricultural years. In view of this observation of this office, the Board is inclined to favor the view of the defendant that, indeed, only the riceland portion of the landholding is actually covered by the contract of lease and that the 33 cavans amount of rental per year during the wet seasons refers to the riceland portion of the landholding. x x x x3 (Underscoring supplied) On appeal, the DARAB, by decision of February 16, 2000,4 reversed that of the Provincial Adjudicator, it holding that:

xxxx The agricultural leasehold contract executed between Plaintiff-Appellant and the late Andres Evangelista covers the lot consisting of three (3) hectares as evidenced by an Agricultural Leasehold Contract executed by herein parties on 4 September 1984 (Exhibit "1"; page 30, Rollo). Apparently, Plaintiff-Appellant is a tenant on the 3-hectare land and not on the 21,000 square meter area. Clearly, the bamboo land is part and parcel of the 3-hectare land. Nowhere in said contract excluded the bamboo land. The contract being the law between the parties is therefore binding between them. Indeed, Exhibit "1" produces effect as between the parties who executed the same. (Underscoring supplied) Parenthetically, Republic Act 3844 categorically provides that "in case there is doubt in the interpretation and enforcement of laws or acts relative to tenancy, including agreements between the landowner and the tenant, it should be resolved in favor of the latter, to protect him from unjust exploitation and arbitrary ejectment by unscrupulous landowners."5 x x x (Underscoring in the original) His motion for reconsideration having been denied by DARAB resolution of January 12, 2001, respondent elevated the case via petition for review to the Court of Appeals which reversed the DARAB decision and reinstated that of the DARAB Provincial Adjudicator, by decision of December 18, 2003.6 In reversing the DARAB decision, the Court of Appeals observed: xxxx In the case of Monsanto v. Zerna,7 the Supreme Court laid down the elements of a tenancy relationship, which are: "(1) the parties are landowner and the tenant or agricultural lessee; (2) and subject matter of the relationship is an agricultural land; (3) there is consent between the parties to the relationship; (4) that the purpose of the relationship is to bring about agricultural production; (5) there is personal cultivation on the part of the tenant or agricultural lessee; and (6) the harvest is shared between the landowner and the tenant or agricultural lessee." Following the guidelines set forth in Monsanto case, the Agricultural Leasehold Contract of private respondent with the late Andres Evangelista excluded the bamboo land area, for the simple reason that requisites 5 and 6 are wanting in the instant case. The wordings of the agricultural leasehold contract itself which pertains only to the produce of rice belies private respondent¶s claim in paragraph 4 of his Complaint that "«the subject bamboo trees were planted by herein plaintiff (now private respondent) when the latter started working as agricultural tenant on the subject landholding." Thus, no evidence of personal cultivation of bamboo trees was presented by private respondent other than his bare allegations to this effect. On the contrary, it was established in the Affidavits or "Sinumpaang Salaysay" of several neighbors of petitioner, one of whom is a Barangay Chairman, that as early as 1957, Andres Evangelista during his lifetime was the one in possession of the bamboo land and actively administered the cutting of the bamboo trees thereon, which upon the death of Andres Evangelista was carried on by petitioner when he inherited the bamboo land in question.

Moreover, it was aptly observed by the Adjudicator a quo in its reversed decision that: "it is quite intriguing to one¶s conscience if there is any truth to the claim of plaintiff that he was the one who planted the bamboo trees existing in the landholding in question for it must be taken judicial notice of the fact that during the recent years, specially so at the age of the plaintiff, that it is no longer usual for a person of his age to claim that he was the one who planted the bamboo trees on the bamboo land portion of the landholding in question." Moreover, Exhibit 6-A which is the annual payment of lease made by private respondent, listed merely in a piece of paper, as kept by the late Andres Evangelista during his lifetime, clearly showed that the said payments corresponds only to the yield of rice over the portion of riceland and not on the disputed bamboo land. Again, no mention was made about the yield of the bamboo land as to how much per year was the harvest. Absent the essential elements of consent and sharing between the parties no tenancy relationship can exist between them. All told, private respondent is not a tenant in the subject bamboo land."8 (Italics, emphasis and underscoring in the original, citations omitted) Petitioner¶s motion for reconsideration having been denied by the appellate court by resolution of May 25, 2004, he comes to this Court on petition for review on certiorari, insisting on his claim that the Agricultural Leasehold Contract (the contract) he forged with respondent¶s father covers the entire 3-hectare property. Resolution of the petition hinges on the interpretation of the pertinent provisions of the contract. Petitioner harps on the wording of the following provision of paragraph 1 of the contract to support his claim: 1. That effective this agricultural year 1984, which is scheduled to start in the month of September 1984 and every agricultural year thereafter until terminated or modified in accordance with law, an agricultural leasehold relation under the terms and conditions herein under specified is hereby created between the AGRICULTURAL LESSEE and the AGRICULTURAL LESSOR over a farm lot which is a portion of a parcel of land situated at Barrio San Vicente Municipality of Santa Maria Province of Bulacan owned or legally possessed by the AGRICULTURAL LESSOR and covered by Transfer Certificate of Title and Number ___ (sic) which lot consisting of 3.00 has., is bounded on: North ± land owned or cultivated by: River South -do- : Narciso Policarpio East -do- : Norberto Lorenzo West -do- : River"9 On the other hand, respondent refers to the following provisions of the contract to support his contention that the portion of the property planted with bamboo is excluded: xxxx 2. That the aforesaid is devoted to the production of palay crop(s) during the wet season.

xxxx 4. That the rental for said land shall be 33 cav. per annum or xx cavans of xx (crop) of palay (variety) at 46 kilos per cavan of the wet, season, said rentals representing the equivalent of 25% of the average normal harvest during the agricultural year 1970, 1971, 1972, after deducting from the gross harvest ______ (sic).10 (Underscoring supplied) And respondent invites attention to the omission to mention in the contract bamboos or the bambooland portion of the property. The petition fails. Above-quoted paragraph No. 1 of the contract relied upon by petitioner is clearly worded. It provides that "an agricultural leasehold relation . . . is . . . created . . . on a farm lotwhich is a portion of a parcel of land" covered by a transfer certificate of title consisting of three hectares, clearly referring to respondent¶s father¶s TCT No. 98.728 (M) containing three hectares. Art. 1370 of the New Civil Code which provides: Art. 1370. If the terms of the contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. x x x x (Underscoring supplied) thus applies. Petitioner insists, however, that: . . . the thirty-three (33) cavans of palay which [he] agreed to pay to the predecessor-in-interest of respondent is really for the entire three (3) hectare landholding. This is so because a landowner/landlord is usually entitled to TEN (10) cavans of palay per hectare.11 Petitioner¶s insistence, even if the literal meaning of the contractual provisions is set aside, does not lie. Acts contemporaneous and subsequent to the execution of the contract12 show that the parties intended to establish a tenancy relationship only as regards the rice-planted portion of the property. Thus, petitioner has been paying rentals in palay, not in bamboo. Annex "1" of respondent¶s position paper submitted to the Provincial Adjudicator,13 which is a handwritten list ("Listahan ng Ani [of petitioner]") made by respondent¶s father-predecessor-in-interest, shows under the column "Bigay" that petitioner was from 1981 up to 1994 paying annual rentals ranging from "28" to "33," which figures are consistent with the earlier-quoted stipulation in the contract for petitioner to pay rental of 33 cavans of palay per annum. Neither does petitioner¶s suggestion that there was a prevailing custom entitling landlords to a share of 10 cavans of palay per hectare lie, it not having been proven in accordance with Article 12 of the New Civil Code which provides: A custom must be proved as a fact, according to the rules of evidence.

The evidence proffered by respondent on the other hand abundantly shows that the bambooland portion of the property has always been untenanted, which evidence has not been controverted by petitioner. In fine, the contract, as well as the acts of both petitioner and respondent contemporaneous and subsequent to the execution thereof, shows that the parties established a tenancy relationship only with respect to the riceland portion of the property. WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated December 18, 2003 is AFFIRMED. SO ORDERED.

March 12, 1910 G.R. No. L-5396 CANUTO REYES, petitioner-appellee, vs. JACINTO LIMJAP, opponent-appellant. Ramon Fernandez, for appellant. Perfecto Gabriel, for appellee. Torres, J.: By a writing presented on the 3d of January, 1906, the representative of Ireneo Felix requested the registration of a parcel of land belonging to the latter, situated in the town of Antipolo, Rizal Province, bounded on the north by Calle Real; on the east by lots owned by Braulia Cuepangco and Engracia Loalhati; on the south by Calle Martinez; and on the west by lots belonging to Gregorio Lim and Braulia Cuepangco; it has an area of 815.98 square meters and its description and boundaries are stated in the plan attached to the petition; the said property, as alleged, was acquired by purchase from the owner of the same, Vicente Francisco Ayco, was assessed at the last assessment at $110 United States currency, and is free from all incumbrances, no one having any right or interest therein; it is now occupied by the applicant who, after the hearing of this case and before judgment was rendered in the premises, conveyed the said land by means of an absolute sale to Canuto Reyes for the sum of P600, according to the notarial instrument appearing at folio 78. On the 4th of April, 1907, the representative of Jacinto Limjap made written opposition to the foregoing application, requesting that the same be dismissed and that the registration of the said property in favor of Irineo Felix with cost be denied; he alleged that the opponent is the owner and present possessor of the land and denied that the applicant or his predecessors or principals had ever been in legal or material possession of the same, and also denied all the other allegations not expressly or implicitly denied in the previous paragraphs. The case came up for trial and evidence was adduced by both parties to the suit, the documents exhibited by them being made of record. On the 3d of March, 1909, the trial court overruled the opposition of Limjap and decreed the adjudication and registration of the aforesaid property in favor of Canuto Reyes, after declaring a General default. The opponent excepted to the foregoing decision and moved for a new trial, on the ground that the judgment was contrary to law and not sustained by the evidence; the motion was

overruled; the petitioner excepted and gave notice of his intention to appeal by the corresponding bill of exceptions which was presented, approved, and submitted to this court. From the record of the case forwarded by the Court of Land Registration upon this appeal, it is fully proven by means of documents and by the testimony of competent witnesses: (1) That Crisostomo Marero possessed the land in question under title of ownership and sold it under pacto de retro to Vicente Francisco Ayco on the 25th of May, 1874, for the sum of 60 pesos, on condition that the vendor and the purchaser would both receive as partners the rent that the house erected on said land should produce, according to document marked with the letter "B"; (2) that in view of the fact that the vendor did not redeem the property within the period fixed by article 1508 of the Civil Code, as no term whatever was stipulated in the contract sale with the right of repurchase, Vicente Francisco sold it on the 7th of December, 1906, to Irineo Felix under public instrument, folio 7, and the latter, after having applied for the registration of his title in the registry of property, also sold the said lot to Canuto Reyes, in whose favor the registration was decreed. It appears to have been admitted by the opponent, who did not impugn in due course the document marked as Exhibit B of the applicant, that Crisostomo Marero was the original owner and possessor of said land, and, as it does not appear that Marero had transferred his control over the property to Braulia Cuepangco, no possible reason exists under the law for considering the latter to be the lawful owner of the land; therefore, she could neither have disposed of it nor sold it to the opponent Limjap. As a matter of fact Cuepangco, as stated by her son-in-law and attorney-in-fact or representative, Dalmacio Guidote, in his affidavit, folio 99 of the record, never possessed nor pretended to own the said parcel of land situated between two lots belonging to his mother-in-law, and when he sold them in her behalf he did not include the intermediate lot, which was the property of one Marero, who subsequently sold it to the Chinaman Vicente Francisco, and the latter to Irineo Felix, and this fact was stated to the notary Manikis; and even though at first he refused to subscribed the instrument of sale drawn up by the said notary, because it referred to lands of larger area, he afterwards did so because after consulting with Attorney Sotelo, the notary assured him that as the writing contained no clause providing for the protection of purchaser from interference, nothing serious could happen. Article 430 of the Civil Code provides that "Natural possession is the holding of a thing or the enjoyment of a right by a person. Civil possession is the same holding or enjoyment, together with the intention of acquiring ownership of the thing or right." If Braulia Cuepangco was never inn material nor civil possession of the land in question, and did not even have the intention to possess it, and if her representative and son-in-law, Dalmacio Guidote, being well aware that the said land situated between the two parcels owned by his mother-in-law belonged to a third person, Irineo Felix, the last purchaser, and for this reason he did not include the same in the sale of the two parcels to Limjap, the latter could never have acquired any right to the land of the applicant, because none was transferred to him by the vendor Cuepangco, under the instrument marked with the letter A, folio 66, who was not the owner of the intermediate land or lot owned by Vicente Francisco, and finally sold to Canuto Reyes. With reference to the rights in the said land acquired by Vicente Francisco by virtue of the contract of sale contained in document marked "B," executed in his favor by the owner Crisostomo Marero, more than thirty years ago, in the presence of the gobernadorcillo accidental of Antipolo, notwithstanding the fact that it is not a transfer by a public instrument recorded in the registry of property, the transfer arose from a valid contract, and is legal and efficient; for this reason Vicente Francisco was the owner and possessor with just title and in good faith, and the right that he transmitted to the applicant must be sustained and protected by the courts while no better title under the law has been presented: nor has it been shown that the property was redeemed in due course. Therefore, the applicant has an unquestionable right to have his title recorded in the registry of property eFwiR5. With respect to the identity of the land, it has been sufficiently shown by the documents offered in evidence,

among which is the plan that was presented and which the witness Guidote had before him when testifying in the presence of the opponent, and also by the testimony of the witnesses examined at the trial. The opponent has not prove that the land, the registration of which has been applied for, is not the land described in the application, in the public instrument, and by the plan above referred to, or that it was larger than it should really be; for which reason, in the absence of proof to the contrary, it must be acknowledged and admitted that said facts so proven are true. The mere fact that in the instrument of sale of the lands of Cuepangco to Limjap a greater extension was stated than the actual area, including a parcel which belonged to another and not the property of the vendors, and not have conferred any right whatever to the purchase over the land improperly included, even though he consented to have the clause of eviction and warranty suppressed in the document, because the inclusion was made without the knowledge or consent of the real owner of the land, and Cuepangco, who did not own the property, could not disposed of it or sell it; and the pretension of the opponent is all the more unsustainable inasmuch as the representative of the vendor, who acted in her behalf in negotiating and closing the sale, frankly and spontaneously acknowledged that an error had been committed by including in the document the land of the applicant which has not been, and could not be included in the sale, that he had endeavored to correct the error, and that if he subsequently subscribed the instrument it was through the advice of the lawyer, who assured him that nothing could happen if said clause of eviction and warranty were suppressed. Article 1281, paragraph 2 of the Civil Code provides that "If the words should appear contrary to the evident intention of the contracting parties, the intention shall prevail." Article 1283 of said code prescribes that "However general the terms of a contract may be, there should not be understood as included therein things and cases different from those with regard to which the persons interested intended to contract." Hence, considering that the land of the applicant was not the subject of the contract, and that it could not so be for the reason that it did not belong to the vendor, it can no wise be understood as included in the instrument of sale which appears at folio 66, no matter what may be the terms of the document. For the foregoing reasons, by which are refuted the errors assigned to the judgment appealed from, wherein the deposition of witness Vicente Francisco is entirely disregarded, it is our opinion that the said judgment should be and is hereby affirms, with the costs against the appellant. So ordered.

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