Succession Cases Part I The real properties involved are two
parcels of land identified as Lot 773-A
3. Objects of Succession
a. transmissible rights and obligations
[ G.R. No. 68053, May
07, 1990 ]
LAURA ALVAREZ, FLORA
ALVAREZ AND RAYMUNDO
ALVAREZ, PETITIONERS, VS. THE
HONORABLE INTERMEDIATE
APPELLATE COURT AND JESUS
YANES, ESTELITA YANES,
ANTONIO YANES, ROSARIO
YANES, AND ILUMINADO YANES,
RESPONDENTS.
DECISION
FERNAN, C.J.:
This is a petition for review
on certiorari seeking the reversal of: (a)
the decision of the Fourth Civil Cases
Division of the Intermediate Appellate
Court dated August 31, 1983 in AC-G.R.
CV No. 56626 entitled "Jesus Yanes et al.
v. Dr. Rodolfo Siason et al." affirming the
decision dated July 8, 1974 of the Court
of First Instance of Negros Occidental
insofar as it ordered the petitioners to
pay jointly and severally the private
respondents the sum of P20,000.00
representing the actual value of Lots Nos.
773-A and 773-B of the cadastral survey
of Murcia, Negros Occidental
and reversing the subject decision
insofar as it awarded the sums of
P2,000.00, P5,000.00 and P2,000.00 as
actual damages, moral damages and
attorney's fees, respectively and (b) the
resolution of said appellate court dated
May 30, 1984, denying the motion for
reconsideration of its decision.
and Lot 773-B which were originally
known as Lot 773 of the cadastral survey
of Murcia, Negros Occidental. Lot 773,
with an area of 156,549 square meters,
was registered in the name of the heirs
of Aniceto Yanes under Original
Certificate of Title No. R0-4858 (8804)
issued on October 9, 1917 by the
Register of Deeds of
Occidental Negros (Exh. A).
Aniceto Yanes was survived by his
children, Rufino, Felipe
and Teodora. Herein private
respondents, Estelita, Iluminado and
Jesus, are the children of Rufino who
died in 1962 while the other private
respondents, Antonio and Rosario Yanes,
are children of Felipe. Teodora was
survived by her
child, Jovita (Jovito) Alib.[1] It is not clear
why the latter is not included as a party
in this case.
Aniceto left his children Lots 773 and
823. Teodora cultivated only three
hectares of Lot 823 as she could not
attend to the other portions of the two
lots which had a total area of around
twenty-four hectares. The record does
not show whether the children of Felipe
also cultivated some portions of the lots
but it is established that Rufino and his
children left the province to settle in
other places as a result of the outbreak
of World War II. According to Estelita,
from the "Japanese time up to peace
time", they did not visit the parcels of
land in question but "after liberation",
when her brother went there to get their
share of the sugar produced therein, he
was informed
that Fortunato Santiago, Fuentebella (Pu
entevella) and Alvarez were in
possession of Lot 773.[2]
It is on record that on May 19,
1938, Fortunato D. Santiago was issued
Transfer Certificate of Title No. RF 2694
(29797) covering Lot 773-A with an area
of 37,818 square meters.[3] TCT No. RF
2694 describes Lot 773-A as a portion
of Lot 773 of the cadastral survey
of Murcia and as originally registered
under OCT No. 8804.
The bigger portion of Lot 773 with an
area of 118,831 square meters was also
registered in the name of Fortunato D.
Santiago on September 6, 1938 under
TCT No. RT-2695 (28192).[4] Said transfer
certificate of title also contains a
certification to the effect that Lot 773-B
was originally registered under OCT No.
8804.
On May 30, 1955, Santiago sold Lots
773-A and 773-B
to Monico B. Fuentebella, Jr. in
consideration of the sum of
P7,000.00.[5] Consequently, on February
20, 1956, TCT Nos. T-19291 and T-
19292 were issued
in Fuentebella's name.[6]
After Fuentebella's death and during the
settlement of his estate,
the administratrix thereof
(Arsenia R. Vda. de Fuentebella, his wife)
filed in Special Proceedings No. 4373 in
the Court of First Instance
of Negros Occidental, a motion
requesting authority to sell Lots 773-A
and 773-B.[7] By virtue of a court order
granting said motion,[8] on March 24,
1958, Arsenia Vda. de Fuentebella sold
said lots for P6,000.00
to Rosendo Alvarez.[9] Hence, on April 1,
1958, TCT Nos. T-23165 and T-23166
covering Lots 773-A and 773-B were
respectively issued to Rosendo Alvarez.[10]
Two years later or on May 26,
1960, Teodora Yanes and the children of
her brother Rufino,
namely, Estelita, Iluminado and Jesus,
filed in the Court of First Instance
of Negros Occidental a complaint
against Fortunato Santiago, Arsenia Vda.
de Fuentebella, Alvarez and the Register
of Deeds of Negros Occidental for the
"return" of the ownership and possession
of Lots 773 and 823. They also prayed
that an accounting of the produce of the
land from 1944 up to the filing of the
complaint be made by the defendants,
that after court approval of said
accounting, the share or money
equivalent due the plaintiffs be delivered
to them, and that defendants be ordered
to pay plaintiffs P500.00 as damages in
the form of attorney's fees.[11]
During the pendency in court of said case
or on November 13, 1961, Alvarez sold
Lots 773-A, 773-B and another lot for
P25,000.00 to Dr.
Rodolfo Siason.[12] Accordingly, TCT Nos.
30919 and 30920 were issued
to Siason,[13] who, thereafter, declared
the two lots in his name for assessment
purposes.[14]
Meanwhile, on November 6, 1962,
Jesus Yanes, in his own behalf and in
behalf of the other plaintiffs, and assisted
by their counsel, filed a manifestation in
Civil Case No. 5022 stating that the
therein plaintiffs "renounce, forfeit and
quitclaims (sic) any claim, monetary or
otherwise, against the
defendant Arsenia Vda. de Fuentebella in
connection with the above -entitled
case".[15]
On October 11, 1963, a decision was
rendered by the Court of First Instance
of Negros Occidental in Civil Case No.
5022, the dispositive portion of which
reads:
"WHEREFORE, judgment is rendered,
ordering the defendant Rosendo Alvarez
to reconvey to the plaintiffs lots Nos. 773
and 823 of the Cadastral Survey of
Murcia, Negros Occidental, now covered
by Transfer Certificates of Title Nos. T-
23165 and T-23166 in the name of said
defendant, and thereafter to deliver the
possession of said lots to the
plaintiffs. No special pronouncement as
to costs.
SO ORDERED."[16]
It will be noted that the above-
mentioned manifestation of
Jesus Yanes was not mentioned in the
aforesaid decision:
However, execution of said decision
proved unsuccessful with respect
to Lot 773. In his return of service dated
October 20, 1965, the sheriff stated that
he discovered that Lot 773 had been
subdivided into Lots 773-A and 773-B;
that they were "in the name" of
Rodolfo Siason who had purchased them
from Alvarez, and that Lot 773 could not
be delivered to the plaintiffs
as Siason was "not a party per writ of
execution."[17]
The execution of the decision in Civil
Case No. 5022 having met a hindrance,
herein private respondents (the Yaneses)
filed on July 31, 1965, in the Court of
First Instance of Negros Occidental a
petition for the issuance of a new
certificate of title and for a declaration of
nullity of TCT Nos. T-23165 and T-23166
issued to Rosendo Alvarez.[18] Thereafter,
the court required Rodolfo Siason to
produce the certificates of title covering
Lots 773 and 823.
Expectedly, Siason filed a manifestation
stating that he purchased Lots 773-A,
773-B and 658, not Lots 773 and 823,
"in good faith and for a valuable
consideration without any knowledge of
any lien or encumbrances against
said propert(ies)"; that the decision in
the cadastral proceeding[19] could not be
enforced against him as he was not a
party thereto; and that the decision in
Civil Case No. 5022 could neither be
enforced against him not only because
he was not a party-litigant therein but
also because it had long become final
and executory.[20] Finding said
manifestation to be well-founded, the
cadastral court, in its order of September
4, 1965, nullified its previous order
requiring Siason to surrender the
certificates of title mentioned therein.[21]
In 1968, the Yaneses filed an ex-
parte motion for the issuance of an alias
writ of execution in Civil Case No.
5022. Siason opposed it.[22] In its order
of September 28, 1968 in Civil Case No.
5022, the lower court, noting that
the Yaneses had instituted another action
for the recovery of the land in question,
ruled that the judgment therein could not
be enforced against Siason as he was not
a party in the case.[23]
The action filed by
the Yaneses on February 21, 1968 was
for recovery of real property with
damages.[24] Named defendants therein
were Dr. Rodolfo Siason, Laura Alvarez,
Flora Alvarez, Raymundo Alvarez and the
Register of Deeds
of Negros Occidental. The Yaneses praye
d for the cancellation of TCT Nos. T-
19291 and 19292 issued to Siason (sic)
for being null and void; the issuance of a
new certificate of title in the name of
the Yaneses "in accordance with the
sheriff's, return of service dated October
20, 1965"; Siason's delivery of
possession of Lot 773 to the Yaneses;
and if, delivery thereof could not be
effected, or, if the issuance of a new title
could not be made, that
the Alvarezes and Siason jointly and
severally pay the Yaneses the sum of
P45,000.00. They also prayed
that Siason render an accounting of the
fruits of Lot 773 from November 13,
1961 until the filing of the complaint;
and that the defendants jointly and
severally pay the Yaneses moral
damages of P20,000.00 and exemplary
damages of P10,000.00 plus attorney's
fees of P4,000.00.[25]
In his answer to the
complaint, Siason alleged that the
validity of his titles to Lots 773-A and
773-B, having been passed upon by the
court in its order of September 4, 1965,
had become res judicata and
the Yaneses were estopped from
questioning said order.[26] On their part,
the Alvarezes stated in their answer that
the Yaneses’ cause of action had been
"barred by res judicata, statute of
limitation and estoppel."[27]
In its decision of July 8, 1974, the lower
court found that Rodolfo Siason, who
purchased the properties in question thru
an agent as he was then
in Mexico pursuing further medical
studies, was a buyer in good faith for a
valuable consideration. Although
the Yaneses were negligent in their
failure to place a notice
of lis pendens "before the Register of
Deeds of Negros Occidental in order to
protect their rights over the property in
question" in Civil Case No. 5022, equity
demanded that they recover the actual
value of the land because the sale
thereof executed between Alvarez
and Siason was without court
approval.[28] The dispositive portion of the
decision states:
"IN VIEW OF THE FOREGOING
CONSIDERATION, judgment is hereby
rendered in the following manner:
A. The case against the defendant Dr.
Rodolfo Siason and the Register of Deeds
are (sic) hereby dismissed.
B. The defendants, Laura, Flora
and Raymundo, all surnamed Alvarez
being the legitimate children of the
deceased Rosendo Alvarez are hereby
ordered to pay jointly and severally the
plaintiffs the sum of P20,000
representing the actual value of Lots Nos.
773-A and 773-B of Murcia
Cadastre, Negros Occidental; the sum of
P2,000.00 as actual damages suffered by
the plaintiffs; the sum of P5,000
representing moral damages and the
sum of P2,000 as attorney's fees, all with
legal rate of interest from date of the
filing of this complaint up to final
payment.
C. The cross-claim filed by the
defendant Dr. Rodolfo Siason against the
defendants, Laura, Flora and Raymundo,
all surnamed Alvarez is hereby dismissed.
D. Defendants, Laura, Flora
and Raymundo, all surnamed Alvarez,
are hereby ordered to pay the costs of
this suit.
SO ORDERED."[29]
The Alvarezes appealed to the then
Intermediate Appellate Court which, in
its decision of August 31,
1983,[30] affirmed the lower court's
decision "insofar as it ordered defendant-
appellants to pay jointly and severally
the plaintiffs-appellees the sum of
P20,000.00 representing the actual value
of Lots Nos. 773-A and 773-B of the
cadastral survey of
Murcia, Negros Occidental, and is
reversed insofar as it awarded the sums
of P2,000.00, P5,000.00 and P2,000.00
as actual damages, moral damages' and
attorney's fees, respectively."[31]
The dispositive portion of said decision
reads:
"WHEREFORE, the decision appealed
from is affirmed insofar as it ordered
defendants-appellants to pay jointly and
severally the plaintiffs-appellees the sum
of P20,000.00 representing the actual
value of Lots Nos. 773-A and 773-B of
the cadastral survey of
Murcia, Negros Occidental, and is
reversed insofar as it awarded the sums
of P2,000.00, P5,000.00 and P2,000.00
as actual damages, moral damages and
attorney's fees, respectively. No costs.
SO ORDERED."[32]
Finding no cogent reason to grant
appellants' motion for reconsideration,
said appellate court denied the same.
Hence, the instant petition.
In their memorandum petitioners raised
the following issues:
1. Whether or not the defense of
prescription and estoppel had been
timely and properly invoked and raised
by the petitioners in the lower court.
2. Whether or not the cause and/or
causes of action of the private
respondents, if ever there are any, as
alleged in their complaint dated February
21, 1968 which has been docketed in the
trial court as Civil Case No. 8474 supra,
are forever barred by statute of
limitation and/or prescription of action
and estoppel.
3. Whether or not the
late Rosendo Alvarez, a defendant in Civil
Case No. 5022, supra, and father of the
petitioners become a privy and/or party
to the waiver (Exhibit "4"-
defendant Siason) in Civil Case No.
8474, supra, where the private
respondents had unqualifiedly and
absolutely waived, renounced and
quitclaimed all their alleged rights and
interests, if ever there is any, on Lots
Nos. 773-A and 773-B of Murcia
Cadastre as appearing in their written
manifestation dated November 6, 1962
(Exhibits "4:-Siason) which had not
been controverted or even impliedly or
indirectly denied by them.
4. Whether or not the liability or
liabilities of Rosendo Alvarez arising from
the sale of Lots Nos. 773-A and 773-B of
Murcia Cadastre to Dr. Rodolfo Siason, if
ever there is any, could be legally passed
or transmitted by operations (sic) of law
to the petitioners without violation of law
and due process."[33]
The petition is devoid of merit.
As correctly ruled by the Court of
Appeals, it is powerless and for that
matter so is the Supreme Court, to
review the decision in Civil Case No.
5022 ordering Alvarez to reconvey the
lots in dispute to herein private
respondents. Said decision had long
become final and executory and with the
possible exception of Dr. Siason, who
was not a party to said case, the decision
in Civil Case No. 5022 is the law of the
case between the parties thereto. It
ended when Alvarez or his heirs failed to
appeal the decision against them.[34]
Thus, it is axiomatic that when a right or
fact has been judicially tried and
determined by a court of competent
jurisdiction, so long as it
remains unreversed, it should be
conclusive upon the parties and those
in privity with them in law or estate.[35] As
consistently ruled by this Court, every
litigation must come to an end. Access
to the court is guaranteed. But there
must be a limit to it.
Once a litigant's right has been
adjudicated in a valid final judgment of a
competent court, he should not be
granted an unbridled license to return for
another try. The prevailing party should
not be harassed by subsequent
suits. For, if endless litigation were to be
allowed, unscrupulous litigations will
multiply in number to the detriment of
the administration of justice.[36]
There is no dispute that the rights of
the Yaneses to the properties in question
have been finally adjudicated in Civil
Case No. 5022. As found by the lower
court, from the uncontroverted evidence
presented, the Yaneses have been
illegally deprived of ownership and
possession of the lots in question.[37]. In
fact, Civil Case No. 8474 now under
review, arose from the failure to execute
Civil Case No. 5022, as subject lots can
no longer be reconveyed to private
respondents Yaneses, the same having
been sold during the pendency of the
case by the petitioners’ father to
Dr. Siason who did not know about the
controversy, there being
no lis pendens annotated on the
titles. Hence, it was also settled beyond
question that Dr. Siason is a purchaser-
in-good faith.
Under the circumstances, the trial court
did not annul the sale executed by
Alvarez in favor of Dr. Siason on
November 11, 1961 but in fact sustained
it. The trial court ordered the heirs
of Rosendo Alvarez who lost in Civil Case
No. 5022 to pay the plaintiffs (private
respondents herein) the amount of
P20,000.00 representing the actual value
of the subdivided lots in dispute. It did
not order defendant Siason to pay said
amount.[38]
As to the propriety of the present case, it
has long been established that the sole
remedy of the landowner whose property
has been wrongfully or erroneously
registered in another's name is to bring
an ordinary action in the ordinary court
of justice for reconveyance or, if the
property has passed into the hands of an
innocent purchaser for value, for
damages.[39] "It is one thing to protect an
innocent third party; it is entirely a
different matter and one devoid of
justification if deceit would be rewarded
by allowing the perpetrator to enjoy the
fruits of his nefarious deed. As clearly
revealed by the undeviating line of
decisions coming from this Court, such
an undesirable eventuality is precisely
sought to be guarded against"[40]
The issue on the right to the properties
in litigation having been finally
adjudicated in Civil Case No. 5022 in
favor of private respondents, it cannot
now be reopened in the instant case on
the pretext that the defenses of
prescription and estoppel have not been
properly considered by the lower
court. Petitioners could have appealed in
the former case but they did not. They
have therefore foreclosed their rights, if
any, and they cannot now be heard to
complain in another case in order to
defeat the enforcement of a judgment
which has long become final
and executory.
Petitioners further contend that the
liability arising from the sale of said Lots
Nos. 773-A and 773-B made
by Resendo Alvarez to Dr.
Rodolfo Siason should be the sole liability
of the late Rosendo Alvarez or of his
estate, after his death.
Such contention is untenable for it
overlooks the doctrine obtaining in this
jurisdiction on the general
transmissibility of the rights and
obligations of the deceased to his
legitimate children and heirs. Thus, the
pertinent provisions of the Civil Code
state:
"Art. 774. Succession is a mode of
acquisition by virtue of which the
property, rights and obligations to the
extent of the value of the inheritance, of
a person are transmitted through his
death to another or others either by his
will or by operation of law.
"Art. 776. The inheritance includes all
the property, rights and obligations of a
person which are not extinguished by his
death.
"Art. 1311. Contracts take effect only
between the parties, their assigns and
heirs, except in case where the rights
and obligations arising from the contract
are not transmissible by their nature, or
by stipulation or by provision of law. The
heir is not liable beyond the value of the
property received from the decedent."
As explained by this Court through
Associate Justice J.B.L. Reyes in the case
of Estate of Hemady vs. Luzon Surety
Co., Inc.[41]
"The binding effect of contracts upon the
heirs of the deceased party is not altered
by the provision of our Rules of Court
that money debts of a deceased must be
liquidated and paid from his estate
before the residue is distributed among
said heirs (Rule 89). The reason is that
whatever payment is thus made from the
state is ultimately a payment by the
heirs or distributees, since the amount of
the paid claim in fact diminishes or
reduces the shares that the heirs would
have been entitled to receive.
Petitioners being the heirs of the
late Rosendo Alvarez, they cannot
escape the legal consequences of their
father's transaction, which gave rise to
the present claim for damages. That
petitioners did not inherit the property
involved herein is of no moment because
by legal fiction, the monetary equivalent
thereof devolved into the mass of their
father's hereditary estate, and we have
ruled that the hereditary assets are
always liable in their totality for the
payment of the debts of the estate.[42]
It must, however, be made clear that
petitioners are liable only to the extent of
the value of their inheritance. With this
clarification and considering petitioners’
admission that there are other properties
left by the deceased which are sufficient
to cover the amount adjudged in favor of
private respondents, we see no cogent
reason to disturb the findings and
conclusions of the Court of Appeals.
WHEREFORE, subject to the clarification
herein above stated, the assailed
decision of the Court of Appeals is hereby
AFFIRMED. Costs against petitioners.

"Under our law, therefore, the general SO ORDERED.

rule is that a party's contractual rights
and obligations are transmissible to the
successors. The rule is a consequence of
the progressive ‘depersonalization’ of
patrimonial rights and duties that, as
observed by Victorio Polacco, has
characterized the history of these
institutions. From the Roman concept of
a relation from person to person, the
obligation has evolved into a relation
from patrimony to patrimony, with the
persons occupying only a representative
position, barring those rare cases where
the obligation is strictly personal, i. e., is
contracted intuitu personae, in
consideration of its performance by a
specific person and by no other. x x x"
RAFAEL REYES, PLAINTIFF AND
APPELLEE, VS. LEONARDO
OSORIO, DEFENDANT AND
APPELLANT.
DECISION
AVANCEÑA, J.:
In this case the plaintiff claims from the
defendant the payment of the sums of
P7,779.76, P1,225.04 and P1,500, which
make the total of P10,504.80. The
defendant, on the other hand, demands
from the plaintiff, as a counterclaim, the
sum of five thousand six hundred dollars
($5,600). At the trial on October 29,
1917, counsel for both parties appeared
and, after hearing the evidence of the
plaintiff, the counsel for the defendant
asked the court to grant him a fix time
within which to present the evidence for
the defense on the ground that the
defendant, who was a witness, had not
yet arrived. The counsel for the
defendant also asked the court that, at
all events, the right to bring a separate
action for the recovery of the sum
mentioned in the defendant's
counterclaim be reserved to him. The
court denied these requests and, after
the trial of case, rendered its decision, on
the 30th of the said month, absolving the
plaintiff from the counterclaim and
sentencing the defendant to pay to the
plaintiff the sums of P7,779.76 with
interest at the rate of 9 per cent per
annum beginning January 25, 1916, until
the full payment of P1,225.04, and of
P1,500, together with the costs. From
this decision the defendant appealed,
and in this instance assigns the following
errors:
"1. The court erred in pronouncing
judgment with the case intthe condition
it was on the day of trial.
"2. The court erred in overruling the
motion of the defendant praying for the
reservation of a separate action for the
sum mentioned in his counterclaim.
"3. The court erred in absolving the
plaintiff from the counterclaim or cross
complaint.
"4. The court erred in sentencing the
defendant to pay plaintiff the sums he
demanded."
These assignments of error do not merit
any consideration, unless, under the
supposition that the defendant may have
satisfactorily explained his non-
appearance on the day of the trial of the
case. However the defendant has neither
submitted, nor tried to submit, any
explanation of his non- appearance.
Furthermore, after reviewing the
evidence, we have found that it
sufficiently justifies the decision of the
court.
In regard to the motion by which the
right shall be reserved to the defendant
to present his counterclaim in a separate
action against the plaintiff, it ought to be
observed that, according to the
allegations in the briefs of the parties,
this counterclaim necessarily has a
bearing on the complaint and, in
accordance with section 97 of the Code
of Civil Procedure, must be set up in this
same action, on pain of defendant losing
his right of action. Wherefore, the
reservation by which the defendant
would be able to present his
counterclaim in a separate action against
the plaintiff is tantamount to depriving
the'plaintiff of defense against the
counterclaim, a defense which this
section 97 grants him in the event that
this counterclaim is not set up in said
action. The court cannot arbitrarily
deprive the plaintiff of this right, as
would have done had the motion of the
defendant been granted. Consequently,
the court did not err in overruling the
said motion.

From another view point, considering the

appellant as plaintiff in connection with
his counterclaim asking for the dismissal
of this counterclaim without prejudice to
the right of presenting, it as a principal
action at some later time, the court did
not err in overruling this motion. Section
127 of the Code of Civil Procedure allows
the dismissal of an action at the request
of the plaintiff provided a counterclaim
may not have been presented. As a
counterclaim always takes for granted a
complaint, it appears that, for the same
reason the dismissal of a counterclaim,
with a reservation by which it may be
presented again by means of another
action, ought not to be permitted. Courts
can, in their discretion, deny the setting
aside of any case whatsoever when the
defendant has already prepared for the
trial in such a way that to allow the
setting aside of a case without a hearing
in conformity with law would be unjust.
Such is the circumstance in the present
case, for the plaintiff appeared on the
day fixed, not only by his complaint but
also by the counterclaim of the
defendant, presented his evidence, and
submitted the case for decision. Under
such conditions it would have been
unjust to the plaintiff not to take action
on the counterclaim of the defendant.

The judgment appealed from is hereby

affirmed with the costs against the
appellant. So ordered.
b. rights and obligations extinguished by death
NATIONAL HOUSING
AUTHORITY, PETITIONER, VS.
SEGUNDA ALMEIDA, COURT OF
APPEALS, AND RTC OF SAN
PEDRO, LAGUNA, BR. 31,
RESPONDENTS.
DECISION
PUNO, C.J.:
This is a Petition for Review on Certiorari
under Rule 45 filed by the National
Housing Authority (NHA) against the
Court of Appeals, the Regional Trial Court
of San Pedro Laguna, Branch 31, and
private respondent Segunda Almeida.
On June 28, 1959, the Land Tenure
Administration (LTA) awarded to
Margarita Herrera several portions of
land which are part of the Tunasan
Estate in San Pedro, Laguna. The award
is evidenced by an Agreement to Sell No.
3787.[1] By virtue of Republic Act No.
3488, the LTA was succeeded by the
Department of Agrarian Reform (DAR).
On July 31, 1975, the DAR was
succeeded by the NHA by virtue of
Presidential Decree No. 757.[2] NHA as
the successor agency of LTA is the
petitioner in this case.
The records show that Margarita Herrera
had two children: Beatriz Herrera-
Mercado (the mother of private
respondent) and Francisca Herrera.
Beatriz Herrera-Mercado predeceased
her mother and left heirs.
Margarita Herrera passed away on
October 27, 1971.[3]
On August 22, 1974, Francisca Herrera,
the remaining child of the late Margarita
Herrera executed a Deed of Self-
Adjudication claiming that she is the only
remaining relative, being the sole
surviving daughter of the deceased. She
also claimed to be the exclusive legal
heir of the late Margarita Herrera.
The Deed of Self-Adjudication was based
on a Sinumpaang Salaysay dated
October 7, 1960, allegedly executed by
Margarita Herrera. The pertinent portions
of which are as follows:
SINUMPAANG SALAYSAY
SA SINO MAN KINAUUKULAN;
Akong si MARGARITA HERRERA, Filipina,
may 83 taong gulang, balo,
kasalukuyang naninirahan at
tumatanggap ng sulat sa Nayon ng San
Vicente, San Pedro Laguna, sa ilalim ng
panunumpa ay malaya at kusang loob
kong isinasaysay at pinagtitibay itong
mga sumusunod:
1. Na ako ay may tinatangkilik
na isang lagay na lupang
tirikan (SOLAR), tumatayo sa
Nayon ng San Vicente, San
Pedro, Laguna, mayroong
PITONG DAAN AT PITUMPU'T
ISANG (771) METRONG
PARISUKAT ang laki, humigit
kumulang, at makikilala sa
tawag na Lote 17, Bloke 55,
at pag-aari ng Land Tenure
Administration;
2. Na ang nasabing lote ay
aking binibile, sa
pamamagitan ng paghuhulog
sa Land Tenure
Administration, at noong ika
30 ng Julio, 1959, ang
Kasunduang sa Pagbibile
(AGREEMENT TO SELL No.
3787) ay ginawa at
pinagtibay sa Lungsod ng
Maynila, sa harap ng Notario
 Publico na si G. Jose C.
Tolosa, at lumalabas sa
kaniyang Libro Notarial
bilang Documento No. 13,
Pagina No. 4; Libro No. IV,
Serie ng 1959;
3. Na dahilan sa ako'y matanda
na at walang ano mang
hanap buhay, ako ay
nakatira at pinagsisilbihan
nang aking anak na si
Francisca Herrera, at ang
tinitirikan o solar na nasasabi
sa unahan ay binabayaran ng
kaniyang sariling cuarta sa
Land Tenure Administration;
4. Na alang-alang sa
nasasaysay sa unahan nito,
sakaling ako'y bawian na ng
Dios ng aking buhay, ang
lupang nasasabi sa unahan
ay aking ipinagkakaloob sa
nasabi kong anak na
FRANCISCA HERRERA,
Filipina, nasa katamtamang
gulang, kasal kay Macario
Berroya, kasalukuyang
naninirahan at tumatanggap
ng sulat sa Nayong ng San
Vicente, San Pedro Laguna, o
sa kaniyang mga
tagapagmana at;
5. Na HINIHILING KO sa sino
man kinauukulan, na
sakaling ako nga ay bawian
na ng Dios ng aking buhay
ay KILALANIN, IGALANG at
PAGTIBAYIN ang nilalaman
sa pangalan ng aking anak
na si Francisca Herrera ang
loteng nasasabi sa unahan.
SA KATUNAYAN NG LAHAT,
ako ay nag-didiit ng hinlalaki
ng kanan kong kamay sa
ibaba nito at sa kaliwang gilid
ng unang dahon, dito sa
Lungsod ng Maynila, ngayong
ika 7 ng Octubre, 1960. [4]
The said document was signed by two
witnesses and notarized. The witnesses
signed at the left-hand side of both
pages of the document with the said
document having 2 pages in total.
Margarita Herrera placed her
thumbmark[5] above her name in the
second page and at the left-hand margin
of the first page of the document.
The surviving heirs of Beatriz Herrera-
Mercado filed a case for annulment of the
Deed of Self-Adjudication before the then
Court of First Instance of Laguna, Branch
1 in Binan, Laguna (now, Regional Trial
Court Branch 25). The case for
annulment was docketed as Civil Case No.
B-1263.[6]
On December 29, 1980, a Decision in
Civil Case No. B-1263 (questioning the
Deed of Self-Adjudication) was rendered
and the deed was declared null and
void.[7]
During trial on the merits of the case
assailing the Deed of Self-Adjudication,
Francisca Herrera filed an application
with the NHA to purchase the same lots
submitting therewith a copy of the
"Sinumpaang Salaysay" executed by her
mother. Private respondent Almeida, as
heir of Beatriz Herrera-Mercado,
protested the application.
In a Resolution[8] dated February 5, 1986,
the NHA granted the application made by
Francisca Herrera, holding that:
From the evidence of the parties and the
records of the lots in question, we
gathered the following facts: the lots in
question are portions of the lot awarded
and sold to the late Margarita Herrera on
July 28, 1959 by the defunct Land
Tenure Administration; protestant is the
daughter of the late Beatriz Herrera
Mercado who was the sister of the
protestee; protestee and Beatriz are
children of the late Margarita Herrera;
Beatriz was the transferee from
Margarita of Lot Nos. 45, 46, 47, 48 and
49, Block 50; one of the lots transferred
to Beatriz, e.g. Lot 47, with an area of
148 square meters is in the name of the
protestant; protestant occupied the lots
in question with the permission of the
protestee; protestee is a resident of the
Tunasan Homesite since birth; protestee
was born on the lots in question;
protestee left the place only after
marriage but resided in a lot situated in
the same Tunasan Homesite; her
(protestee) son Roberto Herrera has
been occupying the lots in question; he
has been there even before the death of
the late Margarita Herrera; on October
7, 1960, Margarita Herrera executed
a "Sinumpaang Salaysay" whereby
she waived or transferred all her
rights and interest over the lots in
question in favor of the
protestee; and protestee had paid the
lots in question in full on March 8, 1966
with the defunct Land Tenure
Administration.
This Office finds that protestee has a
better preferential right to purchase the
lots in question.[9]
Private respondent Almeida appealed to
the Office of the President.[10] The NHA
Resolution was affirmed by the Office of
the President in a Decision dated January
23, 1987.[11]
On February 1, 1987, Francisca Herrera
died. Her heirs executed an extrajudicial
settlement of her estate which they
submitted to the NHA. Said transfer of
rights was approved by the NHA.[12] The
NHA executed several deeds of sale in
favor of the heirs of Francisca Herrera
and titles were issued in their
favor.[13] Thereafter, the heirs of
Francisca Herrera directed Segunda
Mercado-Almeida to leave the premises
that she was occupying.
Feeling aggrieved by the decision of the
Office of the President and the resolution
of the NHA, private respondent Segunda
Mercado-Almeida sought the cancellation
of the titles issued in favor of the heirs of
Francisca. She filed a Complaint on
February 8, 1988, for "Nullification of
Government Lot's Award," with the
Regional Trial Court of San Pedro,
Laguna, Branch 31.
In her complaint, private respondent
Almeida invoked her forty-year
occupation of the disputed properties,
and re-raised the fact that Francisca
Herrera's declaration of self-adjudication
has been adjudged as a nullity because
the other heirs were disregarded. The
defendant heirs of Francisca Herrera
alleged that the complaint was barred by
laches and that the decision of the Office
of the President was already final and
executory.[14] They also contended that
the transfer of purchase of the subject
lots is perfectly valid as the same was
supported by a consideration and that
Francisca Herrera paid for the property
with the use of her own
money.[15] Further, they argued that
plaintiff's occupation of the property was
by mere tolerance and that they had
been paying taxes thereon.[16]
The Regional Trial Court issued an Order
dated June 14, 1988 dismissing the case
for lack of jurisdiction.[17] The Court of
Appeals in a Decision dated June 26,
1989 reversed and held that the Regional
Trial Court had jurisdiction to hear and
decide the case involving "title and
possession to real property within its
jurisdiction."[18] The case was then
remanded for further proceedings on the
merits.
A pre-trial was set after which trial
ensued.
On March 9, 1998, the Regional Trial
Court rendered a Decision setting aside
the resolution of the NHA and the
decision of the Office of the President
awarding the subject lots in favor of
Francisca Herrera. It declared the deeds
of sale executed by NHA in favor of
Herrera's heirs null and void. The
Register of Deeds of Laguna, Calamba
Branch was ordered to cancel the
Transfer Certificate of Title issued.
Attorney's fees were also awarded to
private respondent.
The Regional Trial Court ruled that the
"Sinumpaang Salaysay" was not an
assignment of rights but a disposition of
property which shall take effect upon
death. It then held that the said
document must first be submitted to
probate before it can transfer property.
Both the NHA and the heirs of Francisca
Herrera filed their respective motions for
reconsideration which were both denied
on July 21, 1998 for lack of merit. They
both appealed to the Court of Appeals.
The brief for the heirs of Francisca
Herrera was denied admission by the
appellate court in a Resolution dated
June 14, 2002 for being a "carbon copy"
of the brief submitted by the NHA and for
being filed seventy-nine (79) days late.
On August 28, 2003, the Court of
Appeals affirmed the decision of the
Regional Trial Court, viz:
There is no dispute that the right to
repurchase the subject lots was awarded
to Margarita Herrera in 1959. There is
also no dispute that Margarita executed a
"Sinumpaang Salaysay" on October 7,
1960. Defendant NHA claims that the
"Sinumpaang Salaysay" is, in effect, a
waiver or transfer of rights and interest
over the subject lots in favor of Francisca
Herrera. This Court is disposed to believe
otherwise. After a perusal of the
"Sinumpaang Salaysay" of Margarita
Herrera, it can be ascertained from its
wordings taken in their ordinary and
grammatical sense that the document is
a simple disposition of her estate to take
effect after her death. Clearly the Court
finds that the "Sinumpaang Salaysay" is
a will of Margarita Herrera. Evidently, if
the intention of Margarita Herrera was to
merely assign her right over the lots to
her daughter Francisca Herrera, she
should have given her "Sinumpaang
Salaysay" to the defendant NHA or to
Francisca Herrera for submission to the
defendant NHA after the full payment of
the purchase price of the lots or even
prior thereto but she did not. Hence it is
apparent that she intended the
"Sinumpaang Salaysay" to be her last
will and not an assignment of rights as
what the NHA in its resolution would
want to make it appear. The intention of
Margarita Herrera was shared no less by
Francisca Herrera who after the former's
demise executed on August 22, 1974 a
Deed of Self-Adjudication claiming that
she is her sole and legal heir. It was only
when said deed was questioned in court
by the surviving heirs of Margarita
Herrera's other daughter, Beatriz
Mercado, that Francisca Herrera filed an
application to purchase the subject lots
and presented the "Sinumpaang
Salaysay" stating that it is a deed of
assignment of rights.[19]
The Court of Appeals ruled that the NHA
acted arbitrarily in awarding the lots to
the heirs of Francisca Herrera. It upheld
the trial court ruling that the
"Sinumpaang Salaysay" was not an
assignment of rights but one that
involved disposition of property which
shall take effect upon death. The issue of
whether it was a valid will must first be
determined by probate.
Petitioner NHA elevated the case to this
Court.
Petitioner NHA raised the following
issues:
A. WHETHER OR NOT THE
RESOLUTION OF THE NHA AND
THE DECISION OF THE OFFICE OF
THE PRESIDENT HAVE ATTAINED
FINALITY, AND IF SO, WHETHER
OR NOT THE PRINCIPLE OF
ADMINISTRATIVE RES
JUDICATA BARS THE COURT FROM
FURTHER DETERMINING WHO
BETWEEN THE PARTIES HAS
PREFERENTIAL RIGHTS FOR
AWARD OVER THE SUBJECT LOTS;
B. WHETHER OR NOT THE COURT
HAS JURISDICTION TO MAKE THE
AWARD ON THE SUBJECT LOTS;
AND
C. WHETHER OR NOT THE AWARD OF
THE SUBJECT LOTS BY THE NHA IS
ARBITRARY.
We rule for the respondents.
Res judicata is a concept applied in
review of lower court decisions in
accordance with the hierarchy of courts.
But jurisprudence has also recognized
the rule of administrative res judicata:
"the rule which forbids the reopening of a
matter once judicially determined by
competent authority applies as well to
the judicial and quasi-judicial facts of
public, executive or administrative
officers and boards acting within their
jurisdiction as to the judgments of courts
having general judicial powers . . . It has
been declared that whenever final
adjudication of persons invested with
power to decide on the property and
rights of the citizen is examinable by the
Supreme Court, upon a writ of error or a
certiorari, such final adjudication may be
pleaded as res judicata."[20] To be sure,
early jurisprudence were already mindful
that the doctrine of res judicata cannot
be said to apply exclusively to decisions
rendered by what are usually understood
as courts without unreasonably
circumscribing the scope thereof and that
the more equitable attitude is to allow
extension of the defense to decisions of
bodies upon whom judicial powers have
been conferred.
In Ipekdjian Merchandising Co., Inc.
v. Court of Tax Appeals,[21] the Court
held that the rule prescribing that
"administrative orders cannot be
enforced in the courts in the absence of
an express statutory provision for that
purpose" was relaxed in favor of quasi-
judicial agencies.
In fine, it should be remembered that
quasi-judicial powers will always be
subject to true judicial power–that which
is held by the courts. Quasi-judicial
power is defined as that power of
adjudication of an administrative agency
for the "formulation of a final
order."[22] This function applies to the
actions, discretion and similar acts of
public administrative officers or bodies
who are required to investigate facts, or
ascertain the existence of facts, hold
hearings, and draw conclusions from
them, as a basis for their official action
and to exercise discretion of a judicial
nature.[23] However, administrative
agencies are not considered courts, in
their strict sense. The doctrine of
separation of powers reposes the three
great powers into its three (3) branches–
the legislative, the executive, and the
judiciary. Each department is co-equal
and coordinate, and supreme in its own
sphere. Accordingly, the executive
department may not, by its own fiat,
impose the judgment of one of its
agencies, upon the judiciary. Indeed,
under the expanded jurisdiction of the
Supreme Court, it is empowered to
"determine whether or not there has
been grave abuse of discretion
amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the
Government."[24] Courts have an
expanded role under the 1987
Constitution in the resolution of societal
conflicts under the grave abuse
clause of Article VIII which includes that
duty to check whether the other
branches of government committed an
act that falls under the category of grave
abuse of discretion amounting to lack or
excess of jurisdiction.[25]
Next, petitioner cites Batas Pambansa
Blg. 129 or the Judiciary Reorganization
Act of 1980[26] where it is therein
provided that the Intermediate Appellate
Court (now, Court of Appeals) shall
exercise the "exclusive appellate
jurisdiction over all final judgments,
decisions, resolutions, orders or awards,
of the Regional Trial Courts and Quasi-
Judicial agencies, instrumentalities,
boards or commissions, except those
falling within the jurisdiction of the
Supreme Court in accordance with the
Constitution..."[27] and contends that the
Regional Trial Court has no jurisdiction to
rule over awards made by the NHA.
Well-within its jurisdiction, the Court of
Appeals, in its decision of August 28,
2003, already ruled that the issue of the
trial court's authority to hear and decide
the instant case has already been settled
in the decision of the Court of Appeals
dated June 26, 1989 (which has become
final and executory on August 20, 1989
as per entry of judgment dated October
10, 1989).[28] We find no reason to
disturb this ruling. Courts are duty-
bound to put an end to controversies.
The system of judicial review should not
be misused and abused to evade the
operation of a final and executory
judgment.[29] The appellate court's
decision becomes the law of the case
which must be adhered to by the parties
by reason of policy.[30]
Next, petitioner NHA contends that its
resolution was grounded on meritorious
grounds when it considered the
application for the purchase of lots.
Petitioner argues that it was the
daughter Francisca Herrera who filed her
application on the subject lot; that it
considered the respective application and
inquired whether she had all the
qualifications and none of the
disqualifications of a possible awardee. It
is the position of the petitioner that
private respondent possessed all the
qualifications and none of the
disqualifications for lot award and hence
the award was not done arbitrarily.
The petitioner further argues that
assuming that the "Sinumpaang
Salaysay" was a will, it could not bind
the NHA.[31] That, "insofar as [the] NHA
is concerned, it is an evidence that the
subject lots were indeed transferred by
Margarita Herrera, the original awardee,
to Francisca Herrera was then applying
to purchase the same before it."[32]
We are not impressed. When the
petitioner received the "Sinumpaang
Salaysay," it should have noted that the
effectivity of the said document
commences at the time of death of the
author of the instrument; in her
words "sakaling ako'y bawian na ng Dios
ng aking buhay..." Hence, in such period,
all the interests of the person should
cease to be hers and shall be in the
possession of her estate until they are
transferred to her heirs by virtue of
Article 774 of the Civil Code which
provides that:
Art. 774. Succession is a mode of
acquisition by virtue of which the
property, rights and obligations to
the extent of the value of the
inheritance, of a person are
transmitted through his death to
another or others either by his will
or by operation of law.[33]
By considering the document, petitioner
NHA should have noted that the original
applicant has already passed away.
Margarita Herrera passed away on
October 27, 1971.[34] The NHA issued its
resolution[35] on February 5, 1986. The
NHA gave due course to the application
made by Francisca Herrera without
considering that the initial applicant's
death would transfer all her property,
rights and obligations to the estate
including whatever interest she has or
may have had over the disputed
properties. To the extent of the interest
that the original owner had over the
property, the same should go to her
estate. Margarita Herrera had an interest
in the property and that interest should
go to her estate upon her demise so as
to be able to properly distribute them
later to her heirs–in accordance with a
will or by operation of law.
The death of Margarita Herrera does not
extinguish her interest over the property.
Margarita Herrera had an existing
Contract to Sell[36] with NHA as the seller.
Upon Margarita Herrera's demise, this
Contract to Sell was neither nullified nor
revoked. This Contract to Sell was an
obligation on both parties–Margarita
Herrera and NHA. Obligations are
transmissible.[37] Margarita Herrera's
obligation to pay became transmissible
at the time of her death either by will or
by operation of law.
If we sustain the position of the NHA that
this document is not a will, then the
interests of the decedent should transfer
by virtue of an operation of law and not
by virtue of a resolution by the NHA. For
as it stands, NHA cannot make another
contract to sell to other parties of a
property already initially paid for by the
decedent. Such would be an act contrary
to the law on succession and the law on
sales and obligations.[38]
When the original buyer died, the NHA
should have considered the estate of the
decedent as the next "person"[39] likely
to stand in to fulfill the obligation to pay
the rest of the purchase price. The
opposition of other heirs to the
repurchase by Francisca Herrera should
have put the NHA on guard as to the
award of the lots. Further, the Decision
in the said Civil Case No. B-1263
(questioning the Deed of Self-
Adjudication) which rendered the deed
therein null and void[40] should have
alerted the NHA that there are other
heirs to the interests and properties of
the decedent who may claim the
property after a testate or intestate
proceeding is concluded. The NHA
therefore acted arbitrarily in the award of
the lots.
We need not delve into the validity of the
will. The issue is for the probate court to
determine. We affirm the Court of
Appeals and the Regional Trial Court
which noted that it has an element of
testamentary disposition where (1) it
devolved and transferred property; (2)
the effect of which shall transpire upon
the death of the instrument maker.[41]
IN VIEW WHEREOF, the petition of the
National Housing Authority is DENIED.
The decision of the Court of Appeals in
CA-G.R. No. 68370 dated August 28,
2003, affirming the decision of the
Regional Trial Court of San Pedro,
Laguna in Civil Case No. B-2780 dated
March 9, 1998, is hereby AFFIRMED.
No cost.
SO ORDERED.

[ G.R. No. L-8437,
November 28, 1956 ]
ESTATE OP K. H. HBMADY,
DECEASED, VS. LUZON SURETY
CO., INC. CLAIMANT AND
APPELLANT.
DECISION
REYES, J.B.L., J.:
Appeal by Luzon Surety Co., Inc., from
an order of the Court of First Instance of
Rizal, presided by Judge Hermogenes
Caluag, dismissing its claim against the
Estate of K. H. Hemady (Special
roceeding No. Q-293) for failure to state
a cause of action.
The Luzon Surety Co. had filed a claim
against the Estate based on twenty
different indemnity agreements, or
counter bonds, each subscribed by a
distinct principal and by the deceased K.
H. Hemady, a surety solidary guarantor)
in all of them, in consideration of the
Luzon Surety Co.'s of having guaranteed,
the various principals in favor of different
creditors. The twenty counterbonds, or
indemnity agreements, all contained the
following stipulations:
"Premiums.—As consideration for this
suretyship, the undersigned jointly and
severally, agree to pay the COMPANY the
sum of
_________________(P_____________)
pesos, Philippines ' Currency, in advance
as premium there of for every
_______________ months or fractions
thereof, this ___________ or any
renewal or substitution thereof is in
effect.
Indemnity.—The undersigned, jointly and
severally, agree at all times to indemnify
the company and keep it indemnified and
hold and save it harmless from and
against any and all damages, losses,
coats, stamps, taxes, penalties, charges,
and expenses of whatsoever kind and
nature which the company shall or may,
at any time sustain or incur in
consequence of having become surety
upon this bond or any extension, renewal,
substitution or alteration thereof made at
the instance of the undersigned or any of
them or any order executed on behalf of
the undersigned or any of them; and to
pay, reimburse and make good to the
company, its successors and assigns, all
sums and amount of money which it or
its representatives shall pay or cause to
be paid, or become liable to pay, on
account of the undersigned or any of
them, of whatsoever kind and nature,
including 15% of the amount involved in
the litigation or other matters growing
out of or connected therewith for counsel
or attorney's fees,
but in no case less than P25. It
is hereby further agreed that in
case of extension or renewal of this
___________we equally
bind ourselves for the payment there
of under the same terms and
conditions as above mentioned without
the necessity of executing another
indemnity agreement for the purpose
and that we hereby equally waive our
right to be notified of any renewal or
extension of this____________ which
may be granted under this indemnity
agreement.
Interest on amount paid by the
Company.—Any and all sums of money
so paid by the company shall bear
interest at the rate of 12% per annum
which interest, if not paid, will be
accummulated and added to the capital
quarterly order to earn, the same
interests as the capital and the total sum
thereof, the capital and interest, shall be
paid to the Company as soon as the
Company shall have become liable
therefore, whether it shall have paid out
such sums of money or any part thereof
or not.
* * * *
* * * since they were not liabilities
Waiver.—It is hereby agreed upon by
and between the undersigned that any
question which may arise between them
by reason of this document and which
has to be submitted for decision to
Courts of Justice shall be brought before
the Court of competent jurisdiction in the
City of Manila, waiving for this purpose
any other venue. Our right to be notified
of the acceptance and approval of this
indemnity agreement is hereby likewise
waived.
* * * *
* * * in the absence of a showing that a loss
Our Liability Hereunder.—It shall not be
necessary for the Company to bring
suit .against the principal upon his
default, or to exhaust the property of the
principal, but the liability hereunder of
the undersigned indemnitor shall be
jointly and severally, a primary one, the
same as that of the principal, and shall
be exigible immediately upon the
occurrence of such default." (Rec. App.
pp. 98-102.)
The Luzon Surety Co., prayed for
allowance, as a contingent claim, of the
value of the twenty bonds it had
executed in consideration of the
counterbonds, and further asked for
judgment for the unpaid premiums and
documentary stamps affixed to the
bonds, with 12 per cent interest thereon
Before answer was filed, and upon
motion of the administratrix of Hemady's
estate, the lower court, by order of
September 23, 1953, dismissed the
claims of Luzon Surety Co., on two
grounds: (1) that the premiums due and
cost of documentary stamps were not
contemplated under the indemnity
agreements to be a part of the
undertaking of the guarantor (Hemady),
incurred after the execution of the
counter-bonds; and (2) that "whatever
losses may occur after Hemady's
death, .are not chargeable to his estate,
because upon his death he ceased to be
guarantor."
Taking up the latter point first, since it is
the one more far reaching in effects, the
reasoning of the court below ran as
follows:
"The administratrix further contends that
upon the death of Hemady, his liability
as a guarantor terminated, and therefore,
or damage was suffered, the claim
cannot be considered contingent. This
Court believes that there is merit in this
contention and finds support in Article
2046 of the new Civil Code. It should be
noted that a new requirement has been
added for a person to qualify as a
guarantor, that is: integrity. As correctly
pointed out by the Administratrix,
integrity is something purely personal
and is not transmissible. Upon the death
of Hemady, his integrity was not
transmitted to his estate or successors.
Whatever loss therefore, may occur after
Hemady's death, are not chargeable to
his estate because upon his death he
ceased to be a guarantor.
Another clear and strong indication that
the surety company has exclusively
relied on the personality, character,
honesty and integrity of the now
deceased K. H. Hemady, was the fact
that in the printed form of the indemnity
agreement there is a paragraph entitled
'Security by way of first mortgage, which
was expressly waived and renounced by
the security company. The security
company has not demanded from K. H.
Hemady to comply with this requirement
of giving security by way of firat
mortgage. In the supporting papers of
the claim presented by Luzon Surety
Company, no real property was
mentioned in the list of properties
mortgaged which appears at the back of
the indemnity agreement." (Rec. App.,
pp. 407—408).
We find this reasoning untenable. Under
the present Civil Code (Article 1311), as
well as under the Civil Code of 1889
(Article 1257), the rule is that:-
"Contracts take effect only as between
the parties, their assigns and
heirs, except in the case
where the rights and obligations
arising from the contract are not
transmissible by their nature, or by
stipulation or by provision of law."
While in our successional system the
responsibility of the heirs for the debts of
their decedent cannot exceed the value
of the inheritance they receive from him,
the principle remains intact that these
heirs succeed not only to the rights of
the deceased but also to his obligations.
Articles 774 and 776 of the New Civil
Code (and Articles 659 and 661 of the
preceding one) expressely so provide,
thereby confirming Article 1311 already
qouted.
"Art. 774.—Succession is a mode of
acquisition by virtue of which the
property, rights and obligations to the
extent of the value of the inheritance, of
a person are transmitted through his
death to another or others either by his
will or by operation of law."
"Art. 776,—The inheritance includes all
the property, rights and obligations of a
person which are not extinguished by his
death."
In Mojica vs. Fernandez, 9 Phil. 403, this
Supreme Court ruled:
"Under the Civil Code the heirs, by virtue
of the rights of succession are
subrogated to all the rights and
obligations of the deceased (Article 661)
and can not be regarded as third parties
with respect to a contract to which the
deceased was a party, touching the
estate of the deceased (Barrios vs. Dolor,
2 Phil. 44).
* * * *
* * *
"The principle on which these decisions
rest is not affected by the provisions of
the new Code of Civil Procedure, and, in
accordance with that principle, the heirs
of a deceased person cannot be held to
be "third persons" in relation to any
contracts touching the real estate of their
decedent which comes in to their hands
by right of inheritance; they take such
property subject to all the obligations
resting thereon in the hands of him from
whom they derive their rights."
(See also Galasinao vs. Austria, 51 Off.
Gaz. (No. 6) p. 2874 and de Guzman vs.
Salak, 91 Phil., 265).
The binding effect of contracts upon the
heirs of the deceased party is not altered
by the provision in our Rules of Court
that money debts of a deceased must be
liquidated and paid from his estate
before the residue is distributed among
said heirs (Rule 89). The reason is that
whatever payment is thus made from the
estate is ultimately a payment by the
heirs and distributees, since the amount
of the paid claim in fact diminishes or
reduces the shares that the heirs would
have been entitled to receive.
Under our law, therefore, the general
rule is that a party's contractual rights
and obligations are transmissible to the
successors. The rule is a consequence of
the progressive "depersonalization" of
patrimonial rights and duties that, as
observed by Victorio Polacco, has
characterized the history of these
institutions? From the Roman concept of
a relation from person to person, the
obligation has evolved into a relation
from patrimony to patrimony, with the
persons occupying only a representative
position;, barring those rare cases where
the obligation is strictly personal, i.e., is
contracted intuitu personae, in
consideration of its performance by a
specific person and by no other. The
transition is marked by the
disappearance of the imprisonment for
debt.
Of the three exceptions fixed by Article
1311, the nature of the obligation of the
surety or guarantor does not warrant the
conclusion that his peculiar individual
qualities are contemplated as a principal
inducement for the contract. What did
the creditor Luzon Surety Co. expect of K.
H. Hemady when it accepted the latter as
surety in the counterbonds? Nothing but
the reimbursement of the moneys that
the Luzon Surety Co. might have to
disburse on account of the obligations of
the principal debtors. This
reimbursement is a payment of a sum of
money, resulting from an obligation to
give; and to the Luzon Surety Co., it was
indifferent that the reimbursement
should be made by Hemady himself or by
some one else in his behalf, so long as
the money was paid to it.
The second exception of Article 1311, p.
1, is intransmissibility by stipulation of
the parties. Being exceptional and
contrary to the general rule, this
intransmissibility should not be easily
implied, but must be expressly
established, or at the very least, clearly
inferable from the provisions of the
contract itself, and the text of the
agreements sued upon nowhere indicate
that they are non-transferable.
"(b) Intransmisibilidad por pacto.—
Lo general es la
transmisibilidad de darechos y obligaci
ones; le excepcion, la intransmisibilid
ad. Mientras nada se diga en contrario
impera el principio de la
transmision, como
elemento natural a toda relacion
juridical salvo las personalisimas. Asi,
para la no transmision,
es menester el pacto expreso, porque
si no, lo convenido ehtre partes
trasciende a sus herederos.
Siendo estos los continuadores de la
personalidad del causante, sobre ellos
recaen los efectos de los vinculos
juridicos creados por sus antecesores, y
para evitarld, si asi se quiere, es
indispensable convention terminante en
tal sentido.
Por su esencia, el derecho y la
obligacion tienden a ir mas
alia de las personas que les dieron
vida, y a ejercer presion sobre
los sucesores de esa persona; cuando
no se quiera esto, se impone una
eetipulacion limitativa expresamente de
la transmisibilidad o de cuyos
tirminos claramente se deduzca la
concresion a del concreto a las mismas
personas que lo otorgon." (Scaevola,
Oodigo Civil, Tomo XX, p. 541-
542) (Italics supplied.)
Because under the law (Article 1311), a
person who enters into a contract is
deemed to have contracted for himself
and hid heirs and assigns, it is
unnecessary for him to expressly
stipulate to that effect; hence, his failure
to do so, is no sign that he intended his
bargain to terminate upon his death.
Similarly, that the Luzon Surety Co,. did
not require bondsman Hemady to
execute a mortgage indicates nothing
more than the company's faith and
confidence in the financial stability of the
surety, but not that his obligation was
strictly personal.
The third exception to the transmissibility
of obligations under Article 1311 exists
when they are "not transmissible by
operation of law". The provision makes
reference to those cases where the law
expresses that the rights or obligations
are extinguished by death, as is the case
in legal support (Article 300), parental
authority (Article 327), usufruct (Article
603), contracts for a piece of work
(Article 1726), partnership (Article 1830
and agency (Article 1919). By contract,
the articles of the Civil Code that
regulate guaranty or suretyship (Articles
2047 to 2084) contain no provision that
the guaranty is extinguished upon the
death of the guarantor or the surety.
The lower court sought to infer such a
limitation from Art. 2056, to the effect
that "one who is obliged to furnish a
guarantor must present a person who
possesses integrity, capacity to bind
himself, and sufficient property to
answer for the obligation, which he
guarantees. It will be noted, however,
that the law requires these qualities to
be present only at the time of the
perfection of the contract of guaranty. It
is self-evident that once the contract has
become perfected and binding, the
supervening incapacity of the guarantor
would not operate to exonerate him of
the eventual liability he has contracted;
and if that be true of his capacity to bind
himself, it should also be true of
his integrity, which is a quality
mentioned in the article alongside the
capacity.
The foregoing concept is confirmed by
the next Article 2057, that runs as
follows:
"ART. 2057.—If the guarantor should be
convicted in first instance of a crime
involving dishonesty or should become
insolvent, the creditor may demand
another who has all the qualifications
required in the preceding article. The
case is excepted where the creditor has
required and stipulated that a specified
person should be guarantor."
From this article it should be immediately
apparent that the supervening
dishonesty of the guarantor (that is to
say, the disappearance of his integrity
after he has become bound)
does not terminate the contract but
merely entitles the creditor to demand a
replacement of the guarantor. But the
step remains optional in the creditor: it is
his right, not his duty; he may waive it if
he chooses, and hold the guarantor to
his bargain. Hence Article. 2057 of the
present Civil Code is incompatible with
the trial court's stand that the
requirement of integrity in the guarantor
or surety makes the latter's undertaking
strictly personal, so linked to his
individual ity that the guaranty
automatically terminates upon his death.
The contracts of suretyship entered into
by K. H. Hemady in favor of Luzon
Surety Co. not being rendered
intransmissible due to the nature of the
undertaking, nor by the stipulations of
the contracts themselves, nor by
provision of law, his eventual liability
thereunder necessarily passed upon his
death to his heirs. The conT tracts,
therefore, give rise to contingent claims
provable against his estate under section
5, Rule 87 (2 Moran, 1952 ed., p. 437;
Gaskell & Co. vs. Tan Sit, 43 Phil. 810, does not even enjoy the benefit of
814). exhaustion of the assets of the principal
debtor.
"The most common example of the
continent claim is that which arises when The foregoing ruling is of course without
a person is bound as surety or guarantor prejudice to the remedies of the
for a principal who is insolvent or dead. administratrix against the principal
Under the ordinary contract of suretyship debtors under Articles 2071 and 2067 of
the surety has no claim whatever against the New Civil Code.
his principal until he himself pays
something by way of satisfaction upon Our conclusion is that the solidary
the obligation which is secured. When he guarantor's liability is not extinguished
does this, there instantly arises in favor by his death, and that in such event, the
of the surety the right to compel the Luzon Surety Co., had the right to file
principal to exonerate the surety. But against the estate a contingent claim for
until the surety has contributed reimbursement. It becomes unnecessary
something to the payment of the debt, . now to discuss the estate's liability for
or has performed the secured obligation premiums and stamp taxes, because
in whole or in part, he has no right of irrespective of the solution to this
action against anybody—no claim that question, the Luzon Surety's claim did
could be reduced to judgment. (May vs. state a cause of action, and its dismissal
Vann, 15 Pla., 553; Gibson vs. Mithell, was erroneous.
16 Pla., 519; Maxey vs. Carter, 10 Yarg.
[Tenn.J, 531 Reeves vs. Pulliam, 7 Baxt. Wherefore, the order appealed from is
[Tenn.], 119; Ernst vs. Nou, 63 Wis., reversed, and the records are ordered
134.)" remanded to the court of origin, with
instructions to proceed in accordance
For with law. Costs against the
defendant administratrix it is averred Administratrix-Appellee. So ordered.
that the above doctrine refers to a case
where the surety files claims against the
estate of the principal debtor; and it is
urged that .the rule does not apply to the
case before us, where the late Hemady
was a surety, not principal debtor. The
argument evinces a superficial view of
the relations between parties. If under
the Gaskell ruling, the Luzon Surety Co.,
as guarantor, could file a contingent
claim against the estate of the principal
debtors if the latter should die, there is
absolutely no reason why it could not file
such a claim against the estate of
Hemady, since Hemady is a solidary co-
debtor of his principals. What the Luzon
Surety Co. may claim from the estate of
a principal debtor it may equally claim
from the estate of Hemady, since, in
view of the existing solidarity, the latter

[ G.R. No. L-24093,
November 18, 1967 ]
BUENAVENTURA BELAMALA,
PETITIONER-APPELLEE, VS.
MARCELINO POLINAR,
ADMINISTRATOR OPPOSITOR-
APPELLANT.
DECISION
REYES, J.B.L., J.:
Appeal from judgment of the Court
of First Instance of Bohol (Sp. Proc. No.
369) allowing a money claim
of appellee Belamala against the estate
of the deceased Mauricio Polinar, for
damages caused to the
claimant. Originally taken to the Court
of Appeals, the case was certified to this
Court as involving only questions of law.
Issue in the case is whether
the civil liability of an accused of physical
injuries who dies before final judgment,
is extinguished by his demise, to the
extent of barring any
claim therefor against his estate.
There is no dispute as to the facts, which
were stipulated, in the court of origin, to
be as follows (Rec. of Appeal, pp. 41-
43):
"STIPULATED AGREEMENT OF FACTS
xxx xxx
xxx
"1. That the claimant
Buenaventura Belamala is the same
offended party in Criminal Case No. 1922
filed before the COURT OF FIRST
INSTANCE OF BOHOL, against the same
Mauricio Polinar above mentioned and
against other accused, for Frustrated
Murder;
“2. That the
administrator Marcelino Polinar is one of
the legitimate children of the above
mentioned Mauricio Polinar now
deceased;
“3. That on May 24, 1954, the complaint
for Frustrated Murder was filed in the
Justice of the Peace
of Clarin, Bohol against said
Mauricio Polinar, et al., and when said
case was remanded to the Court of First
Instance of Bohol, the Information on
said Criminal Case No. 1922 was filed on
March 12, 1955;
“4. That on May 28, 1956, the COURT OF
FIRST INSTANCE OF BOHOL rendered a
decision thereof, convicting the said
Mauricio Polinar of the crime of serious
physical injuries and sentenced him to
pay to the offended party
Buenaventura Belamala, now claimant
herein, the amount of P990.00, plus the
amount of P35.80 as indemnity, the
amount of P1,000.00 as moral damages;
“5. That on June 18, 1956, the accused
(the late Mauricio Polinar) appealed to
the Court of Appeals from the decision of
the Court of First Instance of Bohol;
“6. That on July 27, 1956, while the
appeal of said Mauricio Polinar was
pending before the Court of Appeals, he
died; and that there was no Notice or
Notification of his death has ever been
filed in the said Court of Appeals;
“7. That the decision of the Court of
Appeals in said Criminal Case No. 1922,
has affirmed the decision of the Court of
First Instance of Bohol, in toto, and said
decision of the Court of Appeals was
promulgated on March 27, 1958; but
said Mauricio Polinar has already died
on July 27, 1956;
"8. That the late Mauricio Poliner is
survived by his
wife, Balbina Bongato and his children,
namely:
1. Narcisa Polinar, Davao
2. Geronimo Polinar, Pagadian
3. Mariano Polinar, Clarin, Bohol
4. Ireneo Polinar, Clarin, Bohol.
5. Marcelino Polinar, Clarin, Bohol
6. Mauro Polinar, Clarin, Bohol
7. Demetrio Polinar, Clarin, Bohol
"9. That the parties have reserved to
present in Court evidence on facts not
agreed to herein by the parties."
It is to be observed that the reservation
of additional evidence was waived by the
parties at the trial (see Decision of trial
court, Rec. App. p. 54).
The Court a quo overruling the
contention of the Administrator-appellant
that the death of the accused prior to
final judgment extinguished all criminal
and civil liabilities resulting from the
offense, in view of Article 89, paragraph
1 of the Revised Penal Code,
admitted the claim against the estate in
the amount of P2,025.80 with legal
interest from the date claim was filed (30
July 1959) until paid. No payment was
ordered pending final determination of
the sum total of claims admitted against
the estate.
Not satisfied with the ruling, the
Administrator has appealed, insisting on
his theory in the Court below.
We see no merit in the plea that the civil
liability has been extinguished, in view of
the provisions of the Civil Code of the
Philippines of 1950 (Rep. Act No. 886)
that became operative eighteen years
after the Revised Penal Code. As pointed
out by the Court below, Article 88 of the
Civil Code establishes a civil action for
damages on account of physical injuries,
entirely separate and distinct from the
criminal action.
"ART. 33. In case of defamation, fraud,
and physical injuries, a civil action for
damages, entirely separate and distinct
from the criminal action, may be brought
by the injured party. Such civil action
shall proceed independently of the
criminal prosecution, and shall require
only a preponderance of evidence."
Assuming that for lack of express
reservation, Belamala's civil action for
damages was to be considered instituted
together with the criminal action, still,
since both proceedings were terminated
without final adjudication, the civil action
of the offended party under Article 33
may yet be enforced separately. Such
claim in no way contradicts Article 108,
of the Penal Code, that imposes
the obligation to indemnify upon the
deceased offender's heirs,
because the latter acquire their
decedent's obligations only to the extent
of the value of the inheritance (Civil Code,
Art. 774). Hence, the obligation of the
offender's heirs under Article 108
ultimately becomes an obligation of the
offender's estate.
The appellant, however, is correct in the
contention that the claim should have
been prosecuted by separate action
against the administrator, as permitted
by sections 1 and 2 of Revised Rule 87,
since the claim is patently one "to
recover damages for
an injury to person or property (Rule 87,
sec. 1). Belamala's action can not be
enforced by filing a claim against the
estate under Rule 86, because section 5
of that rule explicitly limits the claims to
those for funeral expenses, expenses for
last sickness, judgments for money and
"claims against the decedent, arising
from contract, express or implied;" and
this last category (the other three being
inapposite) includes only "all purely
personal obligations other than those
which have their source in delict or tort"
(Leung Ben vs. OBrien, 38 Phil. 182,
189-194) and Belamala's damages
manifestly have a tortious origin. To this
effect was our ruling
in Aguas v. Llemos, L-18107, Aug. 30,
1962.

Furthermore, it does not appear that the

award of the trial Court was based on
evidence submitted to it; apparently it
relied merely on the findings in the
criminal case, as embodied in decisions
that never became final because the
accused died during the pendency of said
case.

WHEREFORE, the decision under appeal

is hereby reversed and set aside, but
without prejudice to the action
of appellee Belamala against the
Administrator of the Estate of
Mauricio Polinar. No costs.

SO ORDERED.
c. restrictions – Section 5, Rule 86 of the Rules of
Court
sale or dealings of future inheritance
[ G.R. No. 44837,
November 23, 1938 ]
SOCCORO LEDESMA AND ANA
QUITCO LEDESMA, PLAINTIFFS
AND APPELLEES, VS. CONCHITA
MCLACHLIN ET AL.,
DEFENDANTS AND APPELLANTS.
DECISION
VILLA-REAL, J.:
This case is before us by virtue of an
appeal taken by the defendants Conchita
McLachlin, Lorenzo Quitco, jr., Sabina
Quitco, Rafael Quitco and Marcela Quitco,
from the decision of the Court of First
Instance of Occidental Negros, the
dispositive part of which reads:
"For the foregoing considerations, the
court renders judgment in this case
declaring Ana Quitco Ledesma an
acknowledged natural daughter of the
deceased Lorenzo M. Quitco, for legal
purposes, but absolving the defendants
of to the prayer in the first cause of
action that the said Ana Quitco Ledesma
be declared entitled to share in the
properties left by the deceased Eusebio
Quitco.
"As to the second cause of action, the
said defendants are ordered to pay to
the plaintiff Socorro Ledesma, jointly and
severally, only the sum of one thousand
five hundred pesos (P1,500), with legal
interest thereon from the filing of this
complaint until fully paid. No
pronouncement is made as to the costs.
So ordered."
In support of their appeal, the appellants
assign the following errors allegedly
committed by the trial court in its
aforesaid decision:
"1. That the trial court erred in holding
that the action for the recovery of the
sum of P1,500, representing the last
installment of the note Exhibit C has not
yet prescribed.
"2. That the trial court erred in holding
that the property inherited by the
defendants from their deceased
grandfather by the right of
representation is subject to the debts
and obligations of their deceased father
who died without any property
whatsoever.
"3. That the trial court erred in
condemning the defendants to pay
jointly and severally the plaintiff Socorro
Ledesma the sum of P1,500."
The only facts to be considered in the
determination of the legal questions
raised in this appeal are those set out in
the appealed decision, which have been
established at the trial, namely:
"In the year 1916, the plaintiff Socorro
Ledesma lived maritally with Lorenzo M.
Quitco, while the latter was still single, of
which relation, lasting until the year
1921, was born a daughter who is the
other plaintiff Ana Quitco Ledesma. In
1921, it seems that the relation between
Socorro Ledesma and Lorenzo M. Quitco
came to an end, but the latter executed
a deed (Exhibit A), acknowledging the
plaintiff Ana Quitco Ledesma as his
natural daughter, and on January 21,
1922, he issued in favor of the plaintiff
Socorro Ledesma a promissory note
(Exhibit C), of the following tenor:
" 'P2,000. For value received I promise
to pay Miss Socorro Ledesma the sum of
two thousand pesos (P2,000) Philippine
currency under the following terms: Two
hundred and fifty pesos (P250) to be
paid on the first day of March, 1922:
another two hundred and fifty pesos
(P250) to be paid on the first day of
November, 1922; the remaining one
thousand and five hundred (P1,500) to
be paid two years from the date of the
execution of this note. San Enrique, Occ.
Negros, P. I., Jan. 21, 1922.'
"Subsequently, Lorenzo M. Quitco
married the defendant Conchita
McLachlin, with whom he had four
children, who are the other defendants.
On March 9, 1930, Lorenzo M. Quitco
died (Exhibit 5), and, still later, that is,
on December 15,1932, his father Eusebio
Quitco also died, and as the latter left
real and personal properties upon his
death, administration proceedings of said
properties were instituted in this court,
the said case being known as the
'Intestate of the deceased Eusebio
Quitco,' civil case No. 6153 of this court.
"Upon the institution of the intestate of
the deceased Eusebio Quitco and the
appointment of the committee on claims
and appraisal, the plaintiff Socorro
Ledesma, on August 26, 1935, filed
before said committee the aforequoted
promissory note for payment, and the
commissioners, upon receipt of said
promissory note, instead of passing upon
it, elevated the same to this court en
consulta (Exhibit F), and as the
Honorable Jose Lopez Vito, presiding
over the First Branch, returned
said consulta and refrained from giving
his opinion thereon (Exhibit C), the
aforesaid commissioners on claims and
appraisal, alleging lack of jurisdiction to
pass upon the claim, denied the same
(Exhibit H).
"On November 14, 1933 (Exhibit I), the
court issued an order of declaration of
heirs in the intestate of the deceased
Eusebio Quitco, and as Ana Quitco
Ledesma was not included among the
declared heirs, Socorro Ledesma, as
mother of Ana Quitco Ledesma, asked for
the reconsideration of said order, a
petition which the court denied. From the
order denying the said petition no appeal
was taken, and in lieu thereof there was
filed the complaint which gives rise to
this case."
The first question to be decided in this
appeal, raised in the first assignment of
alleged error, is whether or not the
action to recover the sum of P1,500,
representing the last installment for the
payment of the promissory note Exhibit
C, has prescribed.
According to the promissory note Exhibit
C, executed by the deceased Lorenzo M.
Quitco, on January 21, 1922, the last
installment of P1,500 should be paid two
years from the date of the execution of
said promissory note, that is, on January
21, 1924. The complaint in the present
case was filed on June 26, 1934, that is,
more than ten years after the expiration
of the said period. The fact that the
plaintiff Socorro Ledesma filed her claim,
on August 26, 1933, with the committee
on claims and appraisal appointed in the
intestate of Eusebio Quitco, does not
suspend the running of the prescriptive
period of the judicial action for the
recovery of said debt, because the claim
for the unpaid balance of the amount of
the promissory note should not have
been presented in the intestate of
Eusebio Quitco, the said deceased not
being the one who executed the same,
but in the intestate of Lorenzo M. Quitco,
which should have been instituted by the
said Socorro Ledesma as provided in
section 642 of the Code of Civil
Procedure, authorizing a creditor to
institute said case through the For the foregoing considerations, we are
appointment of an administrator for the of the opinion and so hold: (1) That the
purpose of collecting his credit. More filing of a claim before the committee on
than ten years having thus elapsed from claims and appraisal, appointed in the
the expiration of the period for the intestate of the father, for a monetary
payment of said debt of P1,500, the obligation contracted by a son who died
action for its recovery has prescribed before him, does not suspend the
under section 43, No. 1, of the Code of prescriptive period of the judicial action
Civil Procedure. for the recovery of said indebtedness;
(2; that the claim for the payment of an
The first assignment of alleged error is, indebtedness contracted by a deceased
therefore, well-founded. person cannot be filed for its collection
before the committee on claims and
As to the second assignment of alleged appraisal, appointed in the intestate of
error, consisting in that the trial court his father, and the properties inherited
erred in holding that the properties from the latter by the children of said
inherited by the defendants from their deceased do not answer for the payment
deceased grandfather by representation of the indebtedness contracted during
are subject to the payment of debts and the lifetime of said person.
obligations of their deceased father, who
died without leaving any property, while Wherefore, the appealed judgment is
it is true that under the provisions of reversed, and the defendants are
articles 924 to 927 of the Civil Code, a absolved from the complaint, with the
child represents his father or mother who costs to the appellees. So ordered.
died before him in the properties of his
grandfather or grandmother, this right of
representation does not make the said
child answerable for the obligations
contracted by his deceased father or
mother, because, as may be seen from
the provisions of the Code of Civil
Procedure referring to partition of
inheritances, the inheritance is received
with the benefit of inventory, that is to
say, the heirs only answer with the
properties received from their
predecessor. The herein defendants, as
heirs of Eusebio Quitco, in representation
of their father Lorenzo M. Quitco, are not
bound to pay the indebtedness of their
said father from whom they did not
inherit anything.

The second assignment of alleged error

is also well-founded.

Being a mere sequel of the first two

assignments of alleged errors, the third
assignment of error is also well-founded.