G.R. No.

72306 October 6, 1988

DAVID P. FORNILDA, JUAN P. FORNILDA, EMILIA P. FORNILDA OLILI, LEOCADIA

P. FORNILDA LABAYEN and ANGELA P. FORNILDA GUTIERREZ, petitioners,
vs.
THE BRANCH 164, REGIONAL TRIAL COURT IVTH JUDICIAL REGION, PASIG,
JOAQUIN C. ANTONIO Deputy Sheriff, RTC, 4JR Tanay, Rizal and ATTY. SERGIO I.
AMONOY respondents.

Irene C. Ishiwata for petitioner A. Gutierrez.

Sergio L Amonoy for and in his own behalf.

MELENCIO-HERRERA, J.:

The Petition entitled "Petisiyung Makapagpasuri Taglay ang Pagpapapigil ng Utos", translated as one for certiorari with
Preliminary Injunction, was filed on 27 September 1985 by three (3) petitioners, namely David P. Fornilda, Emilia P. Fornilda-
Olili and Angela P. Fornilda-Gutierrez. They seek the reversal of the Order of respondent Trial Court, dated 25 July 1985,
granting a Writ of Possession, as well as its Orders, dated 25 April 1986 and 16 May 1986 (p. 241, Rollo), directing and
authorizing respondent Sheriff to demolish the houses of petitioners Angela and Leocadia Fornilda (who is listed as a
petitioner but who did not sign the Petition). Neither is Juan P. Fornilda a signatory.

The facts disclose that the deceased, Julio M. Catolos formerly owned six (6) parcels of
land located in Tanay, Rizal, which are the controverted properties in the present
litigation. His estate was the subject of settlement in Special Proceedings No. 3103 of the
then Court of First Instance of Rizal, at Pasig, Branch 1. Francesca Catolos Agnes
Catolos Alfonso I. ForniIda and Asuncion M. Pasamba were some of the legal heirs and
were represented in the case by Atty. Sergio Amonoy (hereinafter referred to as
Respondent Amonoy). A Project of Partition was filed in the Intestate Court whereby the
Controverted Parcels were adjudicated to Alfonso I. Fornilda and Asuncion M. Pasamba.

On 12 January 1965, the Court approved the Project of Partition. It was not until 6 August
1969, however, that the estate was declared closed and terminated after estate and
inheritance taxes had been paid, the claims against the estate settled and all properties
adjudicated.

Eight (8) days thereafter, or on 20 January 1965, Alfonso 1. Fornilda and Asuncion M.
Pasamba executed a Contract of Mortgage wherein they mortgaged the Controverted
Parcels to Respondent Amonoy as security for the payment of his attorney's fees for
services rendered in the aforementioned intestate proceedings, in the amount of
P27,600.00 (Annex "A", Comment).

Asuncion M. Pasamba died on 24 February 1969 while Alfonso 1. Fornilda passed away
on 2 July 1969. Petitioners are some of the heirs of Alfonso I. Fornilda.

Since the mortgage indebtedness was not paid, on 21 January 1970, Respondent
Amonoy instituted foreclosure proceedings before the Court of First Instance of Rizal, at
Pasig, Branch VIII entitled "Sergio I. Amonoy vs. Heirs of Asuncion M. Pasamba and
Heirs of Alfonso 1. Fornilda" [Civil Case No. 12726] (Annex "B", Ibid.). Petitioners, as
defendants therein, alleged that the amount agreed upon as attorney's fees was only
Pll,695.92 and that the sum of P27,600.00 was unconscionable and unreasonable.
Appearing as signatory counsel for Respondent Amonoy was Atty. Jose S. Balajadia.

On 28 September 1972, the Trial Court   rendered judgement in the Foreclosure Case
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ordering the Pasamba and Fornilda heirs to pay Respondent Amonoy, within ninety
(90).days from receipt of the decision, the sums of P27,600.00 representing the
attorney's fees secured by the mortgage; Pl l,880.00 as the value of the harvest from two
(2) parcels of land; and 25% of the total of the two amounts, or P9,645.00, as attorney's
fees, failing which the Controverted Parcels would be sold at public auction (Annex
"C", Ibid.).

On 6 February 1973, the Controverted Parcels were foreclosed and on 23 March 1973,
an auction sale was held with Respondent Amonoy as the sole bidder for P23,760.00
(Annex "D", Ibid.). Said sale was confirmed by the Trial Court on 2 May 1973 (Annex
"E", Ibid.). To satisfy the deficiency, another execution sale was conducted with
Respondent Amonoy as the sole bidder for P12,137.50. On the basis of an Affidavit of
Consolidation of Ownership by Respondent Amonoy, the corresponding tax declarations
covering the Controverted Parcels were consolidated in his name.

On 19 December 1973, or a year after the judgment in the Foreclosure Case, an action
for Annulment of Judgment entitled "Maria Penano et al. vs. Sergio Amonoy, et al." (Civil
Case No. 18731) was filed before the then Court of First Instance of Rizal, at Pasig the
Annulment Case (Annex "F", Ibid.) Petitioners were also included as plaintiffs. Appearing
for the plaintiffs in that case was Atty. Jose F. Tiburcio. Squarely put in issue were the
propriety of the mortgage, the validity of the judgment in the Foreclosure Case, and the
tenability of the acquisitions by Respondent Amonoy at the Sheriffs sale. Of particular
relevance to the instant Petition is the contention that the mortgage and the Sheriffs sales
were null and void as contrary to the positive statutory injunction in Article 1491 (5) of the
Civil Code, which prohibits attorneys from purchasing, even at a public or judicial auction,
properties and rights in litigation, and that the Trial Court, in the Foreclosure Case, had
never acquired jurisdiction over the subject matter of the action, i.e., the Controverted
Parcels.

On 7 November 1977, the Trial Court   dismissed the Annulment Case holding that the
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particular disqualification in Article 1491 of the Civil Code is not of general application nor
of universal effect but must be reconciled with the rule that permits judgment creditors to
be bidders at sheriffs sales, so that Respondent Amonoy was "clearly not prohibited from
bidding his judgment and his acquisitions therefore are sanctioned by law" (Annex
"G", Ibid.).

On 22 July 1981, the Court of Appeals (in CA-G.R. No. 63214-R) (the Appealed
Case)   affirmed the aforesaid judgment predicated on three principal grounds: (1) that no
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legal impediment exists to bar an heir from encumbering his share of the estate after a
project of partition has been approved, that act being a valid exercise of his right of
ownership; (2) res judicata, since petitioners never questioned the capacity of
Respondent Amonoy to acquire the property in the Foreclosure Case; and (3) the
complaint in the Annulment Case did not allege extrinsic fraud nor collusion in obtaining
the judgment so that the action must fail.

Upon remand of the Foreclusure Case to respondent Regional Trial Court, Branch 164,
at Pasig, Respondent Sheriff, on 26 August 1985, notified petitioners to vacate the
premises (p. 17, Rollo), subject of the Writ of Possession issued on 25 July 1985 (p. 18,
Rollo).

On 27 September 1985, petitioners came to this Court in a pleading entitled "Petisiyung

Makapagpasuri Taglay ang Pagpapapigil ng Utos". On 11 November 1985, we dismissed
the petition for non-payment of docket and other fees. However, upon payment thereof,
the Order of dismissal was set aside and respondents were directed to submit their
Comment. In his Comment, Respondent Amonoy denies that he had acquired the
Controverted Parcels through immoral and illegal means contending that "the question of
attorney's fees, the mortgage to secure the same, the sale of the mortgaged properties at
public auction, which was confirmed by the Court, and ultimately, the ownership and
possession over them, have all been judicially adjudicated (p. 146, Rollo)

We gave due course to the petition and required the filing of the parties' respective
memoranda.

Meanwhile, on motion of Respondent Amonoy, dated 24 April 1986, respondent Trial

Court, in the Foreclosure Case, issued Orders dated 25 April and 16 May 1986
authorizing the demolition of the houses and other structures of petitioners Leocadia and
Angela Fornilda (p. 241, Rollo).

On 1 June 1986 the house of Angela Fornilda was totally demolished while that of
Leocadia was spared due to the latter's assurance that she would seek postponement.
On 1 June 1986, in a pleading entitled "Mahigpit na Musiyung Para Papanagutin
Kaugnay ng Paglalapastangan", followed by a Musiyung Makahingi ng Utos sa
Pagpapapigil ng Pagpapagiba at Papanagutin sa Paglalapastangan' petitioners applied
for a Restraining Order, which we granted on 2 June 1986, enjoining respondents and
the Sheriff of Rizal from demolishing petitioners' houses (p. 221, Rollo). In a pleading
entitled 'Mahigpit na Musiyung para Papanagutin Kaugnay ng Paglapastangan' and
'Masasamang Gawain (Mal-Practices)' and 'Paninindigan (Memorandum)' both filed on
16 June 1988, petitioners likewise charged Respondent Amonoy with malpractice and
prayed for his disbarment (pp. 224; 226, Rollo).

In Respondent Amonoy's "Comment and Manifestations" filed on 30 June 1986, he

indicated that the Restraining Order received by the Deputy Sheriff of Rizal only on 6
June 1986 had already become moot and academic as Angela Fornilda's house had
been demolished on 2 June 1986 while Leocadia offered to buy the small area of the
land where her house is built and he had relented.

In the interim, Respondent Amonoy was appointed as Assistant Provincial Fiscal of Rizal,
and subsequently as a Regional Trial Court Judge in Pasay City.

The threshold issue is whether or not the mortgage constituted on the Controverted
Parcels in favor of Respondent Amonoy comes within the scope of the prohibition in
Article 1491 of the Civil Code.

The pertinent portions of the said Articles read:

Art. 1491. The following persons cannot acquire by purchase even at a public or judicial

or auction, either in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, ... the property and rights in litigation or levied
upon on execution before the court within whose junction or territory they exercise their
respective functions; this prohibition includes the act of acquitting by assignment and
shall apply to lawyers with respect to the property and rights which may be the object of
any litigation in which they may take part by virtue of their profession. (Emphasis
supplied)

Under the aforequoted provision, a lawyer is prohibited from acquiring either by purchase
or assignment the property or rights involved which are the object of the litigation in which
they intervene by virtue of their profession ( Padilla Vol. H Civil Law, 1974 Ed., p. 230
citing Hernandez vs. Villanueva, 40 Phil. 773 and Rubias vs. Batiller 51 SCRA 130). The
prohibition on purchase is all embracing to include not only sales to private individuals
but also public or judicial sales (ibid., p. 221).

The rationale advanced for the prohibition is that public policy disallows the transactions
in view of the fiduciary relationship involved i.e., the relation of trust and confidence and
the peculiar control exercised by these persons (Paras, Civil Code, Vol. V, 1973., p. 70).

In the instant case, it is undisputed that the Controverted Parcels were part of the estate
of the late Julio M. Catolos subject of intestate estate proceedings, wherein Respondent
Amonoy acted as counsel for some of the heirs from 1959 until 1968 by his own
admission (Comment, p. 145, Rollo); that these properties were adjudicated to Alfonso
Fornilda and Asuncion M. Pasamba in the Project of Partition approved by the Court on
12 January 1965; that on 20 January 1965, or only eight (8) days thereafter, and while he
was still intervening in the case as counsel, these properties were mortgaged by
petitioners' predecessor-in-interest to Respondent Amonoy to secure payment of the
latter's attorney's fees in the amount of P27,600.00; that since the mortgage
indebtedness was not paid, Respondent Amonoy instituted an action for judicial
foreclosure of mortgage on 21 January 1970; that the mortgage was subsequently
ordered foreclosed and auction sale followed where Respondent Amonoy was the sole
bidder for P23,600.00; and that being short of the mortgage indebtedness, he applied for
and further obtained a deficiency judgment.

Telling, therefore, is the fact that the transaction involved falls squarely within the
prohibition against any acquisition by a lawyer of properties belonging to parties they
represent which are still in suit. For, while the Project of Partition was approved on 12
January 1965, it was not until 6 August 1969 that the estate was declared closed and
terminated (Record on Appeal, Civil Case No. 3103, p. 44). At the time the mortgage was
executed, therefore, the relationship of lawyer and client still existed, the very relation of
trust and confidence sought to be protected by the prohibition, when a lawyer occupies a
vantage position to press upon or dictate terms to an harassed client. What is more, the
mortgage was executed only eight (8) days after approval of the Project of Partition
thereby evincing a clear intention on Respondent Amonoy's part to protect his own
interests and ride roughshod over that of his clients. From the time of the execution of the
mortgage in his favor, Respondent Amonoy had already asserted a title adverse to his
clients' interests at a time when the relationship of lawyer and client had not yet been
severed.

The fact that the properties were first mortgaged and only subsequently acquired in an
auction sale long after the termination of the intestate proceedings will not remove it from
the scope of the prohibition. To rule otherwise would be to countenance indirectly what
cannot be done directly.

There is no gainsaying that petitioners' predecessor-in-interest, as an heir, could

encumber the property adjudicated to him; that the Complaint in the Annulment Case did
not contain any specific allegation of fraud or collusion in obtaining the judgment
appealed from as opined by the Court of appeals in the Appealed Case; and that the
auction sale of the properties to Respondent Amonoy was judicially confirmed and
ownership and possession of the Controverted Parcels ultimately transferred to him.

Nonetheless, considering that the mortgage contract, entered into in contravention of

Article 1491 of the Civil Code, supra, is expressly prohibited by law, the same must be
held inexistent and void ab initio (Director of Lands vs. Abagat, 53 Phil. 147).

Art. 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy;

xxx xxx xxx

(7) Those expressly prohibited or declared void by law. These contracts cannot be
ratified. Neither can the right to set up the defense of illegality be waived. (Civil Code)

Being a void contract, the action or defense for the declaration of its inesistence is
imprescriptible (Article 1410, Civil Code). The defect of a void or inexistence contract is
permanent. Mere lapse of time cannot give it efficacy. Neither can the right to set up the
defense of illegality be waived (Article 1409, Civil Code).

The Controverted Parcels could not have been the object of any mortgage contract in
favor of Respondent Amonoy and consequently neither of a foreclosure sale. By analogy,
the illegality must be held to extend to whatsover results directly from the illegal source
(Article 1422, Civil Code). Such being the case, the Trial Court did not acquire any
jurisdiction over the subject matter of the Foreclosure Case and the judgment rendered
therein could not have attained any finality and could be attacked at any time. Neither
could it have been a bar to the action brought by petitioners for its annulment by reason
of res judicata. (Municipality of Antipolo vs. Zapanta, No. L-65334, December 26, 1984,
133 SCRA 820). Two of the requisites of the rule of prior judgment as a bar to a
subsequent case, namely, (1) a final judgment and (2) that it must have been rendered
by a Court having jurisdiction over the subject matter, are conspicuously absent.

And since the nullity of the transaction herein involved proceeds from the illegality of the
cause or object of the contract, and the act does not constitute a criminal offense, the
return to petitioners of the Controverted Parcels is in order.

Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute
a criminal offense, the following rules shall be observed:

xxx xxx xxx

(2) When only one of the contracting parties is at fault, he cannot recover what he has
given by reason of the contract, or ask for the fulfillment of what has been promised him.
The other, who is not at fault, may demand the return of what he has given without any
obligation to comply with his promise. (Civil Code).

WHEREFORE, certiorari is granted; the Order of respondent Trial Court, dated 25 July
1985, granting a Writ of Possession, as well as its Orders, dated 25 April 1986 and 16
May 1986, directing and authorizing respondent Sheriff to demolish the houses of
petitioners Angela and Leocadia Fornilda are hereby set aside, and the Temporary
Restraining Order heretofore issued, is made permanent. The six (6) parcels of land
herein controverted are hereby ordered returned to petitioners unless some of them have
been conveyed to innocent third persons.

With respect to petitioners' prayer for disbarment by reason of malpractice of Respondent

Amonoy embodied in their pleading entitled 'Mahigpit na Musiyung para Papanagutin
Kaugnay ng Paglalapastangan' and 'Masasamang Gawain (Mal-Pracrices) and
"Paninindigan (Memorandum)" both filed on Sergio I. Amonoy is hereby required, within
fifteen (15) days from notice hereof, to submit an Answer thereto. After receipt of the
same, a new docket number will be assigned to the case.

Costs against respondent, Sergio I. Amonoy.

SO ORDERED.