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Serrano Appellants Brief Draft NPG
Serrano Appellants Brief Draft NPG
COURT OF APPEALS
CA-G.R.CV-NO. 04302
-versus-
For: Annulment Documents
and Titles
APPELLANT’S BRIEF
SUBJECT INDEX
I. Assignment of Errors - - - - p. 1
II. Statement of the Case & Material Dates - - - pp. 2-4
III. Statement of Facts - - - - - pp. 4 -10
IV. Issues - - - - - p. 11
V. Arguments - - - - pp. 11-34
VI. Prayer - - - - p. 34
Case/Law Page
Intestate Estate of Petra V. Rosales, et. al. vs.
Fortunato Rosales, et.al., G.R. No. L-40789, February
27, 1987.
13
Article 970, NCC
Article 971, NCC
Article 979, Civil Code
Article 982, Civil Code
2
Napoleon D. Neri, et al. vs. Heirs of Uy, et al., G.R. No. 19
194366, October 10, 2012.
Tiburcio Samonte vs. Court of Appeals, et al., G.R. No.
104223, July 12, 2001. 23
ASSIGNMENT OF ERRORS
3
consign or deposit the redemption amount of P40,000.00
before the Office of the Clerk of Court to comply with the
requirement on legal tender of the redemption price. The court
a quo denied the motion in its Order dated December 21, 2012
since appellant’s right had yet to be determined.
4
The Decision was received on October 7, 2015. Appellant
filed her Motion for Reconsideration only with respect to the
ruling of the lower court that the action had prescribed already
since heirship was duly established. The motion was denied.
In its Order dated January 14, 2016, the court a quo ruled
that:
STATEMENT OF FACTS
5
(Mercedes for brevity). Fernando was born on October 1, 1904
while Mercedes was born on January 30, 1903. Their
respective Certificate of Live Birth could not be found and this
fact is attested to by the National Statistics Office Certifications
marked as Exhibit “S” and Exhibit “V” respectively. The best
secondary evidence available to prove their birth and the fact
that they were the legitimate children of Tomas and Sufia
Serrano is their Certificate of Baptism issued by the San Pedro
Cathedral Parish, Davao City marked as Exhibit “C” and Exhibit
“C-1”. Such certificates are in Spanish language but an English
translation was provided by appellant’s expert witness Rudelyn
F. Demerin who executed a Judicial Affidavit marked as
Exhibits “E to E-1”. The latter’s expertise to be able to read,
speak, write, understand and translate Spanish to English was
duly established during her testimony sometime on February
4, 2014. It is also supported by documents marked as Exhibits
“A”, “A-1”, “A-2”, “B” and “B-1”. The English translations are
marked as Exhibits “D and D-1”.
7
Hernandez, Jr., Surveyor, under the supervision of
Manuel Carreon, Public Land Surveyor, on
November 12-13, 1923 and approved on July 27,
1925.”
8
committed fraud and deceived appellant by misrepresenting
and concealing a material fact that Enrique was the “only sole
heir of the deceased” Tomas Serrano despite actual knowledge
that appellant was alive at the time of the execution.
9
wanted to redeem or buy-back the property sold by Enrique to
Ederlina, a stranger under the law.
10
denied. In its Order dated January 14, 2016, the court a quo
ruled that:
11
ISSUES
ARGUMENTS
12
which the latter would have if he were living or if he could
have inherited.2 The representative is called to the succession
by the law and not by the person represented. The
representative does not succeed the person represented but
the one whom the person represented would have succeeded. 3
13
the latter died in 1963 and the prevailing law on property
relations between spouses at that time was the Civil Code. The
Family Code took effect only on August 3, 1988. Article 148 of
the Civil Code states:
15
23. Being a co-owner and co-heir, appellant has the right
to partition the estate of Tomas Serrano as provided under
Article 1083 of the Civil Code which is applicable both to
intestate and testate succession. Partition is proper inorder
that the share of the appellant would be satisfied. The share
due to appellant should be reconveyed and delivered to her by
the appellees.
26. The sale was also made before the partition of the
estate. What happened was only an adjudication and not
partition as defined by Article 1079 of the Civil Code which
states: “Partition, in general, is the separation, division and
16
assignment of a thing held in common among those to whom it
may belong. The thing itself may be divided, or its value.”
There was no separation, division and assignment of the estate
between appellant and the late Enrique. Thus, there was no
partition yet. Partition is imprescriptible and cannot be barred
by laches.6
27. Moreover, the condition has not taken place yet since
no written notice was sent to appellant. The written notice is
mandatory.7 The person having the right to redeem, appellant
in this case, is entitled to the written notice. If the notice is not
given, the 30-day period has not even begun to run. 8
17
court a quo erred in ruling that the
action already prescribed.
9 There was a clerical error in the Judicial Affidavit of the plaintiff particularly on question number
48 stating that she first discovered it on or about November 13, 2013. The complaint and
memorandum clearly states that plaintiff discovered the fraud and her rights sometime on
November 14, 2012 after she received certified copy of the Affidavit of Self-Adjudication dated
18
November 14, 2016. That was the first time that plaintiff
actually discovered the fraud when she received a certified
copy of the Affidavit from the Register of Deeds, Davao del
Norte. Thus, when the case was filed on November 21, 2012,
the four-year period had barely begun to run. The case was
filed on time.
19
“xxxx while the sale occurred beyond the 5-year
prohibitory period, the sale is still void because
Eutropia and Victoria were deprived of their
hereditary rights and that Enrique had no judicial
authority to sell the shares of his minor children,
Rosa and Douglas. Consequently, it rejected the
defenses of laches and prescription raised by
spouses Uy, who claimed possession of the subject
properties for 17 years, holding that co-ownership
rights are imprescriptible.”
20
has not participated therein or had no notice
thereof." As the partition was a total nullity and did
not affect the excluded heirs, it was not correct for
the trial court to hold that their right to challenge
the partition had prescribed after two years from its
execution…
21
prescribe" in accordance with Article 1410 of the
Civil Code.” (Emphasis supplied.)
36. The lower court also ruled that prescription had long
set in because the registration of the affidavit and deed of
conveyance that paved the way to the cancellation of the
mother title and the issuance of new ones operated as
constructive notice to the whole world. Further, it was held
that prescription cannot be reckoned from discovery of the
documents but from the registration in 1984.
22
38. Petitioner therein invoked prescription and the doctrine
that discovery of fraud is deemed to have taken place at the
time of the registration as held in Carantes vs. Court of
Appeals, 76 SCRA 514, among other cases. On such issue, the
Supreme Court held:
23
It is true that registration under the Torrens system
is constructive notice of title, but it has likewise
been our holding that the Torrens title does
not furnish a shield for fraud. It is therefore no
argument to say that the act of registration is
equivalent to notice of repudiation, assuming
there was one, notwithstanding the long-
standing rule that registration operates as a
universal notice of title.
24
Enrique executed the Affidavit, he unlawfully acquired
appellant’s share through fraud. And because of that, an
implied constructive trust was created. Article 1456 of the Civil
Code states:
25
was presented in 1974. Has prescription then, set
in?
26
It is true that registration under the Torrens system
is constructive notice of title, but it has likewise
been our holding that the Torrens title does not
furnish a shield for fraud. It is therefore no
argument to say that the act of registration is
equivalent to notice of repudiation, assuming there
was one, notwithstanding the long-standing rule
that registration operates as a universal notice of
title.
27
43. As in this case, appellant was kept in the dark. Hence,
the cause of action accrues from the time she actually
discovered the fraud on November 14, 2012, and not from the
time of registration. Moreover, defendants were not able to
present evidence on their defenses because they were
declared in default.
28
confirm or record nothing. Petitioners cannot rely on
the registration of the lands in Jose’s name nor in the
name of the Heirs of Jose M. Ringor, Inc., for the
wrong result they seek.
29
obligates himself to transfer the ownership of and to
deliver a determinate thing, and the other to pay
therefor a price certain in money or its equivalent."
It is essential that the vendors be the owners of the
property sold otherwise they cannot dispose that
which does not belong to them. As the Romans put
it: “Nemo dat quod non habet” No one can give
more than what he has. The sale of the realty to
respondents is null and void insofar as it prejudiced
petitioners' interests and participation therein. At
best, only the ownership of the shares of Luisa,
Maria and Guillerma in the disputed property could
have been transferred to respondents.
30
Php40,000.00. Article 1088 of the Civil Code states: “Should
any of the heirs sell his hereditary rights to a stranger before
the partition, any or all of the co-heirs may be subrogated to
the rights of the purchaser by reimbursing him for the price of
the sale, provided they do so within the period of one month
from the time they were notified in writing of the sale by the
vendor.”
48. The sale was also made before the partition of the
estate. What happened was only an adjudication and not
partition as defined by Article 1079 of the Civil Code which
states: “Partition, in general, is the separation, division and
assignment of a thing held in common among those to whom it
may belong. The thing itself may be divided, or its value.”
There was no valid separation, division and assignment of the
estate between appellant and the late Enrique Serrano. Thus,
there was no partition yet. Partition is imprescriptible and
cannot be barred by laches.10 There should be lawful partition
of the estate left by Tomas Serrano. To reiterate, the transfer
to appellees was null and void insofar as the share of the
10 Sta. Ana vs. Lourdes Panlasigue, G.R. No. 152652, August 31, 2006.
31
appellant is concerned. The share belonging to the appellant
must be given to her in full.
32
considering the Deed of Sale
allegedly executed by the
appellant.
13 Westmont Investment Corporation vs. Amos P. Franca, Jr. et. al GR No. 194128, December
7, 2011.
14 Heirs of Pedro Pasig vs. Parocha, GR No. 155483, April 27, 2007
33
witnesses in court. That document was a matter of defense,
but was not identified or presented during trial in view of the
default.
34
57. The adjudication is based on Enrique’s being the sole
heir of Tomas Serrano. He did not even mention the sale way
back in 1968. The sale is clearly spurious.
PRAYER
By:
ATTY. NUMERIANO P. GALGO, JR.
For the Appellant
Notarial Public Until Dec. 31, 2016
Roll No. 53267; TIN: 266-299-414
IBP OR No. 957067; 1-04-16
PTR No. 1843497; 1-04-2016; Tagum City
MCLE Compliance No. V-0014464; valid until April 14, 2019;
Pasig City
[email protected]
Copy furnished:
35
Atty. Gerardo Braganza
Counsel for defendants Serrano RR No. ___________
Rm. 7-C, Casa Antonio Bldg. Date: ___________
Paseo dela Habana, No. 29
Rizal Street, Davao City
36