Pacay v. Carillo

[CA-No. 53860-R. October 1, 1976.] * MARIO PACAY, now substituted by his heirs , plaintiffs and appellees , vs . REMEGIA SOLVER CARILLO, ET AL. , defendants and appellants . Marciano C . Dating, Jr . for defendants and appellants. Pedro E . Bacorro for plaintiffs and appellees. SYLLABUS 1. JUDGMENTS; VALIDITY WITHOUT A VALID PRE-TRIAL. A decision on the merits in the presence of the parties without a valid pre-trial is not null and void. 2. TAX SALE; TITLE DOES NOT PASS TO GOVERNMENT IN CASE IT BUYS THE PROPERTY. Considering Sections 37 and 38 of Commonwealth Act 470, the title to the delinquent real property purchased by the local government, in case there is no bidder in the public auction or the highest bid is not sufficient to pay the taxes, does no pass to the local government. D E C I S I O N REYES, L. B. , J p : On March 21, 1968, Mario Pacay filed a complaint in the Court of First Instance of Camarines Norte, against Remegia Solver Carillo and Felicidad Carillo for recovery of property. The complaint was docketed therein as Civil Case No. 1896 and assigned to Branch II of the court for disposition. His allegations are that he is the owner of a parcel of land situated at Dulong Bayan Street, Daet, Camarines Norte, with an area of 715 square meters, having inherited it from his late father, Martin Pacay; that sometime in the year 1959, defendant Remegia Solver Carillo, his relative, requested him that she be allowed to construct a house of light materials thereon, on condition that anytime he would need the property, he could get it without any problem; that after defendants were granted permission to construct a house on the land, Florentino Carillo, husband of Remegia, declared the land on March 25, 1959, alleging that the same was an abandoned property; and that on several occasions since 1962 up to the filing of the complaint, he notified defendants to vacate the premises, as he would construct his own house thereon, but defendants refused to vacate the land. His prayer is that, after due hearing, he be declared the absolute owner of the land described in the complaint, and defendants be ordered to vacate the same. He asked for actual and moral damages. Defendants, in their answer, denied the material allegations of the complaint and alleged that they are the only co-owners of the land in question, being the only legitimate heirs of the late Florentino Carillo who bought the land from the Municipality of Daet, Camarines Norte, sometime in 1938, when the property was forfeited in favor of the municipality for failure of Martin Pacay to pay delinquent taxes in 1935; that since 1938, through their predecessor in interest, they have been in continuous, open exclusive and public possession of the land for almost thirty (30) years, and have been paying religiously the taxes thereon; and that, by way of affirmative defense, plaintiff's action has already prescribed. On August 18, 1969, when plaintiff Mario Pacay was already dead, the lower court proceeded to conduct a pre-trial of the case and required the parties to present their documentary evidence. On September 1, 1969, counsel for the heirs of Mario Pacay filed two motions namely, (1) a motion for substitution of party-plaintiff and (2) a motion to reconsider or modify the court's order of August 18, 1969, with the further prayer that the heirs of original defendants Remegia Solver Carillo, who died, be substituted. On September 15, 1969, the remaining defendant filed a motion for substitution of parties. Without acting on the motion of plaintiff to reconsider the order of August 18, 1969, and without conducting another pre-trial after the substitution of parties-plaintiffs and parties-defendants, the lower court tried the case on the merits. dctai The decision rendered is herein reproduced, in part, as follows: "It results that the ownership of the land in question had remained always in the original owner. The mere fact of defendants predecessor in interest having repurchased the land did not confer upon him and, therefore, to defendants herein the ownership of the land. This is evidenced by the fact that plaintiff's predecessor in interest has not stopped exercising acts of dominion over the property even long after the alleged tax sales. Thus plaintiff's predecessor in interest, Mario Pacay, has declared the property in his name; he has mortgaged the same twice with the Rural Bank of Labo, and has paid the taxes on the land from 1945 to 1969. "However, defendants are entitled to the reimbursed with the amount which their predecessor in interest redeemed the property. From exhibits 2 and 3, it appears that Florentino Carillo disbursed the total amount of P16.58. This amount should earn interest at the legal rate of six per cent (6%) from 1938 until paid. "WHEREFORE, judgment is hereby rendered: "a. declaring the plaintiffs, as successors in interest of the deceased Mario Pacay, the owner of the land described in this decision; "b. ordering the defendants to vacate the said land; "c. ordering the plaintiffs to pay the defendant the amount of P16.58 with interest at the legal rate of six per cent (6%) from 1938 until paid; and "d. without costs. "SO ORDERED." Defendants have taken an appeal and here assail the decision in the following assignment of errors: "I "That the lower court erred in proceeding with the trial on the merits without a valid pre-trial as required by Rule 20 of the Rules of Court. "II "That the lower court also erred in not finding that defendants-appellants have been in the physical possession of the premises for at least thirty (30) years. "III "That the trial court likewise erred in finding that plaintiffs predecessor in interest has not stopped exercising acts of dominion over the property even long after the tax sales. "IV "That the trial court further erred in not declaring that plaintiff's action has prescribed." There is no dispute that the land in question was originally owned by Martin Pacay, and Mario Pacay was the son and only heir of the former. The evidence of plaintiffs-appellees (heirs of Mario Pacay) is that defendants-appellants are close relatives of Mario Pacay and have been staying on the land since 1938 by permission of Mario Pacay; that the land was declared for taxation purposes in the name of Martin Pacay long before the outbreak of World War II; and that in 1960, the tax declaration in the name of Martin Pacay was superseded by the tax declaration in the name of his son Mario Pacay by virtue of a Deed of Extra-Judicial Partition and Sale executed by and between the heirs of Martin Pacay. The property became delinquent in the payment of realty taxes. The late Florentino Carillo repurchased it in the name of Martin Pacay by paying the delinquent taxes and surcharges (Exhibits "2" and "3"). On March 24, 1959, Florentino Carillo, without the knowledge of the heirs of the late Martin Pacay, executed an affidavit, claiming that the property belonged to him for having allegedly purchased it in a tax sale from the Municipality of Daet sometime in 1938 (Exhibit K ), and caused the same to be declared in his name (Exhibit "I"). Florentino Carillo began to pay realty taxes thereon only in 1959 (Exhibit "4"). In 1960 or 1961, when the late Mario Pacay was about to construct his house on the land, the late Florentino Carillo prevented him. Defendants-appellants have anchored their defense on the claim that they owned the land in question, having inherited it from Florentino Carillo who bought the property from the Municipality of Daet in 1938 when it was forfeited by the municipality for tax delinquency; and that since then they and their predecessor in interest have been in continuous, open, exclusive and public possession of the property for thirty (30) years, paying taxes thereon. Relative to the first assigned error, the argument of defendants-appellants is that pre-trial, as provided for in Rule 20 of the Rules of Court, being mandatory, and there being no valid pre-trial conducted by the lower court, they ventured that all proceedings had thereafter are null and void. They cited the circumstance that the heirs of plaintiff Mario Pacay moved for the reconsideration or modification of the pre-trial order of August 18, 1969, praying for further pre-trial to allow presentation of additional documentary evidence and for the other purposes set forth in Section 1, in relation to Section 4, Rule 20 of the Rules of Court. LLpr It is noted from the record that while the lower court was informed of the death of original plaintiff-appellee Mario Pacay, his widow, defendant Consuelo Aguirre, and her counsel, who also represented the other heirs of the deceased; were present; and defendant Felicidad Carillo and her counsel, who is also counsel of the heirs of Remegia Solver, appeared. The lower court conducted the pre-trial without any of the parties questioning the proceeding. There is nothing in the record which shows that the lower court had been duly advised of the death of Remegia Solver Carillo until after the termination of the pre-trial conference when counsel of defendants-appellants filed a motion for substitution of Remegia Solver Carillo. It is true that counsel for plaintiffs-appellees filed a motion to reconsider or modify the pre-trial order of August 18, 1969, but he did not press for resolution the motion. Defendants-appellants, on the other hand, made no move to question the pre-trial conference and the order of the lower court issued thereafter. There is no showing that the substantial rights of defendants-appellants were impaired or prejudiced in any way during the pre-trial conference. All that was done during the pre-trial conference was the marking and presentation of documentary evidence, and the formulation of the issues. We are not aware of a ruling, and the attention of this Court was not invited to any, that the decision of the trial court without a valid pre-trial is null and void. At any rate, the issue in the first assigned error was never raised by defendants-appellants in the lower court. It is well-settled rule that questions which were not raised in the lower court cannot be raised for the first time on appeal, except questions on jurisdictions over the subject matter. The contention of defendants-appellants under the second assigned error that they have been in the physical possession of the premises for at least thirty (30) years may be true, but it has not been adverse and under claim of ownership. In 1938, the late Florentino Carillo and his wife, Remegia Solver, requested permission from Mario Pacay to put up a small house on the land. Since then defendants-appellants have been staying on the land by tolerance of Mario Pacay and his wife, plaintiff-appellee Consuelo Aguirre, who were then administering the property left by Martin Pacay. Defendants-appellants never paid taxes on the property. It was only after March 25, 1953, when he declared the property in his name that Florentino Carillo began to pay taxes thereon. The position of plaintiffs-appellees is that it was only in 1959 when Florentino Carillo began to assert adverse claim of ownership over the land. Prior to 1959, Florentino Carillo and his wife had never performed any act by which they openly claimed ownership of the property to the exclusion of Mario Pacay and his successors in interest. LLpr The testimony of the widow of Mario Pacay to the effect that sometime in 1938 Florentino Carillo and his wife Remegia Solver requested her husband that they be allowed to erect a house on the land was corroborated by the testimony of the first witness of defendants-appellants, Arsenio Avellana, who testified: "Q Did you come to know how this Florentino Carillo and Remegia Solver were able to stay in that land adjacent to the property of your mother? "A They were allowed to erect their house in the property of Martin Pacay." (T.s.n., p. 3, hearing on March 8, 1973) Exhibits "2" and "3" of defendants-appellants show that Florentino Carillo merely repurchased the land by paying the delinquent taxes, but the property remained declared in the name of Martin Pacay (Exhibit "C"), and the tax declaration in the name of Martin Pacay was cancelled or superseded by the tax declaration in the name of his son Mario Pacay (Exhibit "B"), not by the tax declaration in the name of Florentino Carillo. This and the circumstance that Florentino Carillo began paying realty taxes on the land only in 1953 militate against defendants-appellants' pretension of continuous possession of the property since 1938 under claim of ownership. Although tax assessment and receipts are not evidence of title, they are strong corroborative proof of possession under claim of ownership. Well known is the principle that a person usually pays taxes on property which he owns. (Detera vs . Dulay, 49 O.G. 4883; Montemayor vs. Raborar, 53 O.G. 6696; Cumigad vs. Bunagan, CA-G.R. No. 24677-R, March 11, 1966). And non-payment of taxes indicates abandonment or lack of claim (Garcia vs. Garcia, CA-G.R. No. 16773-R, December 6, 1963; Teodoro vs. Agoncillo, CA-G.R. No. 30557-R, May 22, 1967). Section 377 of the Revised Administrative Code provides that the "redemption shall operate to divest the Philippine Government of its title to the property in question and to revert the same in the original owner, but where such redemption is effected by a person other than the owner, the payment shall constitute a lien upon the property and the person making payment shall be entitled to recover it from the original owner. Under Section 37 of Commonwealth Act No. 470, if the delinquent real property is sold at public auction, and there is no bidder or the highest bid is not sufficient to pay the taxes, the provincial treasurer may buy the real property in the name of the province. Under Section 38 of the same Act the property may be repurchased by the owner or by any other person in his behalf within one year by paying the tax delinquencies and penalties, plus cost and interest. It will be noted that under the law, the title to the delinquent real property does not in any case pass into the municipal government. Indeed, it is doubtful that the land in question was legally sold to Florentino Carillo by the Municipality of Daet. On the other hand, Exhibits "2" and "3" of defendants-appellants show that the ownership of the land in question has remained in the original owner. The only right of the heirs of Florentino Carillo is to claim reimbursement of what the latter paid, with interest. prcd Being a mere redemptioner or repurchaser of the property in the name of Martin Pacay, Florentino Carillo merely held the property in trust for said owner or his heirs or successors in interest, the herein plaintiffs-appellees. The third and fourth assigned errors cannot be sustained, it appearing that Florentino Carillo's possession of the land in question was not adverse and under claim of ownership. WHEREFORE, the decision appealed from is AFFIRMED. With costs against defendants-appellants. prcd SO ORDERED. De Castro and Ericta, JJ ., concur. Footnotes * Vol. 21 C.A.R. (2s), p. ___.