Detera v. Dulay

[CA No. 8841-R. July 21, 1953.] BONIFACIO DETERA , plaintiff and appellee , vs . TIMOTEO DULAY, SEVERINO DESACADA and VICTORIA DE PALMA , defendants and appellants . Hugo D . Dado for appellants. Leon C . Gajo for appellee. SYLLABUS 1. EVIDENCE; TAX RECEIPTS ARE STRONG EVIDENCE OF POSSESSION. Although tax receipts are not necessarily evidence of title, no one can deny that they are strong evidence of possession, for no one in his right mind would be paying taxes year after year for a property that is not in his actual or at least constructive possession. 2. PLEADING AND PRACTICE; APPOINTMENT OF COMMISSIONER TO RECEIVE EVIDENCE; CIRCUMSTANCES IMPLYING WAIVER TO OBJECT TO PROCEEDING BEFORE COMMISSIONER. Even granting that the trial court had no legal authority to appoint a commissioner to receive the evidence of appellee on September 18, 1950 when appellants failed to appear for trial, we believe that they impliedly waived their right to object against the proceedings before the commissioner when their attorney asked the court that he be permitted to be present and to cross-examine the witnesses for the appellee, and when at the new trial they prayed "to be permitted to cross-examine the witnesses for the plaintiff who had already testified" without asking that the proceedings had before the commissioner be set aside. 3. ID.; NEW TRIAL; GRANTING OF, WITHIN SOUND DISCRETION OF COURT. The granting of a new trial is a matter completely within the sound discretion of the trial court and the latter could grant it under such terms and conditions as it may deem fair and just. (Section 3, Rule 37, Rules of Court; Soriano vs . Aquino, 31 Phil., 176; Tan vs . Go, 47 Phil., 89.) D E C I S I O N DIZON , J p : This is an action to quiet title over a parcel of land located in barrio Dal-og, Bacon, Sorsogon, with an area of 13,975 square meters and more particularly described in the complaint and the appealed judgment. Appellee's complaint alleged that he had purchased the property from Pablo Dematera who, in turn, had bought it from Ciriaco Dulay. Upon the other hand, the answer of the appellants averred that they had inherited the property from Ciriaco Dulay and further denied the alleged sale in favor of appellee. When the case was first set for trial appellants failed to appear and, as a result, the court appointed a commissioner to receive appellee's evidence and thereafter rendered judgment declaring him "as the lawful owner of the land in question with right to the possession and enjoyment thereof, and condemning the defendants to deliver said possession to plaintiff. Defendants are further condemned to pay to plaintiff as damages for their usurpation of the land the sum of P270 for the coconuts said defendants unlawfully gathered in 1947, and the sum of P900 as yearly damage from 1948 and until actual delivery of the land to plaintiff has been effected by said defendants, plus the costs of this action." The circumstances leading to the trial before the commissioner appear in the record as follows: "Atty. LEON GAJO: "This case was called for trial this morning, the plaintiff and his witnesses and his attorney were present and prepared for the trial. On the other hand, the defendants and their witnesses were not present when this case was called this morning. The attorney for the defendants, Atty. Dado manifested that his witnesses will arrive in a short time. The court ordered that if the witnesses of the defendants and the defendants themselves should not arrive at around 10:30, the plaintiff will be permitted to present their evidence in the absence of the defendants and their witnesses. As 10:30 came, the court called again this case and the defendant and their witnesses did not arrive, so the court ordered the plaintiff to present their evidence before the clerk of court. "The Court, however, on petition of Atty. Dado for the defendants permitted Atty. Dado to be present to cross-examine the witnesses of the plaintiff. As the office of the clerk of court was busy in the morning and in pursuance also with the verbal order of the court that in case this case could not be heard in the clerk of court's office in the morning, it should be conducted in the afternoon. In this instance Atty. Dado manifested that he could not be present in the afternoon and desired to ask for postponement, but the court permitted the plaintiffs to present their evidence in the office of the clerk of court, either in the morning or in the afternoon." (t. s. n., pp. 1-2, Datar.) Upon a verified motion filed by appellants said decision was set aside and a new trial granted to give them an opportunity to present their evidence. After the new trial the court rendered the appealed judgment, the dispositive part of which is as follows: "In view of the foregoing considerations, judgment is hereby rendered by this court in favor of plaintiff and against the defendants, declaring the former as the lawful owner of the land in question, with right to the possession and enjoyment thereof and its produce; and condemning the defendants to deliver the possession of said land to plaintiff. Defendants are further condemned to pay the plaintiff for the occupation of the land the sum of P270 for the coconuts the said defendants unlawfully gathered in 1947 and the sum of P900 as yearly damage from 1948 until actual delivery of the land to plaintiff has been effected by said defendants, plus the costs of this suit." (Record on Appeal, pp. 22-23.) Both parties having admitted that the original owner of the property in question was Ciriaco Dulay, the remaining vital questions to be determined are firstly, whether or not Dulay had sold the property to Pablo Dematera; secondly, whether or not the latter, in turn, resold the property to appellee; and lastly, the question of who has been in actual, open, adverse and continuous possession of the property during the last thirty or forty years? There is no documentary evidence to prove the sale made by Ciriaco Dulay in favor of Pablo Dematera, but the record has sufficiently established in this connection that Pablo Dematera had enjoyed actual and physical possession of the property sometime before 1909 and that on February 1 of said year, he executed the private deed of sale Exhibit A in favor of the herein appellee of the parcel of land now in question. In one of its paragraphs the vendor expressly stated that he had purchased the property from Ciriaco Dulay years before and that since the purchase he had been in physical possession of the property. The evidence likewise shows satisfactorily that appellee took possession of the property upon the execution of the sale in his favor on February 1, 1909 and the record further shows that he has been paying the taxes due thereon at least from 1918 to 1948, or for a period of 30 years. Although tax receipts are not necessarily evidence of title, no one can deny that they are strong evidence of possession, for no one in his right mind would be paying taxes year after year for a property that is not in his actual or at least constructive possession. Upon the other hand, appellants' contention that they had been in actual possession of the property all these years is supported only by inconclusive oral testimony, while their documentary evidence, Exhibits 1 and 2, do not necessarily conflict with the evidence introduced by appellee. Exhibit 1 is tax declaration No. 16678 in the name of Ciriaco Dulay issued in 1935 and purports to supersede tax No. 7867 also in the name of Ciriaco Dulay. The year of issuance of this tax No. 7867 has not been proven. Exhibit 2 is a tax receipt is the name of Ciriaco Dulay issued on May 31, year illegible, because part of the receipt appears to have been destroyed by moth. The last number in handwriting, however, appears to be '7' so it is entirely possible that it is a receipt issued on May 31, 1907. As stated heretofore, this does not necessarily deny appellee's contention that the property had been sold by Dulay to Pablo Dematera before 1909. aisadc The evidence for appellee has likewise established that on June 2 and September 13, 1947, appellants entered the property described in the complaint by stealth and gathered therefrom, on the first day, about 700 coconuts, and on the second, about 2,000, and that they had made several attempts thereafter to take away the possession of the property from appellee. These facts clearly entitle the latter to the remedy prayed for in his complaint. The first two assignment of errors made in appellant's brief we find without merits. Even granting that the trial court had no legal authority to appoint a commissioner to receive the evidence of appellee on September 18, 1950 when appellants failed to appear for trial, we believe that they impliedly waived their right to object against the proceedings before the commissioner when their attorney asked the court that he be permitted to be present and to cross-examine the witnesses for the appellee, and when at the new trial they prayed "to be permitted to cross-examine the witnesses for the plaintiff who had already testified" without asking that the proceedings had before the commissioner be set aside." And as far as the ruling of the court denying them the right to cross-examine appellee's witnesses is concerned it must be borne in mind that the granting of a new trial is a matter completely within the sound discretion of the trial court and that the latter could grant it under such terms and conditions as it may deem fair and just. (Section 3, Rule 37, Rules of Court; Soriano vs . Aquino, 31 Phil., 176; Tan vs . Go, 47 Phil., 89.) It is clear, therefore, that appellants were not entitled as of right to cross-examine the witnesses for appellee, and there being no sufficient showing that in denying them that right the trial court committed a grave abuse of discretion, we are constrained to let matters remain as they are. Wherefore, the trial court not having committed the errors assigned in appellants' brief and the appealed judgment being in accordance with law and the evidence, the same is hereby affirmed, with costs. cdta So ordered. Concepcion and De Leon, JJ . , concur.