G.R. No. L-9058 - DECEMBER 1914 - PHILIPPINE JURISPRUDENCE CASE NUMBERCASE TITLE G.R. No. L-9058December 29, 1914 Julio Alagar vs. Francisco Pio de Roda, et al. G.R. No. L-9878December 24, 1914 United States vs. Frank Tupasi Molina G.R. No. L-9582December 24, 1914 Irene Calampiano vs. Eulalio Tolentino G.R. No. L-9405December 24, 1914 United States vs. Adel Hernandez, et al. G.R. No. L-9369December 24, 1914 United States vs. Alejandro Albao G.R. No. L-9337December 24, 1914 Prudencio De Jesus vs. City of Manila G.R. No. L-9225December 24, 1914 Juliana Solano, et al. vs. Vicente Salvilla, et al. G.R. No. L-8539December 24, 1914 Maria del Consuelo Felisa C. Roxas vs. Rafael Enriquez, et al. G.R. No. L-7847December 24, 1914 Buenaventure Dancel vs. Mamerto Dancel, et al. G.R. No. L-7747December 24, 1914 Severo Gorospe, et al. vs. Antonio Ilayat, et al. G.R. No. L-9308December 23, 1914 Juan Bernardo vs. M. B. Legaspi G.R. No. L-10037December 23, 1914 United States vs. Maximo Mallari G.R. No. L-8933December 22, 1914 Nicolas Gatdula vs. Simplicio Santos, et al. G.R. No. L-9991December 19, 1914 United States vs. Roman Maghirang, et al. G.R. No. L-8942December 19, 1914 Teofilo Torralba, et al. vs. Tomas Dejan, et al. G.R. No. L-10083December 19, 1914 United States vs. Sergio Villacruces G.R. No. L-8844December 16, 1914 Fernando Maulini, et al. vs. Antonio G. Serrano, et al. G.R. No. L-9677December 15, 1914 In Re: Tomasa Nepomuceno, Santos Cartagena vs. Isaias Lijauco, et al. G.R. No. L-9372December 15, 1914 Julia Tuason vs. Faustino Raymundo G.R. No. L-8797December 14, 1914 United States vs. Felix Rubin G.R. No. L-9408December 10, 1914 Demetria Cacho vs. Government of the United States G.R. No. L-9876December 8, 1914 United States vs. Adriano Panlilio G.R. No. L-9726December 8, 1914 United States vs. Carson Tylor G.R. No. L-9504December 5, 1914 Juan Poizat vs. George Morgan, et al. G.R. No. L-9853December 4, 1914 Chua Yeng vs. Insular Collector of Customs G.R. No. L-9417December 4, 1914 Pedro Martinez vs.Antonio Ramos G.R. No. L-9287December 4, 1914 Leon Juda vs. E. O. Clayton, et al. G.R. No. L-9188December 4, 1914 Gutierrez Hermanos vs. Engracio Orense G.R. No. L-9951December 3, 1914 United States vs. A. A. Addison G.R. No. L-9700December 3, 1914 United States vs. Benito Manabat, et al. G.R. No. L-9003December 3, 1914 Luis Rivaya vs. Felix Samson, et al. G.R. No. L-8976December 2, 1914 Gutierrez Hermanos vs. Narcisco Alegre, et al. G.R. No. L-8894December 2, 1914 Mariano Perfecto vs. Fulgencio Contreras, et al. G.R. No. L-10149December 2, 1914 United States vs. Juan Aguas, et al. G.R. No. 9259December 1, 1914 United States vs. Jose Patoto G.R. No. L-7945December 1, 1914 Candido Pascual vs. Eugenio del Saz Orozco, et al. The Lawphil Project - Arellano Law Foundation, Inc. Julio Alagar vs. Francisco Pio de Roda, et al. United States vs. Frank Tupasi Molina Irene Calampiano vs. Eulalio Tolentino United States vs. Adel Hernandez, et al. United States vs. Alejandro Albao Prudencio De Jesus vs. City of Manila Juliana Solano, et al. vs. Vicente Salvilla, et al. Maria del Consuelo Felisa C. Roxas vs. Rafael Enriquez, et al. Buenaventure Dancel vs. Mamerto Dancel, et al. Severo Gorospe, et al. vs. Antonio Ilayat, et al. Juan Bernardo vs. M. B. Legaspi United States vs. Maximo Mallari Nicolas Gatdula vs. Simplicio Santos, et al. United States vs. Roman Maghirang, et al. Teofilo Torralba, et al. vs. Tomas Dejan, et al. United States vs. Sergio Villacruces Fernando Maulini, et al. vs. Antonio G. Serrano, et al. In Re: Tomasa Nepomuceno, Santos Cartagena vs. Isaias Lijauco, et al. Julia Tuason vs. Faustino Raymundo United States vs. Felix Rubin Demetria Cacho vs. Government of the United States United States vs. Adriano Panlilio United States vs. Carson Tylor Juan Poizat vs. George Morgan, et al. Chua Yeng vs. Insular Collector of Customs Pedro Martinez vs.Antonio Ramos Leon Juda vs. E. O. Clayton, et al. Gutierrez Hermanos vs. Engracio Orense United States vs. A. A. Addison United States vs. Benito Manabat, et al. Luis Rivaya vs. Felix Samson, et al. Gutierrez Hermanos vs. Narcisco Alegre, et al. Mariano Perfecto vs. Fulgencio Contreras, et al. United States vs. Juan Aguas, et al. United States vs. Jose Patoto Candido Pascual vs. Eugenio del Saz Orozco, et al. The Lawphil Project - Arellano Law Foundation, Inc.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9058 December 29, 1914

JULIO ALAGAR,plaintiff-appellee,
vs.
FRANCISCO PIO DE RODA, MARIANO PIO DE RODA, and MARIANO MANALO,defendants-appellants.

Aurelio Cecilio for appellants.
Buencamino and Lontok for appellee.

JOHNSON,J.:

It appears from the record that some time before the commencement of the present action, the defendant, Francisco Pio de Roda, commenced an action in the Court of First Instance of the Province of Cavite, against Abdon Ambat and Isabel Bebe, for the purpose of recovering a sum of money due from the defendants to the plaintiff. Said action was known as cause No. 396. In said action a judgment was rendered in favor of the plaintiff and against the defendants. The defendants appealed to the Supreme Court, where the judgment of the lower court was affirmed, and the cause was remanded to the lower court for execution.

On the 4th day of April, 1911, an execution was issued upon said judgment and the property of Abdon Ambat and Isabel Bebe was attached. The plaintiff now claims that said execution included a portion or parcel of land particularly described in paragraph 3 of the present complaint, which belonged to him. The plaintiff alleges that he gave the sheriff notice of the fact that said parcel of land so attached belonged to him. Said notice was given in writing. The plaintiff also gave a bond to the sheriff, in order to have the attachment released upon said property. Notwithstanding said notice and said bond, the sheriff, in the month of December, 1911, sold the said parcel of land to the said Francisco Pio de Roda and Mariano Pio de Roda.

The defendants allege as a defense that said parcel of land, at the time of said attachment, actually belonged to Abdon Ambat and Isabel Bebe, and did not belong to the plaintiff.

Upon the issue thus presented, the lower court found that the preponderance of the evidence showed that the plaintiff was the owner of the land attached, and declared null and void the said sale and ordered the defendants to return the possession of said property to the plaintiff and also entered judgment against Francisco Pio de Roda and Mariano Pio de Roda, jointly and severally, for the sum of P160, for the use and occupation of said land, and to pay the costs. From that judgment the defendants appealed to this court. In this court the appellant alleges that the lower court committed the following errors:

The first and second assignments of error may be discussed together, inasmuch as they each relate to the ownership of the land in question. The lower court found that the plaintiff was the owner of said parcel of land; that the plaintiff had been in possession of the same for a period of thirty years and that he had inherited the same from his parents. An examination of the record brought to this court, in our opinion shows by a large preponderance of the evidence, that that finding of the lower court in fully sustained.

With refernce to the third assignment of error the facts shows that the clerk of the Court of First Instance of the Province of Cavite issued the said writ of execution on the 4th day of April, 1911; that the said writ ordered the sheriff to attach the specific property involved in this litigation; that the sheriff attached said property on the 7th day of June, 1911; that the property under said attachment was sold on the 28th day of December, 1911.

Section 445 of the Code of Procedure in Civil Actions provides: "The execution may be made returnable at any time not less than ten nor more than sixty days after its receipt by the governor on his deputy, to the clerk of the court rendering the judgment."

The lower court held that, inasmuch as the attachment was not made until after the expiration of the sixty days within which the writ should have been returned, the attachment was null and void. Said provisions were copied, almost word for word, from section 683 of the Code of Civil Procedure of the State of California. Said section (445) fixes the life of the writ of execution. The sheriff had no authority to make any attachments after the return day of said writ. If he had been unable to attach the property during the lifetime of the writ, it should have been returned and an alias writ issued. It was the duty of the sheriff to return the writ within the time fixed by law. It is the duty of an officer to whom a writ of execution is issued, to make return thereon on or before the time fixed by law, to the proper court or officer, whether it has been executed or not. (Clingmanvs.Barret, 6 Humphs. (Tenn.), 20; Billgeryvs.Ferguson, 30 La. An., 84.)

The attachment may be made at any time up to and including the very last day of the writ, but can not be made thereafter, without the issuance of an alias writ. After the property has been attached legally, within the lifetime of the writ, the property may be held by the sheriff and sold thereafter. The sale by the sheriff under a valid attachment after the return day of the execution, is valid, provided that the attachment was made during the lifetime of the writ. (Freeman on Executions, section 160; Southern California Lumber Co.vs.Ocean Beach Hotel Co., 94 Cal., 217; 28 Am. St. Rep., 115.)1awphi1.net

It would appear from the record that at the time the attachment was made, the life of the writ under which it was made had expired. The sheriff had no authority to make an attachment after the expiration of 60 days from the issuance of said writ. The sheriff should have secured an alias writ of attachment. We do not decide, however, at the present time, that the sale should be set aside for the reasons indicated. We find, however, that the record contains another reason which is sufficient to justify the setting aside of the sale and ordering the property returned to the plaintiff. That reason is that the property did not belong to the judgment debtors at the time of the sale, but to the plaintiff. The sheriff was without authority to sell the land of the plaintiff to pay the debts of another. For that reason the sale was illegal and void and the plaintiff is entitled to the possession of his property.

With reference to the fourth assignment of error, the defendants allege that they are possessors, in good faith, by virtue of the public sale made by the sheriff and should therefore be relieved from the payment of any sum whatever for the use and occupation of the property in question. The record shows that the parcel of land in question had been attached at the special instance and request of the defendants; that even after the plaintiff had notified the sheriff in writing that the land belonged to him, and had furnished a bond to the sheriff for the purpose of having said judgment discharged, the defendants insisted upon the sale of the same. The defendants had ample notice that the property was claimed by the plaintiff. Yet, notwithstanding that fact, they insisted upon the sale under said execution. Under these circumstances, we do not believe that they can be considered as possessors in good faith.

Having in view the foregoing conclusions, with reference to each of the assignments of error, we find no justification for reversing or modifying the decision of the lower court upon the statements made by the appellant in the fifth assignment of error.

After a careful examination of the record, with reference to the specific assignments of error, we find no good reason for modifying the judgment of the lower court. The same is therefore hereby affirmes, with costs. So ordered.

Arellano, C.J., Torres and Araullo, JJ., concur.
Carson, Moreland and Trent, JJ., concur in the result.