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Republic of the Philippines

Regional Trial Court of Misamis Oriental


10th Judicial Region
Branch 24
Cagayan de Oro City

HEIRS OF PABLO VELEZ, CIVIL CASE No: 2013-172


namely: CRISANTO E.
VELEZ, REYNALDO E. For: “ANNULMENT OF DEED
VELEZ and LEO E. VELEZ OF SALES WITH PRAYER FOR
ISSUANCE OF TEMPORARY
Plaintiffs, RESTRAINING ORDER
AND/OR PRELIMINARY
versus INJUNCTION’

HEIRS of SPOUSES
FLORENTINO P.
LUMINARIAS AND
RUFINA CASTIGON,
namely: CONSUELO L.
CORRALES, EUTIQ
LUMINARIAS, DOROTEA L.
VARIAS, PATROCINA L.
ANAY, HERMINANDO
LUMINARIAS, EPITACIO
LUMINARIAS, VICTORIA
LUMINARIAS and
NEPOMUCINO LUMINARIAS,
JASMIN T. LUI AND THE
REGISTER OF DEEDS OF
CAGAYAN DE ORO CITY
D
efendants,
x-------------------------------------
------/

MEMORANDUM
PLAINTIFFS, through undersigned counsel,
respectfully submit this Memorandum unto this Honorable
Court:

PREFATORY STATEMENT
As a reply to the Memorandum on Defendant’s
Affirmative Defenses received by the undersigned counsel
on May 31, 2018, we respectfully submit the following
arguments:

ACTION IS NOT BARRED BY PRESCRIPTION

In the Memorandum filed by the Defendants, they


argued that the case should be dismissed for being barred
by Prescription. We respectfully disagree.

It is true that Article 1456 of the New Civil Code


provides that a person acquiring property through fraud
becomes by operation of law a trustee of an implied trust
for the benefit of the real owner of the property. However,
such Article does not apply to co-owners selling properties
owned by their fellow co-owners and without the consent
of the said co-owner who is entitled to its ownership.
Nemo dat quod non habet applies here, no one can give
what he doesn’t have. Plaintiffs seek for the Annulment of
Deed of Sale which is premised on a sale of property by
person who is not the owner thereof. Therefore, a
purchaser gains no better right than the seller who was not
actually the owner. Article 1459 of the New Civil Code
provides,

“The thing must be licit and the vendor must


have a right to transfer the ownership thereof at
the time it is delivered” (Emphasis supplied)

Here, the vendor of the property never had a right at


any given point in time to transfer the ownership of the
land rightfully owned by the late Pablo Velez, and by right
of succession herein Plaintiffs.

It would be gross injustice to Plaintiffs if they would


be deprived of their ownership over the property on the
fact that the prescriptive period commenced on the date of
registration of the conveyance and issuance of the new
certificate of title. Plaintiffs only discovered the void sale of
the properties owned by their predecessor recently and
they are still within the period for commencing an action
for annulment of deed of sale.
Defendants’ stretched out the meaning of the law by
arguing that this case is in the nature of a reconveyance.
As provided by the case of Consuelo N. Vda de Gualberto,
et al v Francisco H. Go, et al (G.R. No. 139843),

“An Action for reconveyance has its basis in


Section 53, paragraph 3 of Presidential Decree 1529,
which provides: In all cases of registration
procured by fraud, the owner may pursue all his
legal and equitable remedies against the parties to
such fraud without prejudice, howeverm to the rights
of any innocent holder of the decree of registration
on the original petition or application, XXX”
(Emphasis supplied)

Such was not the case here, it is not a fraudulent


registration of property but rather a fraudulent sale of a
titled property facilitated by a seller who is not the owner
thereof. However, instead of being a voidable sale due to
fraud, the sale of the property is one that is inexistent due
to the absence of any form of consent from the late Pablo
Velez or of his agents. Therefore, Article 1410 of the
New Civil Code applies,

“The action or defense for the declaration of the


inexistence of a contract does not prescribe.”

ACTION IS NOT BARRED BY LACHES

Defendant’s anchor their defense on laches on the


fact that Plaintiffs’ knew of their right to recover the title
during the lifetime of their parents. As mentioned by
Defendants in their Memorandum for Affirmative Defenses,
one of the elements of laches is “delay in asserting
complainant’s rights after he had knowledge of
defendant’s act and after he has had the opportunity
to sue”. Plaintiffs’ only recently have had the opportunity
to sue on the year of 2013 considering the expenses and
preparations a lawsuit demands.

The case of Estate of Late Encarnacion Vda. De


Panlilio v Dizon1 explains the concept of Laches,

“According to settled jurisprudence, laches


means the failure or neglect, for an unreasonable and
1
G.R. No. 148777 October 18, 2007
unexplained length of time, to do which by the
exercise of due diligence could or should have been
done earlier. Verily, laches serves to deprive a party
guilty of it of any judicial remedies. xxx”

Laches, unlike prescription, is not provided with a


definite time period for it to apply. It is not rather the delay
it concerns but rather the fact of the delay. The fact of the
delay made by the Plaintiffs’ can be fairly attributed to the
lack of opportunity to swiftly institute the action. The
Plaintiffs’ even upon learning the story of their parents,
took the diligence of doing the necessary research on the
records before finally deciding to risk the effort and
expenses a lawsuit needs. The length of time was not
unexplained for Plaintiffs’ were rather honest in saying that
they indeed learn of it initially from their parents, however
such does not imply that their parents have known about it
for a long time. Laches cannot be just raised by party for it
must be supported by evidence. There was also neither
neglect nor failure on the part of the Plaintiffs, as again to
reiterate there was no immediate opportunity to do so.

In the case of Associated Labor Unions (ALU) and


Divine Word University Employees Union v CA 2, the
Supreme Court said:

“In Santiago v Court of Appeals, we explained


that there is no absolute rule as to what constitutes
laches or staleness of demand; each case is to be
determined according to its particular circumstances”

Also, it is not true that it took about fifty (50) years


before the Plaintiffs asserted their right over the property.
Such fact is not supported by evidence and is merely
assumed from the moment of the alleged “sale”.

Not only is the action not barred by prescription,


laches has never set in.

ACTION HAS CAUSE OF ACTION

Defendants argue that Plaintiff lacks cause of action


on the basis of the fact that the Original Certificate of Title
No. 5950, registered in the name of Pablo Velez, was
already cancelled and in lieu thereof, that Transfer
Certificate of Title No. T-1079 was issued, by virtue of a
2
G.R. No. 156882 October 31, 2008
Deed of Sale executed by Cornelia Velez in favor of
Florentino P. Luminarias. All the more it proves that
Plaintiffs do have a cause of action, as the action
commenced is one that seeks to nullify the Deed of Sale.

It is true that the a TCT was issued in lieu of the OCT


registered in the name of the Late Pablo Velez, however
Plaintiffs question the Deed of Sale that lead to the OCT’s
cancellation. Pablo Velez, the registered owner via OCT No.
5950, never sold, conveyed nor alienated the land to
anyone, much less to a Florentino P. Luminarias.

Defendants cannot even present evidence to the


existence of the Deed of Sale, nor show proof that Pablo
Velez gave his consent to sell his title to the land. Further
bolstering the possibility that the sale was fraudulently
caused by a non-owner is the fact that Defendant’s title is
derived from Manuel Velez, instead of Pabloe Velez. Manuel
Velez is the owner of the adjoining lot.

The alleged Deed of Sale executed by a certain


Cornelia Velez in favor of Luminarias also prejudice the
Defendants for Cornelia Velez is not the owner of the lot,
but is rather Pablo Gomez. The title of Defendants are only
as valid as the Deed of Sale to which they derive such title.
Plaintiffs’ strongly maintain that Pablo Velez never
executed one in favor of Florentino P. Luminarias.
Defendants cannot even present a single document
showing the signature of Pablo Velez, rather Plaintiffs have
presented strong evidences of Pablo Velez’ ownership over
the land.

The fact that Spouses Florentino P. Luminarias and


Rufina Castigon Luminarias immediately took possession
over the property is of no moment, for in truth and in fact,
the title to the land was never theirs. And so, the
Defendants’ despite being legal heirs of Florentino
Luminarias do not have any superior right over the
Plaintiffs, the legal heirs of Pablo Velez.

Defendants also made mention of the fact that they


were the ones that paid the taxes due to the government.
We cannot blame them for doing so for they genuinely
believed the said land to be theirs, however payment of
taxes are not conclusive evidences of ownership. Even if
Defendants possessed the property in the concept of an
owner, it only makes them as adverse possessor for they
never had the legal title to the property.

Title cannot also solely be derived from the fact of


registration, especially if such registration was due to
fraudulent sale. It is the sale and the delivery of the object
that transfers ownership, or simply by tradition. Pablo
Velez never sold the property nor delivered it
constructively, to Florentino Luminarias.

PRAYER
WHEREFORE, Plaintiffs Crisanto E. Velez, Reynaldo E.
Velez and Leo Velez, Heirs of Pablo Velez, most respectfully
pray that the Honorable Court render the judgement;
1. Annulling the Deed of Definite Sale of the
Remaining Unsold Portion of Lot No. 369 of the
Cadastral Survey of Cagayan dated September 28,
1948, by and between Cornelia Velez and Spouses
Florentino P. Luminarias;

2. Annulling the Deed of Definite Sale dated


December 20, 1948 by and between Angelo (IIN)
Contreras and the Spouses Florentino P.
Luminarias;
3. Ordering the Register of Deeds of Cagayan de Oro
to cancel TCT No. T-53133 in the name of Jammin T.
Lui and issue a new Certificate of Title in the name
of the Heirs of Pablo Velez; and

4. Other reliefs and remedies as may be just and


equitable.

October 05, 2018, Cagayan de Oro City.


ROBERT N. GUMALING, JR.
Roll Of Attorneys No. 57413
TIN No. 273-972-979-000
BP Official Receipt No. 1080094 dated December 14, 2017;
Mis. Or.
PTR No. 8638498 dated January 3, 2018; Cagayan de Oro
City
MCLE Compliance No. V-0000815; July 5, 2013
MCLE Compliance No. VI-0003834; November 3, 2017
Contact No: 09750462297/09257341426
E-mail: rg012311@outlook.com/rgumalingjr@gmail.com
Office Address:
101-F, AM Velez Building, Corrales Ave., Cagayan de Oro
City