[ G.R. No. 32124. March 27, 1930 ] 54 Phil. 683
[ G.R. No. 32124. March 27, 1930 ]
AQUILINO F. PANDO, ADMINISTRATOR OF THE ESTATE OF THE DECEASED ADOLFO F. PANDO, PLAINTIFF AND APPELLEE, VS. CARMEN KETTE AND GEORGE C. SELLNER, DEFENDANTS AND APPELLANTS. D E C I S I O N
VILLAMOR, J.:
h1 { } h2 { background-color:#cccccc; font-weight: bold; } h3 { font-weight: bold; text-transform: uppercase; } div#footer { }This is a foreclosure of mortgage. Judgment having been rendered in favor of the plaintiff, he prayed and obtained from the court below the proper writ of execution. In pursuance thereof the sheriff, on January 30, 1929, posted notices of the sale of the land described in said writ in three public places, to wit, upon the land itself, at the market, and on the municipal building of Pasay, and the sale took place on February 19th following. On the same day, that is, January 30, 1929, notice of the sale was sent to the newspaper La Opinion for publication, and the editor certified that he published it once a week for three consecutive weeks, more particularly on the 2nd, 9th, and 15th of February, 1929.
The provincial sheriff applied to the court for approval of the sale, to which the defendants objected on the ground that the publication required by law for the public auction sale of real property had not been made, thereby clearly violating section 454 of the Code of Civil Procedure, providing for the publication of the notice of sale in a newspaper. Having heard both the sheriff’s motion and the defendants’ objection, the court below decreed:
“Considering the motion of the plaintiff herein filed through counsel, praying that the public auction sale of the property under execution herein carried out by the sheriff of this province on February 19, 1929, in favor of said plaintiff, and considering also the two written oppositions thereto filed by counsel for defendant Carmen Kette; and
“Whereas it appears that said sale was duly and lawfully conducted, and that no irregularity sufficient to warrant disapproval of said motion has been committed.
“The sale in question is hereby approved. So ordered.”
The defendants appealed from this order, and in their brief assign nine errors, not one of which has sufficient merit to justify the reversal of the order appealed from.
The principal ground for this appeal is that the notice of sale was insufficient.
Section 454 of the Code of Civil Procedure provides: “Sec. 454. Advertisement of Property to be Sold on Execution.—Before the sale of property on execution, notice thereof must be given, as follows:
“3. In cases of real property, by posting a similar notice particularly describing the property, for twenty days in three public places of the municipality or city where the property is situated, and also where the property is to be sold, and publishing a copy thereof once a week, for the same period, in some newspaper published or having general circulation in the province, if there be one. If there are newspapers published in the province in both the Spanish and English languages, then a like publication for a like period shall be made in one newspaper published in the Spanish language, and in one published in the English language: Provided however, That such publication in a newspaper will not be required when the assessed valuation of the property does not exceed four hundred pesos;
“4. * * * * *
This provision is taken almost literally from section 692 of the California Code, which reads:
“692. Notice of sale under execution, how given.—Before the sale of the property on execution, notice thereof must be given, as follows:
“1. * * * * *
“2. * * * * * *
“3. In case of real property: by posting a similar notice, particularly describing the property for twenty days, in three public places of the township or city where the property is situated, and also where the property is to be sold, and publishing a copy thereof once a week for the same period, in some newspaper published in the county, if there be one.”
This section of the California Code has several times been construed by the Supreme Court of that state. In Northern C. I. Trust vs. Cadman (101 Cal., 200, 204; 35 Pac. Rep., 557), it was held: “These sections (692 and 693) enjoin upon the sheriff both the duty and the responsibility of posting and publishing the notices of sale as prescribed, which injunction necessarily implies the duty and responsibility of selecting the places where the notices are to be posted, and the newspapers in which they are to be published, since they are not specified. He is .required to post the notices in three public places in the township, etc., and to publish them in some newspaper in the county once a” week, under a heavy penalty, besides his responsibility for all damages.”
In Frink vs. Roe (70 Cal., 296), it was held: “A failure to give the proper notice of a sale of real estate under an execution does not invalidate the sale.”
In Smith vs. Randall (6 Cal., 47), it was stated: “If the sheriff, before a sale of real estate under execution, neglects to give the proper notice, the statute gives an adequate remedy against the officer. There is not sufficient cause to set aside or avoid the sale.”
In Shores vs. Scott River Water Company (17 Cal., 626), it was stated: “This is an appeal from an order refusing to set aside a sale made under a judgment of foreclosure. Various objections are urged to the validity of the sale, none of which, we think, are well taken. There is nothing in the point that the sale was made upon insufficient notice. The statute provides an adequate remedy in such cases by an action against the officer; and in Smith vs. Randall (6 Cal., 47) it was held that this provision was exclusive in its terms, and that the party aggrieved was entitled to no other remedy.”
The provision of our Code of Civil Procedure having been adopted from section 692 of the California Code, it must be understood that our law was promulgated with the construction placed upon it by the State of California. (U. S. vs. De Guzman, 30 Phil., 416; Cerezo vs. Atlantic, Gulf & Pacific Co., 33 Phil., 425; Tamayo vs. Gsell, 35 Phil., 953.)
We have not overlooked the fact that this court has held in Campomanes vs. Bartolome and Germann & Co. (38 Phil., 808) y that “if the sheriff sells property seized under execution without notice or at a time or place other than that designated in the notice, and in doing so acts under inducement or promise of indemnity by the judgment creditor, the sheriff and such judgment creditor are joint tort feasors, and are liable in solidum for all damages caused by their wrongful act;” and in Borja vs. Addison (44 Phil., 895), that if a sheriff sells land without the notice prescribed by the Code of Civil Procedure, induced thereto by the judgment creditor or his agent, and the purchases at the sale is the judgment creditor, the sale is void and no title passes. It was likewise held in Iturralde vs. Velazquez and Babasa (41 Phil., 886), that under the facts stated in the opinion, for the reason that the proper notice was not given and because the price received by the sheriff was insufficient, the sale was invalid and should have been annulled. And in this same case, the court cited with approval volume 10 R. C. L., 1294, as follows:
“As a general rule the title acquired at the sale is not affected by the want of notice, except where a contrary rule is established by statute, at least if the purchaser has bought innocently, and no collusion appears. And it is not incumbent on the purchaser to see that the sheriff has properly advertised the sale. Any person injured by the officer’s neglect of duty may hold him to such damages as have accrued therefrom. As between him and the execution defendant he may be regarded as a trespasser ab initio. In some instances a failure to give notice may be ground for setting aside the sale in a direct proceeding between the parties, particularly under other circumstances of hardship or irregularity.”
But it must be observed, however, that the facts in the instant case differ from those of the three cases of Campomanes, Borja, and Iturralde above cited. As has been stated, the sheriff posted the notice of the sale in three public places on January 30,1929, which was also published in La Opinion once a week for three consecutive weeks, that is, on the 2nd, 9th, and 15th of February of that year. The sale took place on the 19th of February of said year. It does not appear in the record that in conducting the sale the sheriff was induced by the judgment creditor.
In view of these facts it is evident that the notice of sale was posted in three public places for a period of twenty days prior to the sale, as required by law. That the notice was published in La Opinion three times during the same period of twenty days, once a week, is likewise evident, bearing in mind that from the 30th of January to the 19th of February, 1929, comprises a period of three weeks, though the number of days from the 2nd to the 15th is less than the number of days included in said three weeks. It must be noted that where a newspaper is published in the province, or is in general circulation therein, the law only requires the notice of sale be published in said paper three times, once a week during the period of twenty days. The question is, When do these twenty days begin?
As far as we are aware, in this jurisdiction ever since the Code of Civil Procedure was promulgated, judicial officers have computed the duration of the notices of public auction sales published in newspapers from the time said notices were posted at the places prescribed by law, on the ground, no doubt, that considering the local conditions, especially of those who live in remote provinces, the posting of notices in such places is the most effective way of advertising the proposed public auction of real property.
In the case in question, we see no reason for not following such an interpretation. From the posting of the notice in three public places until the day of the sale, twenty days have elapsed. The notice was published in the La Opinion once a week during the three consecutive weeks included in the twenty days.
Wherefore, we are of opinion and so hold, that the requirements of the law regarding the notice of the sale in question have been substantially complied with, and the order appealed from being in accordance with the law, it must be, as it is hereby, affirmed, with costs against the appellants. So ordered.
Johnson, Malcolm, Ostrand and Villa-Real, JJ., concur.