[ G.R. No. 48679. August 11, 1943 ] 74 Phil. 307
[ G.R. No. 48679. August 11, 1943 ]
EUSEBIO S. MILLAR, PLAINTIFF AND APPELLEE, VS. DOHOTEO NADHES, DEFENDANT AND APPELLANT. D E C I S I O N
MORAN, J.:
Under Rule 41, section 4, of the new Rules of Court, appellant is bound to specify in his notice of appeal the court to which the appeal is to be taken. And under Rule 42, section 3, where the appeal is based upon a pure question of law, appellant shall so state in his notice of appeal and then no other question shall be allowed and the evidence need not be elevated. In the instant case, appellant stated in his notice of appeal the following:
“Que interpone por el presente, apelacion de la decision dictada en el fondo en esta causa de fecha 11 de julio de 1941, y que mas arriba se transcribe para ante la Honorable Corte Suprema, teniendo en cuenta que todas las cuestiones envueltas en este litigio son en un noventa por ciento de derecho, pues si bien se ha cuestionado la conclusion de hecho, en cuanto a si la carta exhibit N-1, fue enviada o no realmente al demandado, sin embargo, en la motion de nueva vista se ha planteado la siguiente cuestion de derecho, aun para el caso de declarar.se probado tal hecho del envio, a saber; “‘Es contraria a derecho, y a la equidad, la conclusion del Juzgado, declarando que las supuestas cartas exhibits Q y N-l, pruebas self-serving, del demandante imponiendo la condicion del plazo, y fecha, aun suponiendo por gracia de argumento, que se consideren pruebas legales y competentes, son suficientes para haber extinguido el derecho de recompra del demandado, debido a que contradice las disposiciones del articulo 1125 del Codigo Civil, en relation con el articulo 1128 del mismo codigo. La conclusion del Honorable Juzgado en una palabra, y con el mejor respeto, equivale a sancionar, que el demandante se hiciera justicia para si mismo’.”
Since appellant caused this case to be elevated to this Court where no questions of fact may be allowed, we construe the above statement as a waiver on his part of the question of fact therein indicated to rely his appeal mainly upon the question of law therein specified. The facts as found by the trial court are the following. A judgment having been secured by plaintiff Eusebio S. Millar in the justice of the peace court of Tayabas against defendant Doroteo Nadres for the sum of P558.14, the provincial sheriff, pursuant to a writ of execution, sold at public auction the two parcels of land belonging to said defendant and plaintiff was the highest bidder for the amount of the judgment. Defendant failed to redeem the property within the time prescribed by the rules, and on March 8, 1934, a final deed of sale was executed in plaintiff’s favor and thereafter transfer certificates of title were issued to him. Subsequently, upon defendant’s request, plaintiff accorded him an option to repurchase the two parcels of land until December 31, 1934. In November of same year, defendant paid P200 on account but failed to pay the balance until the period of option expired. On defendant’s second request, plaintiff renewed the option to repurchase the property, the option to expire on April 30, 1938, but subject to the condition that the balance would carry an interest of 12 per cent per annum and that upon defendant’s default, the option would be automatically cancelled and that whatever defendant might have paid would be treated as rentals of the property to be computed at the rate of P20 per month from September, 1936. In accordance with this new agreement, defendant made a second payment of P200 in November, 1935, but having failed to pay the balance within the time stipulated, plaintiff instituted ejectment proceedings against him in the justice of the peace court of Tayabas. Defendant set up a claim of ownership and in view thereof, the parties mutually agreed to dismiss the ejectment proceedings and to submit the question of ownership to the Court of First Instance. The action to this effect was instituted in the latter court on March 26,1940, and after due trial, judgment was rendered wherein defendant’s option to repurchase the property was declared already forfeited. He was also condemned to pay plaintiff a monthly rental of P20 from May, 1938, and the P400 he had paid was ordered applied thereto. Finally, defendant was ordered to vacate the property and to deliver their possession to plaintiff. From this judgment defendant interposed the present appeal. Defendant now contends that, after his first option had expired on December 31, 1934, he made on November 18, 1935, a second payment on account of the redemption price in the sum of P200; that as plaintiff accepted such payment there was an implied extension of the period for the right of redemption, and since that extension has not been determined then by both parties, the court, not the plaintiff alone, can fix the period. This contention is not borne out by the facts found by the trial court. In the trial court’s decision it is stated that, upon the expiration of the first option on December 31, 1934, plaintiff gave defendant a second option to expire on April 30, 1938. There is nothing in the decision showing that an indefinite extension of time has ever been given impliedly the defendant. Furthermore, such an implied extension was without consideration in so far as plaintiff was concerned, and may be treated merely as a period of grace which may be made ineffectual upon failure of the debtor to comply with the terms thereof within a reasonable time. (Cf. Cu Unjieng e Hijos vs. Mabalacat Sugar Co., 54 Phil., 976, 978-979). The first option given the defendant was for one year, and when for more than three years he failed to take advantage of the period of grace given him, plaintiff was more than justified in terminating such period of grace. In this connection, a distinction should be drawn between the consideration for the option to repurchase and the consideration for the repurchase itself. The P400 paid by defendant to plaintiff were part of the repurchase price but not of the consideration for the option to repurchase. For such option and for the extensions given the defendant, no consideration at all has ever been paid to plaintiff. Thus, the provisions of article 1128 of the Civil Code do not apply. There is another consideration in plaintiff’s favor. When the first option was given the defendant, the latter bound himself to pay all the land taxes overdue on the property in question. Defendant failed to comply with such obligation and the property was sold at public auction. Defendant himself admitted that he did not appear at the public sale, but plaintiff appeared and purchased the property. Thus, plaintiff had a double title to the property, one derived from a judicial sale and the other from a tax sale. It is true that defendant paid also the over-due taxes to the municipal treasurer, but this he did after the property had been sold by the Government to plaintiff. Judgment is affirmed, with costs against appellant. Yulo, C. J., concurs.