C.A. No. 17




Republic of the Philippines SUPREME COURT Manila EN BANC C.A. No. 17 May 24, 1948 SEVERINO ALBERTO, plaintiff-appellant, vs. M. DE LOS SANTOS, ETC., ET AL., defendants-appellees. Arcadio Ejercito for appellant. First Assistant Solicitor General Jose B. L. Reyes and Solicitor Inocencio Rosal for appellee Sheriff of Bulacan. Domingo S. Goce for Agricultural Credit Cooperative Association, of San Jose del Monte, Bulacan. FERIA, J.: This is an appeal from an order of the Court of First Instance of Bulacan which dismissed the complaint of the appellant upon motion of the appellees, on the ground that the complaint does not state a cause of action. The plaintiff's action is to compel the defendants to accept the sum of money offered by the former for the redemption of a parcel of land which, according to the allegations in the complaint, was sold on execution sale by one of the defendants, as sheriff of Bulacan, to the other defendants on March, 1941. In the complaint it is averred that "the period of redemption of said property sold at public auction should have expired on March 22, 1942, according to the certificate of sale, but because of the war declared on December 8, 1941 by the Japanese Empire against the United States of America, and the Commonwealth Government of the Philippines was under the sovereignty of the latter, the period of redemption was extended or interrupted. The lower court did not err in dismissing the plaintiff's action, for the plaintiff's contention that the period of redemption of his property sold on execution was suspended or interrupted by the war is untenable. The period within which a property sold on execution may be redeemed is not a limitation of action. But even if it be so considered, the ruling of this Court in the case of España vs. Lucido (8 Phil., 419) can not be applied to the present case. Because, as we have said in Rivero vs. Rivero¹ (G.R. No. L-578, April 30, 1948), promulgated recently, "the fundamental reason underlying status providing for suspension or extension of period of limitation is the legal or physical impossibility for the interested party to enforce or exercise in time his right of action"; and the war did not make it impossible for the herein plaintiff to exercise his right of redemption. In the said case of Rivero vs. Rivero, applicable a fortiori to the present case, this Court held the following: . . . Assuming as true the appellant's allegation that the "defendant-appellee was a "guerrillero" and hence it was difficult to contact him," such fact did not prevent the plaintiff-appellant from exercising his right during the period of redemption. Because the vendor who decide to redeem or repurchase a property sold with pacto de retro stands as the debtor and the vendee as the creditor of the repurchase price. And the plaintiff-appellant could and should have exercised his right of redemption against the defendant-appellee, if the latter was absent, by filing a suit against him and making a consignation with the court of the amount due for the redemption, under the provisions of the article 1176 of the Civil Code which provides: ART. 1176. If the creditor to whom tender of payments has been made should refuse without reason to accept it, the debtor may relieve himself of liability by the consignation of the thing due. The same effect shall be produce by consignation alone when made by the absence of the creditor, or if the latter should be incapacitated to accept the payment when it is due, or when several persons claimed to be entitled to received it, or when the muniments of the obligation have been lost or mislaid. x x x x x x x x x In view of the foregoing, the appealed order is affirmed, with costs against the appellant. So ordered. Paras, Perfecto, Bengzon and Tuazon, JJ., concur. Footnotes ¹ 80 Phil., 802. The Lawphil Project - Arellano Law Foundation