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[ GR No.s, Nov 28, 1959 ]



106 Phil. 630

[ G.R. No.s, L-13035 and L-13740, November 28, 1959 ]




These are two appeals interposed by the  spouses  Severo Arce, and Anastacia Feria, from  the decisions of the Court of First Instance  of Zambales,  in Civil Cases Nos. 1666 and 1690, dismissing, in the first case, the spouses' complaint for annulment of the deed of sale   (Exh. A, and Exh. 3) conveying to their daughter Emperatriz  Arce, one rice thresher and a  tractor both described in  the complaint,  and  likewise  dismissing, in  the second  case,  the spouses petition for injunction to restrain  the sale of the same thresher and tractor by the deputy provincial  sheriff  of Zambales in  virtue of the extrajudicial foreclosure of the  chattel  mortgage executed  by  the  said  Emperatriz Arce in favor of the appellee Genoveva B. Ballesteros  as security for  the payment of  a loan of P10,000.00, with interest and attorney's fees in case of default.  Both cases were submitted and decided on the  same evidence presented by both parties. There being but  one sole pivotal issue in these two appeals, which is the validity of the deed  of sale (Exh. A. and Exh. 3) sustained by the lower court in both cases, these appeals will be disposed of in this single decision.

The deed of sale sought to be  annulled dated September 3, 1953, m a duly notarized document, registered in the Office  of the  Register of Deeds of Zambales,  wherein  it appears that Severo Arce and Roque de Jesus, father and brother-in-law respectively of Emperatriz Arce, had sold, ceded, transferred and  conveyed to the latter, in  consideration of the sum of P20,000.00 paid in  hand,  receipt whereof was  acknowledged and  confessed,  the  aforementioned rice thresher and tractor which, it was declared, had been acquired by the vendors from one Marcial Feria as evidenced by another  public document (Exh. 1).. Upon the strength of this  deed, Emperatriz Arce, on February 9, 1954, obtained a loan in the sum of P10,000.00  from appellee Genoveva Ballesteros[1] and on the  same date executed a chattel mortgage which was later duly registered in the Office of the Register of Deeds  of Manila and with the Register of Deeds of Zambales.  The mortgagor having failed  to settle   the  loan on  May  9,  1954, the due date, the mortgagee took steps to foreclose the same by having the deputy provincial sheriff of Zambales publish the sale in public auction of the mortgaged thresher and tractor.

Upon learning this, appellants filed their  action on July 31, 1954 for annulment  of the sale on the alleged ground of lack of consideration, it being alleged that the P20,000.00 mentioned  in the deed of sale had not in fact been paid. The defendant Emperatriz Arce  did not appear or answer the complaint, for which reason the plaintiffs  petitioned and obtained  on August 27, 1954, an order  declaring her in default. .

After  reception of plaintiffs' evidence by the Clerk  of Court who was authorized for the  purpose, and the submission  of  the Clerk's  report to the  Court,  the  latter, observing that the deed of sale being  repudiated  was a public document duly notarized,  motu propio re-set the case for  further hearing citing the notary public to appear in court  for examination.

In the meantime,  the auction sale of the  mortgaged properties was set for December 6, 1954, and so on" December 2, 1954, appellants filed a separate action for injunction  (in Civil Case No. 1690 of the same court) for the purpose of enjoining  the provincial  sheriff  and defendant  Ballesteros  from  proceeding with the announced sale.  Upon the filing of a corresponding bond, the lower court issued a preliminary writ of injunction.   Defendant Ballesteros seasonally  filed answer  setting up  in her defense and counterclaim the same deed of sale  in favor  of Emperatriz  Arce  and the  chattel mortgage executed by the latter upon which  the  foreclosure proceeding  was predicated;  and prayed for  the  dismissal of  the  action instituted by the plaintiffs  against their daughter allegedly to defraud the creditors of the latter.

Later,  Ballesteros intervened in the annulment case (No. 1666), asserting her  interest  in the  subject  matter  in virtue of the chattel mortgage in her favor.

After  trial, both cases were submitted upon the same evidence  introduced in Civil Case  No. 1666  which  consisted,  on the  part  of the plaintiffs-appellants, solely  in their own uncorroborated testimony  to the effect that they were  the owners  of  the  rice  thresher;  that Roque de Jesus had no right or interest  therein; that Severo Arce did not  remember having  signed the deed on  September 3, 1953,  nor  had he seen notary public  Artemio Marañon and the  latter's wife on the same day; that he (Severo) had not  received the  P20,000.00 mentioned in the document; and that they learned of the said sale  only when the Sheriff came to get  the rice thresher.  They further declared that the tractor included in the sale belonged to their son Recto Arce,[2]

The notary public and his wife, who acted as a witness to the deed of sale, both testified and  attested to the due execution thereof.   Appellee  Ballesteros also  testified detailing  the circumstances attending the granting of the loan  and the execution of the  chattel mortgage  in her favorr presenting in corroboration, the deed, of  sale in favor of Seyero Arce and Roque de Jesus concerning the rice thresher; the questioned  deed of sale of the same and the tractor to Emperatriz Arce; the first mortgage  executed  by Emperatriz in favor of the previous mortgagee, its  cancellation and the  subsequent chattel  mortgage in her  (Ballesteros) own favor,  all  of which are  public documents and, except  the first  deed of sale  to  Severo and Roque,  duly registered in the corresponding Registers of Deeds.

Upon this evidence, the lower court, as heretofore stated, rendered its decisions dismissing both complaints.  Hence, these appeals. 

Appellants  in this instance charge  the lower court,-of having  abused its discretion in re-setting  or re-hearing the case motu propio without lifting its previous, order declaring defendant Emperatriz  Arce in default and without  giving  her an  opportunity  to  be  heard;  in  denying their motion  for  new trial  and, consequently, upholding the validity of the disputed deed of sale.  There is no merit in this contention. 

It  is  elementary that  trial courts, before  rendering judgment, have  full control of the  proceedings  before them and,  as judges of  Courts of  First Instance are judges of both fact  and law,  if after hearing all the  evidence adduced by the attorneys, the court is not satisfied, he may, in the exercise of his sound discretion, on his own motion and in furtherance of justice call additional witnessed or recall some of  the same witnesses, for the purpose of questioning them himself in  order to satisfy his mind with, reference to particular facts or issues involved in the case.[3]  This is more so where the  defendant is in default and not in a, position  to controvert or scrutinize the evidence of the plaintiff.  And the opening of a case for the reception  of further  evidence, before any judgment has been entered therein, is not the granting of a new trial as  would require a formal motion by any of the parties. [4]

 On the other hand the evidence appellants desire to introduce in the new trial requested by  them after rendition of the judgment, is an admission by Emperatriz Arce that the contract was actually  simulated and  without  consideration, as appearing in the  affidavit dated November 5, 1955  which was  attached to plaintiffs' motion  for new trial.  The trial court acted correctly in denying the motion, for certainly this kind of evidence cannot  be  considered as newly discovered under  Rule 37 of the. Rules of Court.  For  purposes  of securing a  new trial, evidence may be considered newly discovered only if it satisfies the following requisites: (1)  that  such evidence has  been discovered after trial;  (2)  that  it could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (3)  that if presented, It would probably  alter the  result  (1  Moran's Comments on the Rules of Court, pp. 510-511, 1957 ed., citing Bersabal vs. Bernal, 13 Phil., 463).

 It cannot rightly be claimed in  the instant cases that appellants obtained knowledge of  the information Emperatriz Arce intended to give at the new trial, i.e., the contract's lack of consideration, only after, the original hearing or only when such affidavit was executed.  Precisely, the action for annulment was based on that ground.  Logically, appellants should know, and in  fact  it was so alleged in the complaint,  that Emperatriz, in whose favor the contract was  drawn, herself  caused or at least  was aware of such deficiency.  To sustain their claim, therefore, they should have presented Emperatriz Arce during the hearing to testify on this point or obtained an admission from her  under the Rules.

Appellants, however, claim that as the defendant in  that case did  not file an answer, they were not in a position to know what  averments of the complaint were admitted or would  be admitted by the said defendant.  This contention is beside the point and  does not  justify their  dispensing with the basic available evidence  in support of their  allegation.  The defendant's failure to file an answer or her having been declared in default does not necessarily insure the plaintiff's obtaining the remedy prayed-for in the complaint; it is also essential for said plaintiffs  to  adduce evidence  in support of their contentions (Sideco vs. Sande, 91 Phil., 159.)

Similarly,  it cannot be argued that, as the defendant in the annulment case, it would be difficult if not impossible for appellants to secure the testimony  of Emperatriz Arce to sustain their  (appellants) case.   The  hostility of  a witness does not exempt the party that should have offered his (the  witness)  testimony from complying with  the requirements of Rule 37.   The circumstances that a  person, known to be hostile to the movant, has decided after trial to break his silence and  put an end  to his hostility, did not make the testimony of such witness "newly discovered" for the  reason that "the failure of  applicant to inqure what a person  supposed to have knowledge of a matter in controversy knew  about  it or to call or examine him as a witness is  not .excused ordinarily by  the fact  that their relations were unfriendly, or that the  witness was believed to be hostile".   (Moran's Comments on  the Rules of Court, p. 511, 1957 ed.; Tek (Joan vs. Azores, 76 Phil., 363.)  The facts to be testified to by defendant, which were existing  before and during  the trial, and which plaintiffs-appellants could  have presented at the hearing, cannot  be  considered  newly discovered  evidence.   The court a quo, therefore, acted correctly in denying the motion for new trial and, in accordance with the evidence obtaining  in the case,  in sustaining  the validity of the sale.

Appellants, likewise, urge the annulment of the deed of sale, at least insofar as ½ of the rice thresher is  concerned, on  the allegation that it being a conjugal property and appellant  Anastacia Feria not having  consented to the sale, said contract is null and void as far as her interest is affected.  Suffice it  to note that other than appellants' declarations, the  records disclose no evidence to support this contention.  Contrarily, the intervenor's Exhibit 1, which was duly admitted by appellants, shows that the aforementioned rice thresher was purchased  by Severo Arce, married  to Anastacia  Feria, and Roque  de Jesus, married to Mercedes Arce, from Marcial Feria  for  the sum of P10,000.00 on December 15,  1948, which document even belies their contention that Roque has no interest or right therein.  Under these circumstances, the  ruling of the lower court must perforce be upheld.

In  view  of the conclusions thus arrived at, there  is no need to pass upon the other questions raised by appellants.  Wherefore, the decisions appealed from are hereby affirmed,  with costs  against appellants  in  both cases.   So ordered.

Paras, C. J., Bengzon,  Padilla, Montemayor, Bautista Angela, Endencia, and Gutierrez David, JJ., concur.

[1] Emperatriz Arce previously obtained a loan of P7,000.00 from another individual also upon the strength of this deed of sale, and secured by a chattel mortgage of the same thresher and tractor, but which prior loan was paid from the P10,000.00 obtained from Ballesteros (Exhs.  5 & 6)

[2] Recto Arce, however, was never made a party nor did he intervene in any of these two cases.

[3] U.S. vs. Cinco, 8 Phil, 388; U.S. vs. Base, et al., 9 Phil., 48,

[4] U.S. vs. Vizquera, et al., 4 Phil., 380.