G.R. No.

L-36637 July 14, 1978

GENEROSO MENDOZA, substituted by his wife and administratrix
DIEGA DE LEON VDA. DE MENDOZA,petitioner,
vs.
THE HON. COURT OF APPEALS, DANIEL GOLE CRUZ and
DOLORES MENDOZA, respondents.
Demetrio B. Encarnacion & Carlos J. Antiporda for petitioner.
Norberto S. Gonzalez for private respondents.

SANTOS, J.:
This petition for review by certiorari seeks the reversal of the decision
of the Court of Appeals * dated February 27, 1973 in CA-G.R. No.
46581-R entitled "Generoso Mendoza, applicants", applicant-appellee
vs. Daniel Gole Cruz, et al., movant, which upheld the registration in
the names of herein private respondents, purchasers of the
landholdings subject matter of an application for registration,
notwithstanding that they were not parties in the original registration
proceedings.
Relevant antecedent facts follow. On May 15, 1964, Generoso
Mendoza, herein petitioner, 1 filed with the Court of First Instance of
Bulacan an application for the registration of two parcels of land, with a
residential house thereon, situated in the Poblacion of Sta. Maria
Bulacan. A notice was issued on December 3, 1964 setting the date of
initial hearing on June 18, 1965. Said notice was duly published,
posted and served but nobody appeared nor filed an answer or
opposition within the period allowed for that purpose. Consequently,
the registration court entered on July 6, 1965, an order of general
default and allowed the applicant to present his evidence ex-parte. 2
From the evidence presented by applicant Generoso Mendoza, herein
petitioner, it was proven that he and his wife, Diega de Leon, were the
owners of the parcels of land subject of the application but the same
were sold by them, during the pendency of the case, to the spouses
Daniel Gole Cruz and Dolores Mendoza, herein private respondents,
subject to the vendors' usufructuary rights. The instrument embodying
such sale was presented as Exhibit 1. On the basis of such evidence,
the registration court rendered a decision on July 21, 1965, ordering
the registration of the two parcels of land in the names of the vendees,
Daniel Gole Cruz and Dolores Mendoza, subject to the usufructuary
rights of the vendors, Generoso Mendoza and Diega de Leon. On the
same day, a copy of said decision was received by Generoso
Mendoza. 3
On November 5, 1965. after the decision had become final, the
applicant-vendor, Generoso Mendoza, filed a motion for the issuance
of the decree. On May 16, 1967, Decree No. 114454 was issued
confirming the title to the land of vendees Daniel Gole Cruz and
Dolores Mendoza, and ordering the registration of the same in their
names, subject to the usufructuary rights of the vendors.
Consequently, Original Certificate of Title No. 0-3787 was issued to
spouses Daniel Gole Cruz and Dolores Mendoza. 4
On April 16, 1968, Generoso Mendoza filed an urgent petition for
reconsideration praying that the decision dated July 21, 1965 and the
decree issued pursuant thereto dated May 16, 1967 be set aside and
that Original Certificate of Title No. 03787 be cancelled, on the ground
that the vendees, the registered owners, had failed to pay the
purchase price of the lands. 5
The registration court considered said urgent petition for
reconsideration as a petition for review of the decree and issued an
order dated September 3, 1968 setting aside its decision, its order for
the issuance of the decree, and the decree of registration, on the
ground that it did not have jurisdiction to order the registration of the
lands in the names of the vendees, who were not parties to the
application for registration. Moreover, said court ordered the
cancellation of O.C.T. No. 03787 and directed the registration of the
lands in the names of spouses, Generoso Mendoza and Diega de
Leon, subject to the rights of vendees, Daniel Gole Cruz and Dolores
Mendoza, stated in the deed of sale. 6
On September 17, 1968, spouses Cruz and Mendoza moved to
reconsider the order, but their motion was denied on October 17, 1968.
On December 19, 1968, said spouses appealed from the order dated
September 3, 1968. On March 11, 1969, Mendoza filed a motion to
dismiss the appeal and on April 10, 1969, the registration court
dismissed the appeal. 7
The spouses Cruz and Mendoza then filed with the Court of Appeals a
special civil action for certiorari, mandamus and prohibition, which was

docketed as CA-G.R. No. 43250-R. The Court of Appeals on January

5, 1970, ordered the registration court to give due course to the
appeal. The registration court approved the Record on Appeal and
forwarded the same to the Court of Appeals together with all the
evidence adduced during the trial.8
Acting on said appeal which was docketed as CA-G.R. No. 46581- R,
the Court of Appeals rendered on February 27, 1973, the decision,
subject matter of the present petition for review. It set aside the order
of the land registration court of September 3, 1968 which set aside its
decision of July 21, 1965 and the decree issued pursuant thereto. It
also denied applicant Mendoza's petition for reconsideration dated
April 15 (filed April 16), 1968, which was considered as a petition for
review of the decree.
Hence, this Petition for Review which alleges that the respondent
Court of Appeals erred
1. ... IN HOLDING THAT THE APPELLEE
HIMSELF CAUSED THE REGISTRATION OF
THE TITLE TO THE LAND IN QUESTION IN THE
NAME OF THE APPELLANTS.
2. ... IN HOLDING THAT ALTHOUGH THERE
WAS NO FORMAL AMENDMENT OF THE
APPLICATION FOR REGISTRATION
SUBSTITUTING THE VENDEES FOR THE
APPLICANT, THE REGISTRATION COURT
COULD LEGALLY ORDER THE TITLE ISSUED
IN THE NAME OF VENDEES BECAUSE THE
APPLICANT HIMSELF PROVIDED THE BASIS
FOR ADJUDICATION; AND THAT THE
APPLICATION COULD HAVE BEEN AMENDED
TO CONFORM TO THE EVIDENCE ALREADY
ADVANCED BY SUBSTITUTING THE VENDEES
FOR THE SAID APPLICANT.
3. ... IN HOLDING THAT THE MOTION FOR
RECONSIDERATION WAS NOT BASED ON
FRAUD PERPETRATED ON THE APPELLEE BY
THE PRIVATE RESPONDENT. 9
The foregoing assigned errors question the decision of the respondent
Court of Appeals ordering the registration of the landholdings subject
matter of the application for registration in the names of herein private
respondents who are the purchasers of the landholdings,
notwithstanding that they were not parties in the original registration
proceedings before the lower court.
In the first assignment of error, the petitioner assails the Court of
Appeals' holding that he himself caused the registration of the land in
question in the name of the vendees, the herein private respondents.
But whether or not the petitioner did in fact cause the registration of the
land in favor of private respondents is a question of fact which cannot
properly be raised in the present petition for review inasmuch as
Section 2, Rule 45 of the Rules of Court expressly provides that in an
appeal from the Court of Appeals to this Court, only questions of law
my be raised. 10 Thus, the finding of the Court of Appeals that petitioner
caused the registration of the land in favor of the private respondents
cannot now be raised in this Appeal much less disturbed by this Court.
However, by petitioner's insistence that he could not be deemed to
have caused the registration of the land in the names of private
respondents as he never testified in court having sold the same to said
Private respondents 11he, in effect, invokes the exception to the abovestated rule of conclusiveness of the Court of Appeals' findings of fact,
namely: that the Court of Appeals' finding is grounded entirely on
surmises or conjectures and has no basis in the evidence on
record. 12 Consequently, We are tasked with the e petition of the
records of the case to determine the veracity of petitioner's claim that
he never testified in court as having sold the property to the herein
private respondents. And it must here be emphasized that should the
records confirm such claim of the petitioner, the Court of Appeals'
holding that he caused the registration of the land in the names of
private respondents would have no basis in the evidence and should,
thus, be reversed.
A careful study and consideration of the records of the case, however,
belie petitioner's claim that he did not testify relative to the
aforementioned deed of sale. The transcript of the stenographic notes
of the hearing on the application for registration held on July 6, 1965 all
too clearly show that petitioner and his wife testified before the deputed
commissioner, Mr. Ricardo Cruz, that they sold the property sought to
be registered to the private respondents. Thus, the records show that
petitioner testified as follows:
xxx xxx xxx

Atty. Valentin:

Q. Why do you know the same?

Q. You said that you are the owners of these

two parcels of land subject matter of this
litigation, after you have caused the filing of
this application, was there any transaction
that took place with respect to the same?
A. Yes sir, we have sold these two parcels
of land to Daniel Gole Cruz and his wife
Dolores Mendoza.
Q. Showing to you this document which is
an original carbon copy of a deed of sale
written in Tagalog and executed and ratified
on October 15, 1964, would you kindly tell
this Honorable Court which is Exhibit I, will
you tell this Honorable Court if you know
this Exhibit I? (sic)
A. Yes, sir, that is the carbon copy of the
deed of sale I have just
mentioned. 13 (Emphasis supplied)
xxx xxx xxx
Similarly, applicant-petitioner's wife, Diega de Leon, testified as follows:
xxx xxx xxx
ATTY. VALENTIN:
Q. Do you know the two
parcels of land subject matter
of this registration
proceedings?
A. Yes, sir.
xxx xxx xxx
Q. Do you know who are now
in possession of these
properties.
A. We, I, my husband and
Daniel Gole Cruz and and his
wife, Dolores Mendoza are in
actual possession of the
same.
Q. Why are Daniel Gole Cruz
and Dolores Mendoza copossessing with you these
two parcels of land?
A. Because on October 15,
1964, we sold this property to
them with one of the
conditions that until my
husband and myself or
anyone of us die, we will live
with them.14 (Emphasis
supplied)
xxx xxx xxx
Furthermore, applicant-petitioner even presented the private
respondent Daniel Gole Cruz to confirm the aforesaid sale of the
subject property. Thus, Cruz testified as follows:
xxx xxx xxx
ATTY. VALENTIN:
xxx xxx xxx
Q. Do you know the property
covered by this registration
proceedings?
A. Yes sir.

A. Because we have been living in said place since I got

married and besides, on October 15, 1964, the said two
parcels of land were sold to us by the herein applicant and
his wife.
Q. Showing to you this Exhibit 1, would you Identify and tell
this Honorable Court if you know the same?
A. Yes sir, Exhibit I is the carbon original of the deed of sale
executed in our favor. 15(Emphasis supplied).
xxx xxx xxx
Finally, even the registration court itself did not believe applicantpetitioner's claim that he did not previously cause the registration of the
subject property in the names of private respondents. For, while it
granted applicant-petitioner's petition for review of the decree and
ordered the re-registration of the land in his name, the Court,
nevertheless, expressly declared in the very same order that:
Generoso Mendoza was the original applicant in
this case. At the hearing, he himself produced
evidence that on October 15,1964 he and his wife
sold the Land in favor of the spouses Daniel Gole
Cruz and Dolores Mendoza for the amount of
P6,000.00 payable in installments (Exh.
1). ... 16(Emphasis supplied).
In view of the foregoing, it is crystal clear that the respondent Court of
Appeals did not incur any error when it held that applicant. Petitioner
himself caused the registration of the land in the names of private
respondents.
Petitioner, however, insists in his second assignment of error, that the
registration court could not legally order the registration of the land in
the names of the vendees-respondents, who were neither the
applicants nor the oppositors in the registration case below. Petitioner
overlooks Section 29 of the Land Registration Act which expressly
authorizes the registration of the land subject matter of a registration
proceeding in the name of the buyer or of the person to whom the land
has been conveyed by an instrument executed during the interval of
time between the filing of the application for registration and the
issuance of the decree of title, thus
SEC. 29. After the filing of the application and
before the issuance of the decree of title by the
Chief of the General Land Registration Office, the
land therein described may be dealt with and
instruments relating thereto shall be recorded in
the office of the register of said at any time before
issuance of the decree of title, in the same manner
as if no application had been made. The interested
Party may, however, present such instruments to
the Court of First Instance instead of presenting
them to the office of the register of deeds, together
with a motion that the same be considered in
relation with the application, and the court after
notice to the parties, shall order such land
registered subject to the ecumbrance created by a
said instruments, or order the decree of
registration issued in the name of the buyer or of
the person to whom the property has been
conveyed by said instruments. ... (Emphasis
supplied).
It is clear from the above-quoted provision that the law expressly
allows the land subject matter of an application for registration to be
"dealt with", i.e., to be disposed of or encumbered during the interval of
time between the filing of the application and the issuance of the
decree of title, and to have the instruments embodying such disposition
or encumbrance presented to the registration court by the ,interested
party" for the court to either "order such land registered subject to the
encumbrance created by said instruments, or order the decree of
registration issued in the name of the buyer or of the person to whom
the property has been conveyed by said instruments. 17 The law does
not require that the application for registration be amended by
substituting the "buyer" or the person to whom the property has been
conveyed" for the applicant. Neither does it require that the "buyer" or
the "person to whom the property has been conveyed" be a party to
the case. He may thus be a total stranger to the land registration
proceedings. The only requirements of the law are: (1) that the
instrument be presented to the court by the interested party together
with a motion that the same be considered in relation with the
application; and (2) that prior notice be given to the parties to the case.
And the peculiar facts and circumstances obtaining in this case show
that these requirements have been complied with.

As heretofore stated, the instrument embodying the sale of the subject

property by the petitioner to the private respondents was duly
presented to the registration court for consideration. That the purpose
was to have the land registered in the names of private respondents
subject to the usufructuary rights of petitioner and his wife is explicit in
the following facts and circumstances. Firstly, it was the petitioner
himself, the applicant in the registration proceedings, who presented
the deed of sale (Exh. I) to the court and testified before the same that
he did sell the land to the private respondents. This was done by him
despite the fact that he could easily have the land registered in his
name as an order of general default had been issued and the
hearing on the application for registration had been conducted EXPARTE. Secondly, as if to fully convince the court of the fact of sale,
petitioner presented his wife, Diega de Leon, and private respondent,
Daniel GolE Cruz, to confirm the said sale of the land and the
stipulated usufructuary rights. Finally, the petitioner even filed the
motion for the issuance of the decree of confirmation of title after
having received the decision of the court ordering the registration of
the title to the land in the names of vendees-respondents, subject to
the stipulated usufructuary rights thereby signifying his full assent to
the same.
It is true that no written motion was filed seeking the consideration of
the deed of sale in relation with the application for registration. But the
law does not require that the motion accompanying the presentation of
the instrument be in writing. And the above- enumerated acts of the
applicant-petitioner and the circumstances surrounding the same
accept of no interpretation than that the applicant-petitioner did in fact
move the court to order the registration of the title to the land in the
names of vendees- respondents, subject only to the stipulated
usufructuary rights of the petitioner and his wife. There was, therefore,
sufficient compliance with the first requirement of the law.
Anent the second requirement of prior notice to the parties, the
relevant fact to be considered is that an order of general default had
been issued prior to the presentation of the deed of sale by the
applicant-petitioner, since nobody filed an opposition to the application
for registration. Thus, the only person who should have been entitled to
a notice from the court was the applicant-petitioner himself, as the only
party with a legal standing in the proceedings. In view thereof, no legal
objection to the court's jurisdiction to order the registration of the lands
in the names of vendees-respondents may be interposed on the
ground of non-compliance with the requirement of prior notice to the
parties.
Since there was sufficient compliance with the aforestated
requirements of the law, respondent Court of Appeals did not,
therefore, err in holding that the lower court had jurisdiction to order the
registration of the lands in the names of vendees-respondents.
The petitioner, finally, contends in a desperate effort to justify the
validity of the appealed order of September 3, 1968 that respondent
Court of Appeals erred in holding that he was not the victim of fraud
perpetrated by the vendees, private respondents, herein, who allegedly
failed to pay the purchase price of the landholdings. This is also
without merit. Section 38 of the Land Registration Act provides as
follows
SEC. 38. If the court after hearing finds that the
applicant or adverse claimant has title as stated in
his application or adverse claim and proper for
registration, a decree of confirmation and
registration shall be entered. ... Such decree shall
not be opened by reason of the absence, infancy,
or other disability of any person affected thereby,
nor by any proceeding in any court for reversing
judgments or decree: subject, however, to the
right of any person deprived of land or of any
estate or interest therein by decree of registration
obtained by fraud to file in the competent Court of
First Instance a petition for review within one year
after entry of the decree provided no innocent
purchaser for value has acquired an interest. ...
(Emphasis supplied.)
It is clear from the foregoing provision that the only ground upon which
a decree of registration may be set aside is fraud in obtaining the
same. In the instant case, applicant-petitioner cannot complain of fraud
in obtaining the decree of registration for as heretofore stated, it was
solely upon his testimony and proof that the lots were ordered
registered in the names of the vendees-respondents and it was also
upon his motion that the decree of registration was issued by the lower
court. What the applicant-petitioner actually invokes in this case is not
fraud in obtaining the decree of registration but the alleged failure of
the vendees-respondents to pay the purchase price of the
landholdings. But as correctly held by respondent Court of Appeals:
(B)reach of contract is not a ground for a petition
for a review. And the registration court has no
jurisdiction to decide the contentious issue of

whether or not the deed of sale, Exh. "1", should

be rescinded for the alleged failure of the vendees
to pay the purchase price. The issue on the
breach of contract has to be letigated in the
ordinary court. 18
In view of all the foregoing, We hold that the Honorable Court of
Appeals did not commit any error in setting aside the order of the lower
court dated September 13, 1968, and thus allowing the registration of
the lots of the names of the vedees, herein private respondents.
WHEREFORE, the decision of the Court of Appeals dated February
17, 1973 is hereby affirmed with costs against petitioner.
Fernando (Chairman), Antonio and Guererro, * JJ., concur.

Separate Opinions

BARREDO, J., concuring:

I concur in the judgment and the main opinion in this case. After all, as
I view the whole controversy here, whether the title of the land in
qustion be in the name of the Mendoza or Cruz spouses is of
secondary importance, since the title issued to the latter would anyway
carry the appropriate annotations protective of the rights of the former
under the deed of sale and vice-versa. Inasmuch as the factuality of
the sale to the Cruz spouses is beyond dispute and it is evidenced by a
public instrument, it is unquestionable that the title to the property,
which is real property, passed to them upon the execution of the deed
of sale and delivery thereof to them. In fact, in recognition of such
transfer of title it is expressly stipulated in the deed that the vendors
would retain possession and usufruct of the properties sold, as long as
the total price has not been paid. Thus, the only right that has
remained with the Mendozas is to exact complieance with such
conditions of the sale.
The alleged failure of the vendees to pay a single centavo of the price
does not, to my mind, constitute fraud in securing the registration of the
property in their names. Worse, the Cruz spouses were not even
parties to the registration proceeding they were not represented
therein by anybody; it was the court that caused such registration at
the instance, according to the evidence, of the petitioner himself. And
on this score, I am not ready to assume that Generoso Mendoza did
not actually testify, even as I feel that anyway his recorded testimony
denied by him to have been actually given is hardly
indispensable, considering it merely confirmed what is alleged in the
application, qualified by the deed of sale in favor of the Cruz spouses,
the authenticity and due execution of which are, as I have already
stated, beyond dispute. The reopening of the decree of registration by
Judge de Borja had no legal basis.
As aptly held in the main opinion, the mere presentation to the court of
that deed of sale, in one way or another, justified the issuance of the
title to the respondent, subject to the annotated rights of the petitioner,
in connection with which, if it be true that the stipulated price has not
been paid even partially, I might suggest that all that petitioner or his
successor or heirs should do is to file a sworn manifestation with the
register of deeds to such effect, so that together with the provisions of
the deed of sale, the fact of such alleged non-payment may be known
to the whole world, so to speak, for his protection. That protection is as
good as if the title were in his name.
In short, I believe there is not much real substance in the controversy
before Us. It should be disposed of in the simplest manner possible.
For may part, I am more inclined to leave things as they are, rather
than unnecessarily reverse the decision of the Court of Appeals, since
for all practical purposes, it would not make any difference in whose
name the title in question is issued. The respective rights of the parties
would remain the same either way.
AQUINO, J., dissenting:
It is not lawful and just that the two lots in litigation should be registered
in the names of the spouses Daniel Gole Cruz and Dolores Mendoza.
The registration in their names is not proper because they did not
intervene in the land registration proceeding; they did not defray the
expenses thereof, and they have not paid to Generoso Mendoza, or
his widow, Diega de Leon, the sum of P6.000 as the price of the two
lots. The antecedents of Generoso Mendoza's appeal are as follows:

On May 15, 1964 Generoso Mendoza filed with the Court of First
Instance of Bulacan an application for the registration of two residential
lots, with a total area of 258 square meters, located in the poblacion of
Sta. Maria, Bulacan. He prayed that his title thereto be confirmed and
registered.
On October 15, 1964, or during the pendency of the proceeding,
Generoso Mendoza and his wife Diega de Leon, both seventy-five
years old, conditionally sold to the Cruz spouses, 25 and 26 years old,
the said residential lots for P6,000 as follows: P1,000 upon the signing
of the deed and P1,000 annually until the balance of P5,000 is paid.
Among the conditions of the sale is that as long as the total price had
not been paid, the vendors, or the survivor in case one of them died,
would retain the possession and usufruct of the two lots and the house
thereon. Upon full payment of the price, the vendees or either one of
them, would take care of the vendors, or the survivor, as if the latter
were the parents of the vendees.
At the hearing, the deed of sale was presented in evidence. Judge
Juan de Borja in a decision dated July 21, 1965, ordered the
registration of the two lots in the names of the spouses Daniel Gole
Cruz and Dolores Mendoza "subject to the usufructuary rights of the
spouses Generoso Mendoza and Diega de Leon". Lorenzo C. Valentin,
who notarized the deed of sale, represented the Mendoza spouses in
the land registration proceeding.
On May 16, 1967, a decree of registration was issued. Original
Certificate of Title No. 0-3787 was issued to the Cruz spouses. On April
16, 1968, or within one year from the issuance of the decree,
Generoso Mendoza, through another lawyer, filed a motion to set aside
the decree and title on the ground that the Cruz spouses had not paid
a single centavo of the price and, "hence, they have dirty hands". A
copy of that motion was personally served upon the Cruz spouses.
Without denying that they had not paid the price, they opposed the
motion on the ground that the decision, which had long become final,
could no longer be set aside. Generoso Mendoza, in his reply, argued
that the review of the decree was sought on the ground of fraud and
that the deed of sale had become void for non-payment of the price.
At the hearing of the said motion on May 15, 1968, the old man,
Generoso Mendoza, was placed on the witness stand. He declared
that during the hearing of his application for registration he was in the
courtroom but that he did not testify; that only his lawyer, Atty. Valentin
and the stenographer were present at the hearing, and that he did not
give his consent to the issuance of the title in the name of Daniel Gole
Cruz.
Judge De Borja, in his order of September 3, 1968, treated the motion
as a petition for review under section 38 of Act No. 496. Realizing that
he might have perpetrated an injustice in his decision, when he
ordered the registration of the two lots in the names of the Cruz
spouses, Judge De Borja set aside that decision and the decree of
registration and ordered that the two lots be registered in the name of
Generoso Mendoza, "subject to the rights of the spouses Daniel Gole
Cruz and Dolores Mendoza" under the aforementioned deed of sale.
The Cruz spouses filed a motion for reconsideration wherein they
alleged that they had already paid P3,000 out of the price of P6,000 (p,
42, Record on Appeal). Judge De Borja denied the motion. The Cruz
spouses appealed. Judge De Borja did not give due course to their
appeal. He issued a writ of execution requiring the register of deeds to
cancel the title issued to the Cruz spouses.
However, the Court of Appeals in the action for certiorari, prohibition
and mandamus filed by the Cruz spouses, ordered the lower court to
give due course to their appeal (Cruz vs. De Borja, CA-G. R. No.
43250-R, January 5, 1970).
Later, the Court of Appeals in adjudicating the appeal upheld the
registration of the lots in the names of the Cruz spouses and reversed
Judge De Borja's order for the registration of the lots in the name of
Generoso Mendoza (De Leon vs. Gole Cruz, CA-G. R. No. 46581-R,
February 27, 1973, per Fernandez, J., Concepcion Jr. and
Gancayco, JJ., concurring). Diega de Leon, in substitution for her
deceased husband, Generoso Mendoza, appealed to this Court.
The Court of Appeals assumed that at the hearing of Generoso Miss.
Mendoza's application on July 6, 1965, the Mendoza spouses testified
that they sold the two lots to Daniel Gole Cruz. According to the Cruz
spouses, Daniel Gole Cruz supposedly testified also at the hearing
on July 17, 1965 (pp. 83-84, Record on Appeal).
However, as already noted, Generoso Mendoza at the hearing on May
15, 1968 of his motion to set aside the decree and the title testified that
he was never interrogated, meaning that he did not take the witness
stand at the hearing of his application for registration, and that only his

counsel, Atty. Valentin, and the court stenographer were present at the
hearing.
We have, therefore, the conflicting versions of the parties as to what
transpired at the hearing before the commissioner of Generoso
Mendoza's application for registration and as to whether there has
been any payment of the price for the sale. Generoso Mendoza
himself, by testifying that he never took the witness stand at the
hearing of his application, destroyed the basis for the confirmation of
his alleged title to the land or for its registration in the names of the
Cruz spouses.
In my opinion the ends of justice would be served by setting aside all
the proceedings in the lower court and holding a rehearing. The Cruz
spouses should file a counter-petition in the trial court for the
registration of the two lots in their names on the basis of the deed of
sale. The trial court should ascertain whether the price of the sale had
been paid by the this time. (See Vda. de Catindig vs. Roque, L-25777,
November 26, 1976, 74 SCRA 83).
At this juncture, it may be stressed that in the deed of sale (which was
executed after the land registration proceeding had been commenced),
it was stipulated that, since the two lots were unregistered, the parties
agreed that the deed would be registered in the registry for
unregistered land as provided for in Act No. 3344.
Had the parties intended that the vendees, the Cruz spouses, would be
substituted as applicants in the land registration proceeding, it could
easily have been so stipulated in the deed of sale. But no such
stipulation was made. And no move was made by the vendees to have
themselves substituted as applicants maybe because the sale was
conditional and they had allegedly not paid any part of the price.
Neither did the vendor, Generoso Mendoza, the applicant in the land
registration proceeding, amend his application after the deed had been
signed, by praying that the two lots be registered in the names of the
Cruz spouses. He did not do so because, as already noted, the
stipulation in the deed of sale was that the deed would be registered in
the registry for unregistered land.
Evidently, the registration of the two lots in the names of the Cruz
spouses was the Idea of the notary Valentin who acted as counsel of
Generoso Mendoza in the land registration proceeding. He did not
bother to get the written consent of the septuagenarian Generoso
Mendoza, to the registration of the two lots in the names of the Cruz
spouses.
The Cruz spouses never contradicted nor refuted the declaration in
court of Generoso Mendoza at the hearing of his motion to set aside
the decree and the title that he never testified during the hearing of his
application and that it was only Atty. Valentin who appeared before the
stenographer during that hearing.
Any practising lawyer who has appeared in hearings before a
commissioner deputed by the land registration court to hear
uncontested applications for registration knows that in some instances
the hearings are not conducted in a formal manner; that only the
applicant's lawyer and the stenographer are usually present; that the
deputy clerk of court, as commissioner, or the hearing officer does not
even bother to hear the applicant's testimony, and that the
stenographer and the applicant's lawyer may fabricate the testimonies
that appear in the transcript, which usually indicates that the applicant
and his witnesses testified when in truth they did not testify at all. Such
reprehensible practice should be condemned. Trial courts should
exercise close supervision over the hearings of uncontested land
registration cases so as not to make a farce or mockery of the hearing.
I vote for the reversal of the decision of the Court of Appeals and the
nullification of all the proceedings in the lower court and for the holding
of a new hearing on the application for registration of Generoso
Mendoza and the counter-petition of the, Cruz spouses as aboveindicated.

Separate Opinions
BARREDO, J., concuring:
I concur in the judgment and the main opinion in this case. After all, as
I view the whole controversy here, whether the title of the land in
qustion be in the name of the Mendoza or Cruz spouses is of
secondary importance, since the title issued to the latter would anyway
carry the appropriate annotations protective of the rights of the former
under the deed of sale and vice-versa. Inasmuch as the factuality of
the sale to the Cruz spouses is beyond dispute and it is evidenced by a

public instrument, it is unquestionable that the title to the property,

which is real property, passed to them upon the execution of the deed
of sale and delivery thereof to them. In fact, in recognition of such
transfer of title it is expressly stipulated in the deed that the vendors
would retain possession and usufruct of the properties sold, as long as
the total price has not been paid. Thus, the only right that has
remained with the Mendozas is to exact complieance with such
conditions of the sale.
The alleged failure of the vendees to pay a single centavo of the price
does not, to my mind, constitute fraud in securing the registration of the
property in their names. Worse, the Cruz spouses were not even
parties to the registration proceeding they were not represented
therein by anybody; it was the court that caused such registration at
the instance, according to the evidence, of the petitioner himself. And
on this score, I am not ready to assume that Generoso Mendoza did
not actually testify, even as I feel that anyway his recorded testimony
denied by him to have been actually given is hardly
indispensable, considering it merely confirmed what is alleged in the
application, qualified by the deed of sale in favor of the Cruz spouses,
the authenticity and due execution of which are, as I have already
stated, beyond dispute. The reopening of the decree of registration by
Judge de Borja had no legal basis.
As aptly held in the main opinion, the mere presentation to the court of
that deed of sale, in one way or another, justified the issuance of the
title to the respondent, subject to the annotated rights of the petitioner,
in connection with which, if it be true that the stipulated price has not
been paid even partially, I might suggest that all that petitioner or his
successor or heirs should do is to file a sworn manifestation with the
register of deeds to such effect, so that together with the provisions of
the deed of sale, the fact of such alleged non-payment may be known
to the whole world, so to speak, for his protection. That protection is as
good as if the title were in his name.
In short, I believe there is not much real substance in the controversy
before Us. It should be disposed of in the simplest manner possible.
For may part, I am more inclined to leave things as they are, rather
than unnecessarily reverse the decision of the Court of Appeals, since
for all practical purposes, it would not make any difference in whose
name the title in question is issued. The respective rights of the parties
would remain the same either way.

Without denying that they had not paid the price, they opposed the
motion on the ground that the decision, which had long become final,
could no longer be set aside. Generoso Mendoza, in his reply, argued
that the review of the decree was sought on the ground of fraud and
that the deed of sale had become void for non-payment of the price.
At the hearing of the said motion on May 15, 1968, the old man,
Generoso Mendoza, was placed on the witness stand. He declared
that during the hearing of his application for registration he was in the
courtroom but that he did not testify; that only his lawyer, Atty. Valentin
and the stenographer were present at the hearing, and that he did not
give his consent to the issuance of the title in the name of Daniel Gole
Cruz.
Judge De Borja, in his order of September 3, 1968, treated the motion
as a petition for review under section 38 of Act No. 496. Realizing that
he might have perpetrated an injustice in his decision, when he
ordered the registration of the two lots in the names of the Cruz
spouses, Judge De Borja set aside that decision and the decree of
registration and ordered that the two lots be registered in the name of
Generoso Mendoza, "subject to the rights of the spouses Daniel Gole
Cruz and Dolores Mendoza" under the aforementioned deed of sale.
The Cruz spouses filed a motion for reconsideration wherein they
alleged that they had already paid P3,000 out of the price of P6,000 (p,
42, Record on Appeal). Judge De Borja denied the motion. The Cruz
spouses appealed. Judge De Borja did not give due course to their
appeal. He issued a writ of execution requiring the register of deeds to
cancel the title issued to the Cruz spouses.
However, the Court of Appeals in the action for certiorari, prohibition
and mandamus filed by the Cruz spouses, ordered the lower court to
give due course to their appeal (Cruz vs. De Borja, CA-G. R. No.
43250-R, January 5, 1970).
Later, the Court of Appeals in adjudicating the appeal upheld the
registration of the lots in the names of the Cruz spouses and reversed
Judge De Borja's order for the registration of the lots in the name of
Generoso Mendoza (De Leon vs. Gole Cruz, CA-G. R. No. 46581-R,
February 27, 1973, per Fernandez, J., Concepcion Jr. and
Gancayco, JJ., concurring). Diega de Leon, in substitution for her
deceased husband, Generoso Mendoza, appealed to this Court.

AQUINO, J., dissenting:

It is not lawful and just that the two lots in litigation should be registered
in the names of the spouses Daniel Gole Cruz and Dolores Mendoza.
The registration in their names is not proper because they did not
intervene in the land registration proceeding; they did not defray the
expenses thereof, and they have not paid to Generoso Mendoza, or
his widow, Diega de Leon, the sum of P6.000 as the price of the two
lots. The antecedents of Generoso Mendoza's appeal are as follows:
On May 15, 1964 Generoso Mendoza filed with the Court of First
Instance of Bulacan an application for the registration of two residential
lots, with a total area of 258 square meters, located in the poblacion of
Sta. Maria, Bulacan. He prayed that his title thereto be confirmed and
registered.
On October 15, 1964, or during the pendency of the proceeding,
Generoso Mendoza and his wife Diega de Leon, both seventy-five
years old, conditionally sold to the Cruz spouses, 25 and 26 years old,
the said residential lots for P6,000 as follows: P1,000 upon the signing
of the deed and P1,000 annually until the balance of P5,000 is paid.
Among the conditions of the sale is that as long as the total price had
not been paid, the vendors, or the survivor in case one of them died,
would retain the possession and usufruct of the two lots and the house
thereon. Upon full payment of the price, the vendees or either one of
them, would take care of the vendors, or the survivor, as if the latter
were the parents of the vendees.
At the hearing, the deed of sale was presented in evidence. Judge
Juan de Borja in a decision dated July 21, 1965, ordered the
registration of the two lots in the names of the spouses Daniel Gole
Cruz and Dolores Mendoza "subject to the usufructuary rights of the
spouses Generoso Mendoza and Diega de Leon". Lorenzo C. Valentin,
who notarized the deed of sale, represented the Mendoza spouses in
the land registration proceeding.
On May 16, 1967, a decree of registration was issued. Original
Certificate of Title No. 0-3787 was issued to the Cruz spouses. On April
16, 1968, or within one year from the issuance of the decree,
Generoso Mendoza, through another lawyer, filed a motion to set aside
the decree and title on the ground that the Cruz spouses had not paid
a single centavo of the price and, "hence, they have dirty hands". A
copy of that motion was personally served upon the Cruz spouses.

The Court of Appeals assumed that at the hearing of Generoso Miss.

Mendoza's application on July 6, 1965, the Mendoza spouses testified
that they sold the two lots to Daniel Gole Cruz. According to the Cruz
spouses, Daniel Gole Cruz supposedly testified also at the hearing
on July 17, 1965 (pp. 83-84, Record on Appeal).
However, as already noted, Generoso Mendoza at the hearing on May
15, 1968 of his motion to set aside the decree and the title testified that
he was never interrogated, meaning that he did not take the witness
stand at the hearing of his application for registration, and that only his
counsel, Atty. Valentin, and the court stenographer were present at the
hearing.
We have, therefore, the conflicting versions of the parties as to what
transpired at the hearing before the commissioner of Generoso
Mendoza's application for registration and as to whether there has
been any payment of the price for the sale. Generoso Mendoza
himself, by testifying that he never took the witness stand at the
hearing of his application, destroyed the basis for the confirmation of
his alleged title to the land or for its registration in the names of the
Cruz spouses.
In my opinion the ends of justice would be served by setting aside all
the proceedings in the lower court and holding a rehearing. The Cruz
spouses should file a counter-petition in the trial court for the
registration of the two lots in their names on the basis of the deed of
sale. The trial court should ascertain whether the price of the sale had
been paid by the this time. (See Vda. de Catindig vs. Roque, L-25777,
November 26, 1976, 74 SCRA 83).
At this juncture, it may be stressed that in the deed of sale (which was
executed after the land registration proceeding had been commenced),
it was stipulated that, since the two lots were unregistered, the parties
agreed that the deed would be registered in the registry for
unregistered land as provided for in Act No. 3344.
Had the parties intended that the vendees, the Cruz spouses, would be
substituted as applicants in the land registration proceeding, it could
easily have been so stipulated in the deed of sale. But no such
stipulation was made. And no move was made by the vendees to have
themselves substituted as applicants maybe because the sale was
conditional and they had allegedly not paid any part of the price.
Neither did the vendor, Generoso Mendoza, the applicant in the land
registration proceeding, amend his application after the deed had been
signed, by praying that the two lots be registered in the names of the

Cruz spouses. He did not do so because, as already noted, the

stipulation in the deed of sale was that the deed would be registered in
the registry for unregistered land.
Evidently, the registration of the two lots in the names of the Cruz
spouses was the Idea of the notary Valentin who acted as counsel of
Generoso Mendoza in the land registration proceeding. He did not
bother to get the written consent of the septuagenarian Generoso
Mendoza, to the registration of the two lots in the names of the Cruz
spouses.
The Cruz spouses never contradicted nor refuted the declaration in
court of Generoso Mendoza at the hearing of his motion to set aside
the decree and the title that he never testified during the hearing of his
application and that it was only Atty. Valentin who appeared before the
stenographer during that hearing.
Any practising lawyer who has appeared in hearings before a
commissioner deputed by the land registration court to hear
uncontested applications for registration knows that in some instances
the hearings are not conducted in a formal manner; that only the
applicant's lawyer and the stenographer are usually present; that the
deputy clerk of court, as commissioner, or the hearing officer does not
even bother to hear the applicant's testimony, and that the
stenographer and the applicant's lawyer may fabricate the testimonies
that appear in the transcript, which usually indicates that the applicant
and his witnesses testified when in truth they did not testify at all. Such
reprehensible practice should be condemned. Trial courts should
exercise close supervision over the hearings of uncontested land
registration cases so as not to make a farce or mockery of the hearing.
I vote for the reversal of the decision of the Court of Appeals and the
nullification of all the proceedings in the lower court and for the holding
of a new hearing on the application for registration of Generoso
Mendoza and the counter-petition of the, Cruz spouses as aboveindicated.

[G.R. No. 102858. July 28, 1997]

THE DIRECTOR OF LANDS, petitioner, vs. COURT OF APPEALS

and TEODORO ABISTADO, substituted by MARGARITA,
MARISSA, MARIBEL, ARNOLD and MARY ANN, all
surnamed ABISTADO, respondents.
DECISION
PANGANIBAN, J.:

The Facts

On December 8, 1986, Private Respondent Teodoro Abistado

filed a petition for original registration of his title over 648 square
meters of land under Presidential Decree (PD) No. 1529.[5] The
application was docketed as Land Registration Case (LRC) No. 86 and
assigned to Branch 44 of the Regional Trial Court of Mamburao,
Occidental Mindoro.[6] However, during the pendency of his petition,
applicant died. Hence, his heirs -- Margarita, Marissa, Maribel, Arnold
and Mary Ann, all surnamed Abistado -- represented by their aunt
Josefa Abistado, who was appointed their guardian ad litem, were
substituted as applicants.
The land registration court in its decision dated June 13, 1989
dismissed the petition for want of jurisdiction. However, it found that the
applicants through their predecessors-in-interest had been in open,
continuous, exclusive and peaceful possession of the subject land
since 1938.
In dismissing the petition, the trial court reasoned:[7]
"x x x. However, the Court noted that applicants failed to comply with
the provisions of Section 23 (1) of PD 1529, requiring the Applicants to
publish the notice of Initial Hearing (Exh. `E') in a newspaper of general
circulation in the Philippines. Exhibit `E' was only published in the
Official Gazette (Exhibits `F' and `G'). Consequently, the Court is of the
well considered view that it has not legally acquired jurisdiction over
the instant application for want of compliance with the mandatory
provision requiring publication of the notice of initial hearing in a
newspaper of general circulation."
The trial court also cited Ministry of Justice Opinion No. 48,
Series of 1982, which in its pertinent portion provides:[8]
It bears emphasis that the publication requirement under Section 23 [of
PD 1529] has a two-fold purpose; the first, which is mentioned in the
provision of the aforequoted provision refers to publication in the
Official Gazette, and is jurisdictional; while the second, which is
mentioned in the opening clause of the same paragraph, refers to
publication not only in the Official Gazette but also in a newspaper of
general circulation, and is procedural. Neither one nor the other is
dispensable. As to the first, publication in the Official Gazette is
indispensably necessary because without it, the court would be
powerless to assume jurisdiction over a particular land registration
case. As to the second, publication of the notice of initial hearing also
in a newspaper of general circulation is indispensably necessary as a
requirement of procedural due process; otherwise, any decision that
the court may promulgate in the case would be legally infirm.
Unsatisfied, private respondents appealed to Respondent Court
of Appeals which, as earlier explained, set aside the decision of the
trial court and ordered the registration of the title in the name of
Teodoro Abistado.

Is newspaper publication of the notice of initial hearing in an

original land registration case mandatory or directory?

The subsequent motion for reconsideration was denied in the

challenged CA Resolution dated November 19, 1991.

Statement of the Case

The Director of Lands represented by the Solicitor General thus

elevated this recourse to us. This Court notes that the petitioners
counsel anchored his petition on Rule 65. This is an error. His remedy
should be based on Rule 45 because he is appealing a final disposition
of the Court of Appeals. Hence, we shall treat his petition as one for
review under Rule 45, and not for certiorari under Rule 65.[9]

The Court of Appeals ruled that it was merely procedural and

that the failure to cause such publication did not deprive the trial court
of its authority to grant the application. But the Solicitor General
disagreed and thus filed this petition to set aside the
Decision[1] promulgated on July 3, 1991 and the subsequent
Resolution[2] promulgated on November 19, 1991 by Respondent Court
of Appeals[3] in CA-G.R. CV No. 23719. The dispositive portion of the
challenged Decision reads:[4]
"WHEREFORE, premises considered, the judgment of dismissal
appealed from is hereby set aside, and a new one entered confirming
the registration and title of applicant, Teodoro Abistado, Filipino, a
resident of Barangay 7, Poblacion Mamburao, Occidental Mindoro,
now deceased and substituted by Margarita, Marissa, Maribel, Arnold
and Mary Ann, all surnamed Abistado, represented by their aunt, Miss
Josefa Abistado, Filipinos, residents of Poblacion Mamburao,
Occidental Mindoro, to the parcel of land covered under MSI (IV-A-8)
315-D located in Poblacion Mamburao, Occidental Mindoro.
The oppositions filed by the Republic of the Philippines and private
oppositor are hereby dismissed for want of evidence.
Upon the finality of this decision and payment of the corresponding
taxes due on this land, let an order for the issuance of a decree be
issued."

The Issue

Petitioner alleges that Respondent Court of Appeals committed

grave abuse of discretion[10] in holding
x x x that publication of the petition for registration of title in LRC Case
No. 86 need not be published in a newspaper of general circulation,
and in not dismissing LRC Case No. 86 for want of such publication.
Petitioner points out that under Section 23 of PD 1529, the
notice of initial hearing shall be published both in the Official
Gazette and in a newspaper of general circulation. According to
petitioner, publication in the Official Gazette is necessary to confer
jurisdiction upon the trial court, and xxx in xxx a newspaper of general
circulation to comply with the notice requirement of due process. [11]
Private respondents, on the other hand, contend that failure to
comply with the requirement of publication in a newspaper of general
circulation is a mere procedural defect. They add that publication in the
Official Gazette is sufficient to confer jurisdiction.[12]
In reversing the decision of the trial court, Respondent Court of
Appeals ruled:[13]

x x x although the requirement of publication in the Official

Gazette and in a newspaper of general circulation is couched in
mandatory terms, it cannot be gainsaid that the law also mandates with
equal force that publication in the Official Gazette shall be sufficient to
confer jurisdiction upon the court.
Further, Respondent Court found that the oppositors were
afforded the opportunity to explain matters fully and present their
side. Thus, it justified its disposition in this wise:[14]
x x x We do not see how the lack of compliance with the required
procedure prejudiced them in any way. Moreover, the other
requirements of: publication in the Official Gazette, personal notice by
mailing, and posting at the site and other conspicuous places, were
complied with and these are sufficient to notify any party who is
minded to make any objection of the application for registration.

The Courts Ruling

We find for petitioner.

Newspaper Publication Mandatory

The pertinent part of Section 23 of Presidential Decree No. 1529

requiring publication of the notice of initial hearing reads as follows:
Sec. 23. Notice of initial hearing, publication, etc. -- The court shall,
within five days from filing of the application, issue an order setting the
date and hour of the initial hearing which shall not be earlier than fortyfive days nor later than ninety days from the date of the order.
The public shall be given notice of initial hearing of the application for
land registration by means of (1) publication; (2) mailing; and (3)
posting.
1. By publication. -Upon receipt of the order of the court setting the time for initial hearing,
the Commissioner of Land Registration shall cause a notice of initial
hearing to be published once in the Official Gazette and once in a
newspaper of general circulation in the Philippines: Provided, however,
that the publication in the Official Gazette shall be sufficient to confer
jurisdiction upon the court. Said notice shall be addressed to all
persons appearing to have an interest in the land involved including
the adjoining owners so far as known, and `to all whom it may
concern.' Said notice shall also require all persons concerned to
appear in court at a certain date and time to show cause why the
prayer of said application shall not be granted.

It should be noted further that land registration is a proceeding in

rem.[17] Being in rem, such proceeding requires constructive seizure of
the land as against all persons, including the state, who have rights to
or interests in the property. An in rem proceeding is validated
essentially through publication. This being so, the process must strictly
be complied with. Otherwise, persons who may be interested or whose
rights may be adversely affected would be barred from contesting an
application which they had no knowledge of. As has been ruled, a
party as an owner seeking the inscription of realty in the land
registration court must prove by satisfactory and conclusive evidence
not only his ownership thereof but the identity of the same, for he is in
the same situation as one who institutes an action for recovery of
realty.[18] He must prove his title against the whole world. This task,
which rests upon the applicant, can best be achieved when all persons
concerned -- nay, the whole world -- who have rights to or interests in
the subject property are notified and effectively invited to come to court
and show cause why the application should not be granted. The
elementary norms of due process require that before the claimed
property is taken from concerned parties and registered in the name of
the applicant, said parties must be given notice and opportunity to
oppose.
It may be asked why publication in a newspaper of general
circulation should be deemed mandatory when the law already
requires notice by publication in the Official Gazette as well as by
mailing and posting, all of which have already been complied with in
the case at hand. The reason is due process and the reality that the
Official Gazette is not as widely read and circulated as newspapers
and is oftentimes delayed in its circulation, such that the notices
published therein may not reach the interested parties on time, if at
all. Additionally, such parties may not be owners of neighboring
properties, and may in fact not own any other real estate. In sum, the
all-encompassing in rem nature of land registration cases, the
consequences of default orders issued against the whole world and the
objective of disseminating the notice in as wide a manner as possible
demand a mandatory construction of the requirements for publication,
mailing and posting.
Admittedly, there was failure to comply with the explicit
publication requirement of the law. Private respondents did not proffer
any excuse; even if they had, it would not have mattered because the
statute itself allows no excuses. Ineludibly, this Court has no authority
to dispense with such mandatory requirement. The law is
unambiguous and its rationale clear. Time and again, this Court has
declared that where the law speaks in clear and categorical language,
there is no room for interpretation, vacillation or equivocation; there is
room only for application.[19] There is no alternative. Thus, the
application for land registration filed by private respondents must be
dismissed without prejudice to reapplication in the future, after all the
legal requisites shall have been duly complied with.
WHEREFORE, the petition is GRANTED and the assailed
Decision and Resolution are REVERSED and SET ASIDE. The
application of private respondent for land registration
isDISMISSED without prejudice. No costs.
SO ORDERED.
Davide, Jr., Melo, and Francisco, JJ., concur.
Narvasa, C.J., (Chairman), on leave.

xxx xxx xxx

Admittedly, the above provision provides in clear and categorical
terms that publication in the Official Gazette suffices to confer
jurisdiction upon the land registration court. However, the question
boils down to whether, absent any publication in a newspaper of
general circulation, the land registration court can validly confirm and
register the title of private respondents.
We answer this query in the negative. This answer is impelled by
the demands of statutory construction and the due process rationale
behind the publication requirement.
The law used the term shall in prescribing the work to be done
by the Commissioner of Land Registration upon the latters receipt of
the court order setting the time for initial hearing.The said word
denotes an imperative and thus indicates the mandatory character of a
statute.[15] While concededly such literal mandate is not an absolute
rule in statutory construction, as its import ultimately depends upon its
context in the entire provision, we hold that in the present case the
term must be understood in its normal mandatory
meaning. In Republic vs. Marasigan,[16] the Court through Mr. Justice
Hilario G. Davide, Jr. held that Section 23 of PD 1529 requires notice
of the initial hearing by means of (1) publication, (2) mailing and (3)
posting, all of which must be complied with. If the intention of the law
were otherwise, said section would not have stressed in detail the
requirements of mailing of notices to all persons named in the petition
who, per Section 15 of the Decree, include owners of adjoining
properties, and occupants of the land. Indeed, if mailing of notices is
essential, then by parity of reasoning, publication in a newspaper of
general circulation is likewise imperative since the law included such
requirement in its detailed provision.

G.R. No. L-55152 August 19, 1986

FLORDELIZA L. VALISNO and HONORIO D. VALISNO, petitioners,
vs.
HON. JUDGE ANDRES B. PLAN, Presiding Judge of the Court of
First Instance of Isabela, Second Branch, and VICENCIO
CAYABA, respondents.
Francisco A. Lava, Jr. for petitioners.
Diosdado B. Ramirez for private respondent.

FERNAN, J.:
Challenged in this petition for certiorari with prayer for a temporary
restraining order are two [2] orders issued by respondent judge in Land
Registration Case No. Branch 11-N-204 of the then Court of First
Instance of Isabela, Second Branch, entitled, "Application for
Registration of Title, Vicencio Q. Cayaba, Applicant, vs. Flordeliza
Valisno and Honorio D. Valisno, Oppositors," the order dated July 2,
1980, dismissing the opposition filed by petitioners on the ground
of res judicata, and the order dated September 19, 1980, denying
petitioners' motion for reconsideration.

The antecedents are as follows:

On August 21, 1964, petitioners-spouses Flordeliza and Honorio
Valisno purchased from the legal heirs of Agapita V. Blanco, namely,
Guillermo, Guillermo, Jr., Manuel and Rosario, all surnamed Blanco,
two parcels of land, particularly described as follows:
[a] a tract of land situated at Sitio Sisim Barangay
Cabaruan, Municipality of Cauayan, Province of
Isabela, having an area of Five Thousand (5,000)
square meters or fifty (50) meters facing the
Provincial Road by one hundred (100) meters
long; bounded on the North by Pedro del Rosario,
on the South by Alberto Tungangui, on the East by
the Provincial Road; and on the West, by Terreno
del Estado, now Matias del Rosario;
and,
[c] a parcel of land situated in the Municipality of
Cauayan, Province of Isabela, having an area of
Six Thousand Two Hundred Fifty (6,250) square
meters or fifty (50) meters at the east side by one
hundred twenty-five (125) meters at the North and
South; bounded on the north by Matias del
Rosario, on the south by Alberto Tungangui, on
the east by Agapita Blanco and on the west by
Cauayan Diversion Road and Matias del Rosario.
[Annex "B", Petition, pp. 41-42, Rollo.]
Thereafter, petitioners declared the above-described parcels of land in
their name for taxation purposes and exercised exclusive possession
thereof in the concept of owners by installing as caretaker one Fermin
Lozano, who had his house built thereon.
On August 12, 1968, private respondent Vicencio Q. Cayaba, claiming
to be the owner of the land in question by virtue of a deed of sale
executed in his and one Bienvenido G. Noriega's favor on June 30,
1967 by the heirs of Dr. Epifanio Q. Verano, ousted Fermin Lozano
from possession of the land. He subsequently erected a six-door
apartment on said land.
On January 22, 1970, petitioners instituted before the then Court of
First Instance of Isabela a complaint against private respondent for
recovery of possession of said parcels of land. The case, docketed as
Civil Case No. Branch II-895, was in due time resolved in favor of
petitioners who were declared owners thereof. On appeal, however, by
private respondent to the then Court of Appeals, the appeal being
docketed as CA-G.R. No. 60142-R, the appellate court in a decision
promulgated on January 19, 1978, reversed the decision of the lower
court and dismissed the complaint of petitioners on a finding that:
Firstly, the 'land in question described in the
complaint and sketched in Exhibit C ... by Dr.
Guillermo Blanco,' is completely different from the
land appearing in the Subdivision Plan of the
appelles appellant, their respective area and
boundaries being completely dissimilar.
Clearly, we fail to see anything in the evidence of
the appellees showing that their property
encroaches, much less covers that of the property
presently occupied by the appellant, except the
self-serving sketch prepared by the appellees' own
witness, Dr. Blanco. We refuse to give any weight
to this piece of evidence because it was prepared
by someone who' has an incentive to exaggerate
or give false color to his statement or to suppress
or prevent the truth or to state what is false.
[Deering v. Wisona Harvester Workers, 155 U.S.
Sup. Ct. Rep. 238]
Therefore, as the land occupied by the appellant
has not been successfully Identified with that
described in the complaint, the instant action
should have been dismissed outright, in view of
the provision of Article 434 of the New Civil Code
which reads.
Art. 434. In an action to recover, the property must
be Identified, and the plaintiff must rely on the
strength of his title and not on the weakness of the
defendant's claim' as well as the doctrine
enunciated in a long line of decision [sic] starting
from Lim vs. Director of Lands, 64 Phil. 343.

Secondly, it is undisputed that the appellant is the

present occupant of the land since he purchased
the same from Tomasita F. Verano on June 30,
1967, having constructed a six-door apartment in
the premises which he lets to both transients and
residents of the locality. Being the actual
possessor of the property, he, therefore,
possesses it with a just title and he need not show
or prove why he is possessing the same. [Arts.
433 and 541 of the New Civil Code].
Finally, between the evidence of the appellees and
that of the appellant, We unhesitatingly choose the
latter in the matter of Identifying the property in
question because it is a vicinity plan [Exhibit "8"]
showing the position of the land in relation not only
to the properties adjoining the same but also with
known boundaries and landmarks in the area. On
the other hand, the appellees' evidence,
particularly the description in Tax Declaration No.
17009, is unreliable, since the area and
boundaries of the property are mere estimations,
reached thru pure guess-work. [Smith Bell & Co.
vs. Director of Lands, 50 Phil. 8791]. Expressing
the same sentiment, one noted authority states:
The proposition that in Identifying a particular
piece of land its boundaries and not the area are
the main factors to be considered holds true only
when the boundaries given are sufficiently certain
and the Identity of the land proved by the
boundaries clearly indicates that an erroneous
statement concerning the area can be
disregarded.' [Bilog, Effective Judicial
Implementation of Land and Forestry Laws, Fourth
Advanced Course for Municipal Courts (1971), cit.
Paterno v. Salud, L-15620, September 30, 19631.
(Annex "C-l," Petition, pp. 5355, Rollo.]
A petition for review on certiorari of said decision filed by petitioners
before this Court was denied due course.
Subsequently, on September 25, 1979, private respondent filed before
the Court of First Instance of Isabela an application for registration in
his name of the title of the lands in question, basing his entitlement
thereto on the aforementioned deed of sale as well as the decision of
the appellate court in CA-G.R. No. 60142-R, [Annex "A", Petition, pp.
32-40, Rollo).
On April 26, 1980, petitioners filed an opposition to the application.
[Annex "B", Petition, p. 41, Rollo] Private respondent, however, moved
for the dismissal of said opposition on the ground that the same is
barred by a prior judgment, i.e., the appellate court's decision in CAG.R. No. 60142-R. Despite the opposition of petitioners to said motion
to dismiss, the lower court issued the first of the assailed orders
dismissing the petitioner's opposition on the ground of res judicata.
[Annex "E", Petition, p. 83, Rollo] When their motion for
reconsideration was denied, petitioners filed the instant petition, raising
as grounds therefor the following:
RESPONDENT JUDGE ERRED GRAVELY IN
DISMISSING PETITIONERS' OPPOSITION TO
RESPONDENTS' APPLICATION FOR
REGISTRATION OF TITLE, WHICH IS HIGHLY
IRREGULAR IN LAND REGISTRATION
PROCEEDINGS.
RESPONDENT JUDGE ERRED GRAVELY IN
DISREGARDING THE PRECEDENT
OF ABELLERA VS. FAROL THAT RES
JUDICATA CANNOT BE SET UP IN A LAND
REGISTRATION CASE.
RESPONDENT JUDGE ERRED GRAVELY IN
HOLDING THAT THE REQUISITES FOR RES
JUDICATA EXIST IN THE CASE AT BAR,
ASSUMING ARGUENDO THAT A MOTION TO
DISMISS OPPOSITION IS PROPER IN A LAND
REGISTRATION CASE, AND THAT RES
JUDICATA MAYBE RAISED IN SAID MOTION TO
DISMISS.
RESPONDENT JUDGE ERRED GRAVELY IN
DEPRIVING PETITIONERS HEREIN OF THEIR
DAY IN COURT, SPECIALLY IN THE FACE OF
STRONG INDICATIONS, ALREADY IN THE
RECORD, THAT RESPONDENT CAYABA IS
ACTUALLY TRYING TO SECURE TITLE TO

WHAT REALLY IN THE LAND OF THE

PETITIONERS.
RESPONDENT JUDGE ERRED GRAVELY, WITH
GRAVE ABUSE OF DISCRETION AND IN
EXCESS OF JURISDICTION IN ISSUING HIS
ORDERS OF JULY 2,1980 [ANNEX "E"] AND
SEPTEMBER 19, 1980 [ANNEX "H"]. (pp. 18-19,
Rollo)
On April 1, 1981, this Court gave due course to the petition and
required the parties to file their briefs. Petitioners did so on August 26,
1981. Private respondent, on the other hand, failed to file his brief
within the given period which expired on October 9, 1981. Thus, the
case was consider submitted for decision without the brief of private
respondent.
On July 8, 1985, this Court received a copy of the motion to amend
application filed by Bienvenido G. Noriega, Sr., thru counsel, in LRC
Case No. Br. II-N-204, praying that he be included as co-applicant to
the land sought to be registered.
In the course of our study of pertinent jurisprudence, We observe that
the situation obtaining in the case at bar, i.e., a motion to dismiss the
opposition having been filed and more importantly, granted, is indeed
unique and peculiar. But while this may be so, it is not highly irregular
as petitioners would characterize it.
Verily, the Land Registration Act [Act 496] does not provide for a
pleading similar or corresponding to a motion to dismiss. Rule 132 of
the Rules of Court, however, allows the application of the rules
contained therein in land registration proceedings in a suppletory
character or whenever practicable and convenient. Thus, for the
expeditious termination of the land registration case, this Court
in Duran v. Oliva, 3 SCRA 154, sustained the dismissal of the
application for registration of therein appellants upon a motion to
dismiss filed by five [5] oppositors, it having been indubitably shown
that the court a quo did not have jurisdiction over the res as the lands
sought to be registered in appellants' name had previously been
registered in the names of the oppositors. To have allowed the
registration proceeding to run its usual course would have been a mere
exercise in futility. The same consideration applies to the case at bar.
It must be noted that the opposition partakes of the nature of an
answer with a counterclaim. In ordinary civil cases, the counterclaim
would be considered a complaint, this time with the original defendant
becoming the plaintiff. The original plaintiff, who becomes defendant in
the counterclaim may either then answer the counterclaim or be
declared in default, or may file a motion to dismiss the same. The latter
choice was what respondent Cayaba opted for. Although as We have
earlier said, such situation rarely, if ever, happens in land registration
cases, the irregularity that petitioners complain of stems basically from
the infrequent use of a motion to dismiss in land registration cases,
and not from it being unauthorize.
The case of Abellera vs. Farol 74 Phil. 284, heavily relied upon by
petitioners needs re-evaluation. In said case, Mr. Justice Bocobo,
speaking for the Court, ruled that "while in a cadastral case, res
judicata is available to a claimant in order to defeat the alleged rights of
another claimant, nevertheless, prior judgment can not be set up in a
motion to dismiss. " Concurring in said opinion were then Chief Justice
Yulo and Associate Justices Moran and Ozaeta. Mr. Justice Paras
dissented, saying "in my opinion, Rule 132 in connection with Rule 8 of
the Rules of Court, instead of prohibiting expressly authorizes the
lower court in land registration or cadastral proceedings to entertain a
motion for dismissal on the ground of res judicata or prescription. Of
course, the dismissal of petitioner's claim will not necessarily or
automatically mean adjudication of title to the individual respondents
but it will certainly facilitate the consideration of their claims which
cease to be contested. Prompt disposal of cases or such claims is the
main purpose of said rules. Let there be no retrogression in the
application of sound rules and doctrines." [Ibid, pp. 286-287) In support
of his opinion, Justice Paras cited the cases of Menor v. Quintana, 56
Phil. 657, Versoza v. Nicolas, 29 Phil. 425 and Santiago v. Santos, 54
Phil. 619, wherein the Court invariably ruled that a "final judgment in an
ordinary civil case determining the ownership of certain land is res
judicata in a registration case when the parties and the property are
the same as in the former case. " [Menor v. Quintana,supra.]
There is no doubt that the principle of res judicata operates in the case
at bar. For said principle to apply: [a] the former judgment must be
final, [b] it must have been' rendered by a court having jurisdiction of
the subject matter and of the parties, [c] it must be a judgment on the
merits and [d] there must be between the first and second actions
identity of parties, of subject matter and of cause of action. [Carandang
v. Venturanza, 133 SCRA 344] The decision in CA-G. R. No. 60142-R
is a final judgment on the merits rendered by a court which had
jurisdiction over the subject matter and the parties. There is, between
the registration case under consideration and the previous civil action

for recovery of property, identity of parties, subject matter and cause of

action. The inclusion of private respondent Cayaba's co-owner,
Bienvenido Noriega, Sr., in the application for registration does not
result in a difference in parties between the two cases. One right of a
co-owner is to defend in court the interests of the co-ownership.
[Paras, Civil Code of the Philippines, Annotated, Vol. II, 7th Edition, p.
258] Thus, when private respondent Cayaba defended his ownership
over the land in question, he was doing so in behalf of the coownership. This is evident from the fact that one of the evidence he
presented to prove ownership was the deed of sale executed by the
heirs of Dr. Epifanio Q. Verano is his and Bienvenido Noriega's favor.
With respect to the subject matter, there can be no question that the
land sought to be recovered by petitioners are the very same parcels
of land being sought to be registered in Cayaba's and Noriega's
names.
While the complaint in the first action is captioned for recovery of
possession, the allegations and the prayer for relief therein raise the
issue of ownership. In effect, it is in the nature of an accion
reinvidicatoria. The second case is for registration of title.
Consequently, between the two cases there is identity of causes of
action because in accion reinvidicatoria, possession is sought on the
basis of ownership and the same is true in registration cases.
Registration of title in one's name is based on ownership. In both
cases, the plaintiff and the applicant seek to exclude other persons
from ownership of the land in question. The only difference is that in
the former case, the exclusion is directed against particular persons,
while in the latter proceedings, the exclusion is directed against the
whole world. Nonetheless, the cause of action remains the same. In
fact, this Court held in Dais v. Court of First Instance of Capiz, [51 Phil.
896] that the answers in a cadastral proceedings partake of an action
to recover title, as real rights are involved therein. It is only the form of
action which is different. "But the employment of two different forms of
action, does not enable one to escape the operation of the principle
that one and the same cause of action shall not be twice litigated."
[Yusingco v. Ong Hing Lian, 42 SCRA 590 and the cases cited therein,
Gonzales v. Gonzales, 26 SCRA 76; Aguilar v. Tuason Co., 22 SCRA
690; Albano v. Coloma, 21 SCRA 411; Sumarariz v. Development Bank
of the Phil., 21 SCRA 1378; Abes, et al. v. Rodil, et al., 17 SCRA 824;
Cayco, et al. v. Cruz et al., 106 Phil. 68; Ma. Garcia de Lim Toco v. Go
Pay, 81 Phil. 258; San Diego v. Cardona, et al., 70 Phil. 281].
It does not matter that the first case was decided by a court of general
jurisdiction, while the second case is being heard by one of a limited
jurisdiction, such as a registration court. It is enough that the court
which decided the first case on the merits had validly acquired
jurisdiction over the subject matter and the parties. That both courts
should have equal jurisdiction is not a requisite of res judicata.
If, as the Abellera case, supra, held that res judicata can be set up by a
claimant to defeat the alleged right of another claimant, what useful
purpose would be served by allowing a party to present evidence of
ownership over the land sought to be registered when the final result
would necessarily be in favor of the claimant who had set up the
defense of res judicata? And supposing the land registration court finds
that the party against whom the principle of res judicata operates does
have a better right or title to the land, what happens to the principle
of res judicata? Can a court sitting as a land registration court in effect,
annul a final judgment of another court of general jurisdiction?
To our mind, therefore, the better policy, both for practicality and
convenience, is to grant the dismissal of either the application for
registration or the opposition thereto, once it has been indubitably
shown, as in the case at bar, that one or the other is barred by a prior
judgment. The ruling in the Abellera case, should therefore be, as it is,
hereby abandoned.
Petitioners complain that by dismissing their opposition, respondent
court had denied them their day in court. It is well to remind petitioners
that they had their day in court in Civil Case No. Branch II-895 as well
as CA-G.R. No. 60142-R, where their claim over the land in question
was fully aired and ventilated.
The conflicting claims of petitioners and respondent Cayaba [in behalf
of the co-ownership] with respect to the land under consideration had
been put to rest in CA-G.R. No. 60142-R. Said decision having
attained finality, the same remains the law of the case between the
parties.
Finding no error to have been committed by respondent judge in
dismissing petitioners' opposition, such dismissal must be affirmed.
WHEREFORE, the instant petition is hereby dismissed. Cost against
petitioners.
SO ORDERED.

DAY 12

question becomes unavoidable. We shall then proceed to decide that

question.
Article XIII, section 1, of the Constitutional is as follows:

G.R. No. L-630

November 15, 1947

ALEXANDER A. KRIVENKO, petitioner-appellant,

vs.
THE REGISTER OF DEEDS, CITY OF MANILA, respondent and
appellee.
Gibbs, Gibbs, Chuidian and Quasha of petitioner-appellant.
First Assistant Solicitor General Reyes and Solicitor Carreon for
respondent-appellee.
Marcelino Lontok appeared as amicus curies.
MORAN, C.J.:
Alenxander A. Kriventor alien, bought a residential lot from the
Magdalena Estate, Inc., in December of 1941, the registration of which
was interrupted by the war. In May, 1945, he sought to accomplish said
registration but was denied by the register of deeds of Manila on the
ground that, being an alien, he cannot acquire land in this jurisdiction.
Krivenko then brought the case to the fourth branch of the Court of
First Instance of Manila by means of a consulta, and that court
rendered judgment sustaining the refusal of the register of deeds, from
which Krivenko appealed to this Court.
There is no dispute as to these facts. The real point in issue is whether
or not an alien under our Constitution may acquire residential land.
It is said that the decision of the case on the merits is unnecessary,
there being a motion to withdraw the appeal which should have been
granted outright, and reference is made to the ruling laid down by this
Court in another case to the effect that a court should not pass upon a
constitutional question if its judgment may be made to rest upon other
grounds. There is, we believe, a confusion of ideas in this reasoning. It
cannot be denied that the constitutional question is unavoidable if we
choose to decide this case upon the merits. Our judgment cannot to be
made to rest upon other grounds if we have to render any judgment at
all. And we cannot avoid our judgment simply because we have to
avoid a constitutional question. We cannot, for instance, grant the
motion withdrawing the appeal only because we wish to evade the
constitutional; issue. Whether the motion should be, or should not be,
granted, is a question involving different considerations now to be
stated.
According to Rule 52, section 4, of the Rules of Court, it is
discretionary upon this Court to grant a withdrawal of appeal after the
briefs have been presented. At the time the motion for withdrawal was
filed in this case, not only had the briefs been prensented, but the case
had already been voted and the majority decision was being prepared.
The motion for withdrawal stated no reason whatsoever, and the
Solicitor General was agreeable to it. While the motion was pending in
this Court, came the new circular of the Department of Justice,
instructing all register of deeds to accept for registration all transfers of
residential lots to aliens. The herein respondent-appellee was naturally
one of the registers of deeds to obey the new circular, as against his
own stand in this case which had been maintained by the trial court
and firmly defended in this Court by the Solicitor General. If we grant
the withdrawal, the the result would be that petitioner-appellant
Alexander A. Krivenko wins his case, not by a decision of this Court,
but by the decision or circular of the Department of Justice, issued
while this case was pending before this Court. Whether or not this is
the reason why appellant seeks the withdrawal of his appeal and why
the Solicitor General readily agrees to that withdrawal, is now
immaterial. What is material and indeed very important, is whether or
not we should allow interference with the regular and complete
exercise by this Court of its constitutional functions, and whether or not
after having held long deliberations and after having reached a clear
and positive conviction as to what the constitutional mandate is, we
may still allow our conviction to be silenced, and the constitutional
mandate to be ignored or misconceived, with all the harmful
consequences that might be brought upon the national patromony. For
it is but natural that the new circular be taken full advantage of by
many, with the circumstance that perhaps the constitutional question
may never come up again before this court, because both vendors and
vendees will have no interest but to uphold the validity of their
transactions, and very unlikely will the register of deeds venture to
disobey the orders of their superior. Thus, the possibility for this court
to voice its conviction in a future case may be remote, with the result
that our indifference of today might signify a permanent offense to the
Constitution.
All thse circumstances were thoroughly considered and weighted by
this Court for a number of days and the legal result of the last vote was
a denial of the motion withdrawing the appeal. We are thus confronted,
at this stage of the proceedings, with our duty, the constitutional

Article XIII. Conservation and utilization of natural

resources.
SECTION 1. All agricultural, timber, and mineral lands of the
public domain, water, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which
is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inaguration of
the Government established uunder this Constitution.
Natural resources, with the exception of public agricultural
land, shall not be alienated, and no licence, concession, or
lease for the exploitation, development, or utilization of any
of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twentyfive years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the
development of water "power" in which cases beneficial use
may be the measure and the limit of the grant.
The scope of this constitutional provision, according to its heading and
its language, embraces all lands of any kind of the public domain, its
purpose being to establish a permanent and fundamental policy for the
conservation and utilization of all natural resources of the Nation.
When, therefore, this provision, with reference to lands of the public
domain, makes mention of only agricultural, timber and mineral lands,
it means that all lands of the public domain are classified into said
three groups, namely, agricultural, timber and mineral. And this
classification finds corroboration in the circumstance that at the time of
the adoption of the Constitution, that was the basic classification
existing in the public laws and judicial decisions in the Philippines, and
the term "public agricultural lands" under said classification had then
acquired a technical meaning that was well-known to the members of
the Constitutional Convention who were mostly members of the legal
profession.
As early as 1908, in the case of Mapa vs. Insular Government (10
Phil., 175, 182), this Court said that the phrase "agricultural public
lands" as defined in the Act of Congress of July 1, 1902, which phrase
is also to be found in several sections of the Public Land Act (No. 926),
means "those public lands acquired from Spain which are neither
mineral for timber lands." This definition has been followed in long line
of decisions of this Court. (SeeMontano vs. Insular Government, 12
Phil., 593; Ibaez de Aldecoa vs. Insular Government, 13 Phil., 159;
Ramosvs. Director of Lands, 39 Phil., 175; Jocson vs. Director of
Forestry, 39 Phil., 560; Ankron vs. Government of the Philippines, 40
Phil., 10.) And with respect to residential lands, it has been held that
since they are neither mineral nor timber lands, of necessity they must
be classified as agricultural. In Ibaez de Aldecoa vs. Insular
Government (13 Phil., 159, 163), this Court said:
Hence, any parcel of land or building lot is susceptible of
cultivation, and may be converted into a field, and planted
with all kinds of vegetation; for this reason, where land is not
mining or forestal in its nature, it must necessarily be
included within the classification of agricultural land, not
because it is actually used for the purposes of agriculture,
but because it was originally agricultural and may again
become so under other circumstances; besides, the Act of
Congress contains only three classification, and makes no
special provision with respect to building lots or urban lands
that have ceased to be agricultural land.
In other words, the Court ruled that in determining whether a parcel of
land is agricultural, the test is not only whether it is actually agricultural,
but also its susceptibility to cultivation for agricultural purposes. But
whatever the test might be, the fact remains that at the time the
Constitution was adopted, lands of the public domain were classified in
our laws and jurisprudence into agricultural, mineral, and timber, and
that the term "public agricultural lands" was construed as referring to
those lands that were not timber or mineral, and as including
residential lands. It may safely be presumed, therefore, that what the
members of the Constitutional Convention had in mind when they
drafted the Constitution was this well-known classification and its
technical meaning then prevailing.
Certain expressions which appear in Constitutions, . . . are
obviously technical; and where such words have been in use
prior to the adoption of a Constitution, it is presumed that its
framers and the people who ratified it have used such
expressions in accordance with their technical meaning. (11

Am. Jur., sec. 66, p. 683.) Also Calder vs. Bull, 3 Dall. [U.S.],
386; 1 Law. ed., 648; Bronson vs. Syverson, 88 Wash., 264;
152 P., 1039.)
It is a fundamental rule that, in construing constitutions,
terms employed therein shall be given the meaning which
had been put upon them, and which they possessed, at the
time of the framing and adoption of the instrument. If a word
has acquired a fixed, technical meaning in legal and
constitutional history, it will be presumed to have been
employed in that sense in a written Constitution.
(McKinney vs. Barker, 180 Ky., 526; 203 S.W., 303; L.R.A.,
1918 E, 581.)
Where words have been long used in a technical sense and
have been judicially construed to have a certain meaning,
and have been adopted by the legislature as having a
certain meaning prior to a particular statute in which they are
used, the rule of construction requires that the words used in
such statute should be construed according to the sense in
which they have been so previously used, although the
sense may vary from strict literal meaning of the words. (II
Sutherland, Statutory Construction, p. 758.)
Therefore, the phrase "public agricultural lands" appearing in section 1
of Article XIII of the Constitution must be construed as including
residential lands, and this is in conformity with a legislative
interpretation given after the adoption of the Constitution. Well known
is the rule that "where the Legislature has revised a statute after a
Constitution has been adopted, such a revision is to be regarded as a
legislative construction that the statute so revised conforms to the
Constitution." (59 C.J., 1102.) Soon after the Constitution was adopted,
the National Assembly revised the Public Land Law and passed
Commonwealth Act No. 141, and sections 58, 59 and 60 thereof permit
the sale of residential lots to Filipino citizens or to associations or
corporations controlled by such citizens, which is equivalent to a
solemn declaration that residential lots are considered as agricultural
lands, for, under the Constitution, only agricultural lands may be
alienated.
It is true that in section 9 of said Commonwealth Act No. 141,
"alienable or disposable public lands" which are the same "public
agriculture lands" under the Constitution, are classified into agricultural,
residential, commercial, industrial and for other puposes. This simply
means that the term "public agricultural lands" has both a broad and a
particular meaning. Under its broad or general meaning, as used in the
Constitution, it embraces all lands that are neither timber nor mineral.
This broad meaning is particularized in section 9 of Commonwealth Act
No. 141 which classifies "public agricultural lands" for purposes of
alienation or disposition, into lands that are stricly agricultural or
actually devoted to cultivation for agricultural puposes; lands that are
residential; commercial; industrial; or lands for other purposes. The fact
that these lands are made alienable or disposable under
Commonwealth Act No. 141, in favor of Filipino citizens, is a conclusive
indication of their character as public agricultural lands under said
statute and under the Constitution.
It must be observed, in this connection that prior to the Constitution,
under section 24 of Public Land Act No. 2874, aliens could acquire
public agricultural lands used for industrial or residential puposes, but
after the Constitution and under section 23 of Commonwealth Act No.
141, the right of aliens to acquire such kind of lands is completely
stricken out, undoubtedly in pursuance of the constitutional limitation.
And, again, prior to the Constitution, under section 57 of Public Land
Act No. 2874, land of the public domain suitable for residence or
industrial purposes could be sold or leased to aliens, but after the
Constitution and under section 60 of Commonwealth Act No. 141, such
land may only be leased, but not sold, to aliens, and the lease granted
shall only be valid while the land is used for the purposes referred to.
The exclusion of sale in the new Act is undoubtedly in pursuance of the
constitutional limitation, and this again is another legislative
construction that the term "public agricultural land" includes land for
residence purposes.
Such legislative interpretation is also in harmony with the interpretation
given by the Executive Department of the Government. Way back in
1939, Secretary of Justice Jose Abad Santos, in answer to a query as
to "whether or not the phrase 'public agricultural lands' in section 1 of
Article XII (now XIII) of the Constitution may be interpreted to include
residential, commercial, and industrial lands for purposes of their
disposition," rendered the following short, sharp and crystal-clear
opinion:
Section 1, Article XII (now XIII) of the Constitution classifies
lands of the public domain in the Philippines into agricultural,
timber and mineral. This is the basic classification adopted
since the enactment of the Act of Congress of July 1, 1902,
known as the Philippine Bill. At the time of the adoption of
the Constitution of the Philippines, the term 'agricultural
public lands' and, therefore, acquired a technical meaning in

our public laws. The Supreme Court of the Philippines in the

leading case of Mapa vs. Insular Government, 10 Phil., 175,
held that the phrase 'agricultural public lands' means those
public lands acquired from Spain which are neither timber
nor mineral lands. This definition has been followed by our
Supreme Court in many subsequent case. . . .
Residential commercial, or industrial lots forming part of the
public domain must have to be included in one or more of
these classes. Clearly, they are neither timber nor mineral, of
necessity, therefore, they must be classified as agricultural.
Viewed from another angle, it has been held that in
determining whether lands are agricultural or not, the
character of the land is the test (Odell vs. Durant, 62 N.W.,
524; Lorch vs. Missoula Brick and Tile Co., 123 p.25). In
other words, it is the susceptibility of the land to cultivation
for agricultural purposes by ordinary farming methods which
determines whether it is agricultural or not
(State vs. Stewart, 190 p. 129).
Furthermore, as said by the Director of Lands, no reason is
seen why a piece of land, which may be sold to a person if
he is to devote it to agricultural, cannot be sold to him if he
intends to use it as a site for his home.
This opinion is important not alone because it comes from a Secratary
of Justice who later became the Chief Justice of this Court, but also
because it was rendered by a member of the cabinet of the late
President Quezon who actively participated in the drafting of the
constitutional provision under consideration. (2 Aruego, Framing of the
Philippine Constitution, p. 598.) And the opinion of the Quezon
administration was reiterated by the Secretary of Justice under the
Osmea administration, and it was firmly maintained in this Court by
the Solicitor General of both administrations.
It is thus clear that the three great departments of the Government
judicial, legislative and executive have always maintained that lands
of the public domain are classified into agricultural, mineral and timber,
and that agricultural lands include residential lots.
Under section 1 of Article XIII of the Constitution, "natural resources,
with the exception of public agricultural land, shall not be aliented," and
with respect to public agricultural lands, their alienation is limited to
Filipino citizens. But this constitutional purpose conserving agricultural
resources in the hands of Filipino citizens may easily be defeated by
the Filipino citizens themselves who may alienate their agricultural
lands in favor of aliens. It is partly to prevent this result that section 5 is
included in Article XIII, and it reads as follows:
Sec. 5. Save in cases of hereditary succession, no private
agricultural land will be transferred or assigned except to
individuals, corporations, or associations qualified to acquire
or hold lands of the public domain in the Philippines.
This constitutional provision closes the only remaining avenue through
which agricultural resources may leak into aliens' hands. It would
certainly be futile to prohibit the alienation of public agricultural lands to
aliens if, after all, they may be freely so alienated upon their becoming
private agricultural lands in the hands of Filipino citizens. Undoubtedly,
as above indicated, section 5 is intended to insure the policy of
nationalization contained in section 1. Both sections must, therefore,
be read together for they have the same purpose and the same subject
matter. It must be noticed that the persons against whom the
prohibition is directed in section 5 are the very same persons who
under section 1 are disqualified "to acquire or hold lands of the public
domain in the Philippines." And the subject matter of both sections is
the same, namely, the non-transferability of "agricultural land" to aliens.
Since "agricultural land" under section 1 includes residential lots, the
same technical meaning should be attached to "agricultural land under
section 5. It is a rule of statutory construction that "a word or phrase
repeated in a statute will bear the same meaning throughout the
statute, unless a different intention appears." (II Sutherland, Statutory
Construction, p. 758.) The only difference between "agricultural land"
under section 5, is that the former is public and the latter private. But
such difference refers to ownership and not to the class of land. The
lands are the same in both sections, and, for the conservation of the
national patrimony, what is important is the nature or class of the
property regardless of whether it is owned by the State or by its
citizens.
Reference is made to an opinion rendered on September 19, 1941, by
the Hon. Teofilo Sison, then Secretary of Justice, to the effect that
residential lands of the public domain may be considered as
agricultural lands, whereas residential lands of private ownership
cannot be so considered. No reason whatsoever is given in the opinion
for such a distinction, and no valid reason can be adduced for such a
discriminatory view, particularly having in mind that the purpose of the
constitutional provision is the conservation of the national patrimony,

and private residential lands are as much an integral part of the

national patrimony as the residential lands of the public domain.
Specially is this so where, as indicated above, the prohibition as to the
alienable of public residential lots would become superflous if the same
prohibition is not equally applied to private residential lots. Indeed, the
prohibition as to private residential lands will eventually become more
important, for time will come when, in view of the constant disposition
of public lands in favor of private individuals, almost all, if not all, the
residential lands of the public domain shall have become private
residential lands.
It is maintained that in the first draft of section 5, the words "no land of
private ownership" were used and later changed into "no agricultural
land of private ownership," and lastly into "no private agricultural land"
and from these changes it is argued that the word "agricultural"
introduced in the second and final drafts was intended to limit the
meaning of the word "land" to land actually used for agricultural
purposes. The implication is not accurate. The wording of the first draft
was amended for no other purpose than to clarify concepts and avoid
uncertainties. The words "no land" of the first draft, unqualified by the
word "agricultural," may be mistaken to include timber and mineral
lands, and since under section 1, this kind of lands can never be
private, the prohibition to transfer the same would be superfluous.
Upon the other hand, section 5 had to be drafted in harmony with
section 1 to which it is supplementary, as above indicated. Inasmuch
as under section 1, timber and mineral lands can never be private, and
the only lands that may become private are agricultural lands, the
words "no land of private ownership" of the first draft can have no other
meaning than "private agricultural land." And thus the change in the
final draft is merely one of words in order to make its subject matter
more specific with a view to avoiding the possible confusion of ideas
that could have arisen from the first draft.
If the term "private agricultural lands" is to be construed as not
including residential lots or lands not strictly agricultural, the result
would be that "aliens may freely acquire and possess not only
residential lots and houses for themselves but entire subdivisions, and
whole towns and cities," and that "they may validly buy and hold in
their names lands of any area for building homes, factories, industrial
plants, fisheries, hatcheries, schools, health and vacation resorts,
markets, golf courses, playgrounds, airfields, and a host of other uses
and purposes that are not, in appellant's words, strictly agricultural."
(Solicitor General's Brief, p. 6.) That this is obnoxious to the
conservative spirit of the Constitution is beyond question.
One of the fundamental principles underlying the provision of Article
XIII of the Constitution and which was embodied in the report of the
Committee on Nationalization and Preservation of Lands and other
Natural Resources of the Constitutional Convention, is "that lands,
minerals, forests, and other natural resources constitute the exclusive
heritage of the Filipino nation. They should, therefore, be preserved for
those under the sovereign authority of that nation and for their
posterity." (2 Aruego, Framing of the Filipino Constitution, p. 595.)
Delegate Ledesma, Chairman of the Committee on Agricultural
Development of the Constitutional Convention, in a speech delivered in
connection with the national policy on agricultural lands, said: "The
exclusion of aliens from the privilege of acquiring public agricultural
lands and of owning real estate is a necessary part of the Public Land
Laws of the Philippines to keep pace with the idea of preserving the
Philippines for the Filipinos." (Emphasis ours.) And, of the same tenor
was the speech of Delegate Montilla who said: "With the complete
nationalization of our lands and natural resources it is to be understood
that our God-given birthright should be one hundred per cent in Filipino
hands . . .. Lands and natural resources are immovables and as such
can be compared to the vital organs of a person's body, the lack of
possession of which may cause instant death or the shortening of life.
If we do not completely antionalize these two of our most important
belongings, I am afraid that the time will come when we shall be sorry
for the time we were born. Our independence will be just a mockery,
for what kind of independence are we going to have if a part of our
country is not in our hands but in those of foreigners?" (Emphasis
ours.) Professor Aruego says that since the opening days of the
Constitutional Convention one of its fixed and dominating objectives
was the conservation and nationalization of the natural resources of
the country. (2 Aruego, Framing of the Philippine Constitution, p 592.)
This is ratified by the members of the Constitutional Convention who
are now members of this Court, namely, Mr. Justice Perfecto, Mr.
Justice Briones, and Mr. Justice Hontiveros. And, indeed, if under
Article XIV, section 8, of the Constitution, an alien may not even
operate a small jitney for hire, it is certainly not hard to understand that
neither is he allowed to own a pieace of land.
This constitutional intent is made more patent and is strongly
implemented by an act of the National Assembly passed soon after the
Constitution was approved. We are referring again to Commonwealth
Act No. 141. Prior to the Constitution, there were in the Public Land Act
No. 2874 sections 120 and 121 which granted aliens the right to
acquire private only by way of reciprocity. Said section reads as
follows:

SEC. 120. No land originally acquired in any manner under

the provisions of this Act, nor any permanent improvement
on such land, shall be encumbered, alienated, or transferred,
except to persons, corporations, associations, or
partnerships who may acquire lands of the public domain
under this Act; to corporations organized in the Philippine
Islands authorized therefor by their charters, and, upon
express authorization by the Philippine Legislature, to
citizens of countries the laws of which grant to citizens of the
Philippine Islands the same right to acquire, hold, lease,
encumber, dispose of, or alienate land, or permanent
improvements thereon, or any interest therein, as to their
own citizens, only in the manner and to the extent specified
in such laws, and while the same are in force but not
thereafter.
SEC. 121. No land originally acquired in any manner under
the provisions of the former Public Land Act or of any other
Act, ordinance, royal order, royal decree, or any other
provision of law formerly in force in the Philippine Islands
with regard to public lands, terrenos baldios y realengos, or
lands of any other denomination that were actually or
presumptively of the public domain or by royal grant or in
any other form, nor any permanent improvement on such
land, shall be encumbered, alienated, or conveyed, except to
persons, corporations, or associations who may acquire land
of the public domain under this Act; to corporate bodies
organized in the Philippine Islands whose charters may
authorize them to do so, and, upon express authorization by
the Philippine Legislature, to citizens of the countries the
laws of which grant to citizens of the Philippine Islands the
same right to acquire, hold, lease, encumber, dispose of, or
alienate land or pemanent improvements thereon or any
interest therein, as to their own citizens, and only in the
manner and to the extent specified in such laws, and while
the same are in force, but not thereafter:Provided, however,
That this prohibition shall not be applicable to the
conveyance or acquisition by reason of hereditary
succession duly acknowledged and legalized by competent
courts, nor to lands and improvements acquired or held for
industrial or residence purposes, while used for such
purposes:Provided, further, That in the event of the
ownership of the lands and improvements mentioned in this
section and in the last preceding section being transferred by
judicial decree to persons,corporations or associations not
legally capacitated to acquire the same under the provisions
of this Act, such persons, corporations, or associations shall
be obliged to alienate said lands or improvements to others
so capacitated within the precise period of five years, under
the penalty of such property reverting to the Government in
the contrary case." (Public Land Act, No. 2874.)
It is to be observed that the pharase "no land" used in these section
refers to all private lands, whether strictly agricultural, residential or
otherwise, there being practically no private land which had not been
acquired by any of the means provided in said two sections. Therefore,
the prohibition contained in these two provisions was, in effect, that no
private land could be transferred to aliens except "upon express
authorization by the Philippine Legislature, to citizens of Philippine
Islands the same right to acquire, hold, lease, encumber, dispose of, or
alienate land." In other words, aliens were granted the right to acquire
private land merely by way of reciprocity. Then came the Constitution
and Commonwealth Act No. 141 was passed, sections 122 and 123 of
which read as follows:
SEC. 122. No land originally acquired in any manner under
the provisions of this Act, nor any permanent improvement
on such land, shall be encumbered, alienated, or transferred,
except to persons, corporations, associations, or
partnerships who may acquire lands of the public domain
under this Act or to corporations organized in the Philippines
authorized thereof by their charters.
SEC. 123. No land originally acquired in any manner under
the provisions of any previous Act, ordinance, royal order,
royal decree, or any other provision of law formerly in force
in the Philippines with regard to public lands terrenos baldios
y realengos, or lands of any other denomination that were
actually or presumptively of the public domain, or by royal
grant or in any other form, nor any permanent improvement
on such land, shall be encumbered, alienated, or conveyed,
except to persons, corporations or associations who may
acquire land of the public domain under this Act or to
corporate bodies organized in the Philippines whose
charters authorize them to do so: Provided, however, That
this prohibition shall not be applicable to the conveyance or
acquisition by reason of hereditary succession duly
acknowledged and legalized by competent courts: Provided,
further, That in the event of the ownership of the lands and
improvements mentioned in this section and in the last
preceding section being transferred by judicial decree to

persons, corporations or associations not legally capacitated

to acquire the same under the provisions of this Act, such
persons, corporations, or associations shall be obliged to
alienate said lands or improvements to others so capacitated
within the precise period of five years; otherwise, such
property shall revert to the Government.
These two sections are almost literally the same as sections 120 and
121 of Act No. 2874, the only difference being that in the new
provisions, the right to reciprocity granted to aliens is completely
stricken out. This, undoubtedly, is to conform to the absolute policy
contained in section 5 of Article XIII of the Constitution which, in
prohibiting the alienation of private agricultural lands to aliens, grants
them no right of reciprocity. This legislative construction carries
exceptional weight, for prominent members of the National Assembly
who approved the new Act had been members of the Constitutional
Convention.
It is said that the lot question does not come within the purview of
sections 122 and 123 of Commonwealth Act No. 141, there being no
proof that the same had been acquired by one of the means provided
in said provisions. We are not, however, diciding the instant case under
the provisions of the Public Land Act, which have to refer to land that
had been formerly of the public domain, otherwise their constitutionality
may be doubtful. We are deciding the instant case under section 5 of
Article XIII of the Constitution which is more comprehensive and more
absolute in the sense that it prohibits the transfer to alien of any private
agricultural land including residential land whatever its origin might
have been.
And, finally, on June 14, 1947, the Congress approved Republic Act
No. 133 which allows mortgage of "private real property" of any kind in
favor of aliens but with a qualification consisting of expressly
prohibiting aliens to bid or take part in any sale of such real property as
a consequence of the mortgage. This prohibition makes no distinction
between private lands that are strictly agricultural and private lands
that are residental or commercial. The prohibition embraces the sale of
private lands of any kind in favor of aliens, which is again a clear
implementation and a legislative interpretation of the constitutional
prohibition. Had the Congress been of opinion that private residential
lands may be sold to aliens under the Constitution, no legislative
measure would have been found necessary to authorize mortgage
which would have been deemed also permissible under the
Constitution. But clearly it was the opinion of the Congress that such
sale is forbidden by the Constitution and it was such opinion that
prompted the legislative measure intended to clarify that mortgage is
not within the constitutional prohibition.
It is well to note at this juncture that in the present case we have no
choice. We are construing the Constitution as it is and not as we may
desire it to be. Perhaps the effect of our construction is to preclude
aliens, admitted freely into the Philippines from owning sites where
they may build their homes. But if this is the solemn mandate of the
Constitution, we will not attempt to compromise it even in the name of
amity or equity. We are satisfied, however, that aliens are not
completely excluded by the Constitution from the use of lands for
residential purposes. Since their residence in the Philippines is
temporary, they may be granted temporary rights such as a lease
contract which is not forbidden by the Constitution. Should they desire
to remain here forever and share our fortunes and misfortunes, Filipino
citizenship is not impossible to acquire.
For all the foregoing, we hold that under the Constitution aliens may
not acquire private or public agricultural lands, including residential
lands, and, accordingly, judgment is affirmed, without costs.
Feria, Pablo, Perfecto, Hilado, and Briones, JJ., concur.

our history , when the vision of judicial statemanship demanded on us

the resolution and boldness to affirm and withhold the letter and spirit
of the Constitution, we faltered. We would have prefered heroic defeat
to inglorious desertion. Rather than abandon the sacred folds of the
banner of our convictions for truth, for justice, for racial survival. We
are happy to record that this Supreme Court turned an impending
failure to a glorious success, saving our people from a looming
catastrophe.
On July 3, 1946, the case of Oh Cho vs. Director of Lands, (43 Off.
Gaz., 866), was submitted for our decision. The case was initiated in
the Court of First Instance of Tayabas on January 17, 1940, when an
alien, Oh Cho, a citizen of China, applied for title and registration of a
parcel of land located in the residential district of Guinayangan,
Tayabas, with a house thereon. The Director of Lands opposed the
application, one of the main grounds being that "the applicant, being a
Chinese, is not qualified to acquire public or private agricultural lands
under the provisions of the Constitution."
On August 15, 1940, Judge P. Magsalin rendered decision granting the
application. The Director of Lands appealed. In the brief filed by
Solicitor General Roman Ozaeta, afterwards Associate Justice of the
Supreme Court and now Secretary of Justice, and Assistant Solicitor
General Rafael Amparo, appellant made only two assignments of error,
although both raised but one question, the legal one stated in the first
assignment of error as follows:
The lower court erred in declaring the registration of the land
in question in favor of the applicant who, according to his
own voluntary admission is a citizen of the Chinese
Republic.
The brief was accompanied, as Appendix A, by the opinion of
Secretary of Justice Jose A. Santos who, while Chief Justice of the
Supreme Court, suffered heroic martyrdom at the hands of the
Japanese addressed to the Secretary of Agriculture and Commerce
on July 15, 1939, supporting the same theory as the one advanced by
the Director of Lands. The same legal question raised by appellant is
discussed, not only in the brief for the appellee, but also in the briefs of
the several amici curiae allowed by the Supreme Court to appear in the
case.
As a matter of fact, the case has been submitted for final decision of
the Supreme Court since July of 1941, that is, six years ago. It
remained undecided when the Pacific War broke out in December,
1941. After the Supreme Court was recognized in the middle of 1945, it
was found that the case was among those which were destroyed in
February, 1945, during the battle for the liberation of Manila. The case
had to be reconstituted upon motion of the office of the Solicitor
General, filed with this Court on January 14, 1946, in which it was also
prayed that, after being reconstituted, the case be submitted for final
adjudication. The case was for the second time submitted for decision
on July 3, 1946.
After the last submission, it took the Supreme Court many days to
deliberate on the case, especially on the legal question as to whether
an alien may, under the Constitution, acquire private urban lands. An
overwhelming majority answered no. But when the decision was
promulgated on August 31, 1946, a majority resolved to ignore the
question, notwithstanding our efforts to have the question, which is
vital, pressing and far-reaching, decided once and for all, to dispel
definitely the uncertainty gnawing the conscience of the people. It has
been out lot to be alone in expressing in unmistakable terms our
opinion and decision on the main legal question raised by the
appellant. The constitutional question was by-passed by the majority
because they were of opinion that it was not necessary to be decided,
notwithstanding the fact that it was the main and only legal question
upon which appellant Director of Lands relied in his appeal, and the
question has been almost exhaustively argued in four printed briefs
filed by the parties and the amici curiae. Assurance was, nevertheless,
given that in the next case in which the same constitutional question is
raised, the majority shall make known their stand on the question.

Separate Opinion
PERFECTO, J., concurring:
Today, which is the day set for the promulgation of this Court's decision
might be remembered by future generations always with joy, with
gratitude, with pride. The failure of the highest tribunal of the land to do
its duty in this case would have amounted to a national disaster. We
would have refused to share the responsibility of causing it by, wittingly
or unwittingly, allowing ourselves to act as tools in a conspiracy to
sabotage the most important safeguard of the age-long patrimony of
our people, the land which destiny of Providence has set aside to be
the permanent abode of our race for unending generations. We who
have children and grandchildren, and who expect to leave long and
ramifying dendriform lines of descendants, could not bear the thought
of the curse they may fling at us should the day arrive when our people
will be foreigners in their fatherland, because in the crucial moment of

The next case came when the present one submitted to us for decision
on February 3, 1947. Again, we deliberated on the constitutional
question for several days.
On February 24, 1947, the case was submitted for final vote, and the
result was that the constitutional question was decided against
petitioner. The majority was also overwhelming. There were eight of us,
more than two-thirds of the Supreme Court. Only three Justices
dissented.
While the decision was being drafted, somehow, the way the majority
had voted must have leaked out. On July 10, 1947, appellant Krivenko
filed a motion for withdrawal of his appeal, for the evident purpose of
preventing the rendering of the majority decision, which would settle
once and for all the all-important constitutional question as to whether
aliens may acquire urban lots in the Philippines.

Appellant chose to keep silent as to his reason for filing the motion.
The Solicitor General's office gave its conformity to the withdrawal of
the appeal. This surprising assent was given without expressing any
ground at all. Would the Supreme Court permit itself to be cheated of
its decision voted since February 24, 1947?
Discussion immediately ensued as to whether the motion should be
granted or denied, that is, whether this Court should abstain from
promulgating the decision in accordance with the result of the vote
taken on February 24, 1947, as if, after more than six years during
which the question has been submitted for the decision of the highest
tribunal of the land, the same has failed to form a definite opinion.
After a two-day deliberation, the Chief Justice, Mr. Justice Paras, Mr.
Justice Hontiveros, Mr. Justice Padilla and and Mr. Justice Tuason
voted to grant the motion for withdrawal. Those who voted to deny the
motion were Mr. Justice Feria, Mr. Justice Pablo, ourselves, Mr. Justice
Hilado and Mr. Justice Bengzon. The vote thus resulted in a tie, 5-5.
The deadlock resulting from the tie should have the effect of denying
the motion, as provided by section 2 of Rule 56 to the effect that
"where the Court in banc is equally divided in opinion . . . on all
incidental matters, the petition or motion shall be denied." And we
proposed that the rule be complied with, and the denial be
promulgated.
Notwithstanding this, as Mr. Justice Briones was then absent, our
brethren resolved to give him the opportunity of casting his vote on the
question, although we insisted that it was unnecessary. Days later,
when all the members of the Court were already present, a new vote
was taken. Mr. Justice Briones voted for the denial of the motion, and
his vote would have resulted, as must be expected, in 6 votes for the
denial against 5 for granting. But the final result was different. Seven
votes were cast for granting the motion and only four were cast for its
denial.
But then, by providential design or simply by a happy stroke of luck or
fate, on the occasion of the registration by the register of deeds of
Manila of land purchases of two aliens, a heated public polemic flared
up in one section of the press, followed by controversial speeches,
broadcast by radio, and culminating in the issuance on August 12,
1947, of Circular No. 128 of the Secretary of Justice which reads as
follows:
TO ALL REGISTER OF DEEDS:
Paragraph 5 of Circular No. 14, dated August 25, 1945, is hereby
amended so as to read as follows:
5"(a). Instruments by which private real property is
mortgaged in favor of any individual, corporation, or
association for a period not exceeding five years, renewable
for another five years, may be accepted for registration.
(Section 1, Republic Act No. 138.)
"(b). Deeds or documents by which private residential,
commercial, industrial or other classes of urban lands, or any
right, title or interest therein is transferred, assigned or
encumbered to an alien, who is not an enemy national, may
be registered. Such classes of land are not deemed included
within the purview of the prohibition contained in section 5,
Article XIII of the Constitution against the acquisition or
holding of "private agricultural land" by those who are not
qualified to hold or acquire lands of the public domain. This
is in conformity with Opinion No. 284, series of 1941, of the
Secretary of Justice and with the practice consistently
followed for nearly ten years since the Constitution took
effect on November 15, 1935.
"(c). During the effectivity of the Executive Agreement
entered into between the Republic of the Philippines and the
Government of the United States on July 4, 1946, in
pursuance of the so-called Parity Amendment to the
Constitution, citizens of the United States and corporations
or associations owned or controlled by such citizens are
deemed to have the same rights as citizens of the
Philippines and corporations or associations owned or
controlled by such are deemed to have the same rights as
citizens of the Philippines and corporations or associations
owned or controlled by citizens of the Philippines in the
acquisition of all classes of lands in the Philippines, whether
of private ownership or pertaining to the public domain."
ROMAN OZAETA
Secretary of Justice
Paragraph 5 of Circular No. 14 dated August 25, 1945, amended by
the above is as follows:

Deeds or other documents by which a real property, or a

right, or title thereto, or an interest therein, is transferred,
assigned or encumbered to an alien, who is not enemy
national, may be entered in the primary entry book; but, the
registration of said deeds or other documents shall be
denied unless and/or until otherwise specifically directed
by a final decision or order of a competent court and the
party in interest shall be advised of such denial, so that he
could avail himself of the right to appeal therefrom, under the
provisions of section 200 of the Revised Administrative
Code. The denial of registration of shall be predicated upon
the prohibition contained in section 5, Article XIII (formerly
Article XII) of the Constitution of the Philippines, and
sections 122 and 123 of Commonwealth Act No. 141, the
former as amended by the Commonwealth Act No. 615.
The polemic found echo even in the Olympic serenity of a cloistered
Supreme Court and the final result of long and tense deliberation which
ensued is concisely recorded in the following resolution adopted on
August 29, 1947:
In Krivenko vs. Register of Deeds, City of Manila, L-630, a
case already submitted for decision, the appellant filed a
motion to withdraw his appeal with the conformity of the
adverse party. After full discussion of the matter specially in
relation to the Court's discretion (Rule 52, section 4, and
Rule 58), Mr. Justice Paras, Mr. Justice Hilado, Mr. Justice
Bengzon, Mr. Justice Padilla and Mr. Justice Tuazon voted to
grant, while the Chief Justice, Mr. Justice Feria, Mr,. Justice
Pablo, Mr. Justice Perfecto and Mr. Justice Briones voted to
deny it. A redeliberation was consequently had, with the
same result. Thereupon Mr. Justice Paras proposed that Mr.
Justice Hontiveros be asked to sit and break the tie; but in
view of the latter's absence due to illness and petition for
retirement, the Court by a vote of seven to three did not
approve the proposition. Therefore, under Rule 56, section
2, the motion to withdraw is considered denied.
Mr. Justice Padilla states that in his opinion the tie could not
have the effect of overruling the previous vote of seven
against four in favor of the motion to withdraw.
Mr. Justice Paras states: Justice Hontiveros is aware of and
conversant with the controversy. He has voted once on the
motion to withdraw the appeal. He is still a member of the
Court and, on a moment's notice, can be present at any
session of the Court. Last month, when all the members
were present, the votes on the motion stood 7 to 4. Now, in
the absence of one member, on reconsideration, another
changed his vote resulting in a tie. Section 2 of Rule 56
requires that all efforts be exerted to break a deadlock in the
votes. I deplore the inability of the majority to agree to my
proposition that Mr. Justice Hontiveros be asked to
participate in the resolution of the motion for withdrawal. I
hold it to be fundamental and necessary that the votes of all
the members be taken in cases like this.
Mr. Justice Perfecto stated, for purposes of completeness of
the narration of facts, that when the petition to withdraw the
appeal was submitted for resolution of this Court two days
after this petition was filed, five justices voted to grant and
five others voted to deny, and expressed the opinion that
since then, according to the rules, the petition should have
been considered denied. Said first vote took place many
days before the one alluded to by Mr. Justice Padilla.
Mr. Justice Tuason states: The motion to withdraw the
appeal was first voted upon with the result that 5 were
granting and 5 for denial. Mr. Justice Briones was absent
and it was decided to wait for him. Some time later, the same
subject was deliberated upon and a new voting was had, on
which occasion all the 11 justices were present. The voting
stood 7 for allowing the dismissal of the appeal and 4
against. Mr. Justice Perfecto and Mr. Justice Briones
expressed the intention to put in writing their dissents.
Before these dissents were filed, about one month
afterwards, without any previous notice the matter was
brought up again and re-voted upon; the result was 5 to 5.
Mr. Justice Hontiveros, who was ill but might have been able
to attend if advised of the necessity of his presence, was
absent. As the voting thus stood, Mr. Justice Hontiveros' vote
would have changed its result unless he changed his mind, a
fact of which no one is aware. My opinion is that since there
was no formal motion for reconsideration nor a previous
notice that this matter would be taken up once more, and
since Mr. Justice Hontiveros had every reason to believe that
the matter was over as far as he was concerned, this
Justice's vote in the penultimate voting should, if he was not
to be given an opportunity to recast his vote, be counted in
favor of the vote for the allowance of the motion to withdraw.

Above all, that opportunity should not have been denied on

grounds of pure technicality never invoked before. I counted
that the proceeding was arbitrary and illegal.

away enemy attacks in war, said Delegates set the guarantees to ward
off open inroads or devious incursions into the national patrimony as a
means of insuring racial safety and survival.

The resolution does not recite all the reasons why Mr. Justice
Hontiveros did not participate in that last two votings and why it
became unnecessary to wait for him any further to attend the sessions
of the Court and to cast his vote on the question.

When the ideal of one world should have been translated into reality,
those guarantees might not be needed and our people may eliminate
them. But in the meantime, it is our inescapable devoir, as the ultimate
guardians of the Constitution, never to neglect the enforcement of its
provisions whenever our action is called upon in a case, like the one
now before us.

Appellant Krivenko moved for the reconsideration of the denial of his

withdrawal of appeal, alleging that it became moot in view of the ruling
made by the Secretary of Justice in circular No. 128, thus giving us a
hint that the latter, wittingly or unwittingly, had the effect of trying to
take away from the Supreme Court the decision of an important
constitutional question, submitted to us in a pending litigation. We
denied the motion for reconsideration. We did not want to entertain any
obstruction to the promulgation of our decision.
If the processes had in this case had been given the publicity
suggested by us for all the official actuations of this Supreme Court, it
should have been known by the whole world that since July, 1946, that
is, more than a year ago, the opinion of the members of this Court had
already been crystallized to the effect that under the Constitution,
aliens are forbidded from acquiring urban lands in the Philippines, and
it must have known that in this case a great majority had voted in that
sense on February 24, 1947.
The constitutional question involved in this case cannot be left
undecided without jeopardizing public interest. The uncertainty in the
public mind should be dispelled without further delay. While the doubt
among the people as to what is the correct answer to the question
remains to be dissipated, there will be uneasiness, undermining public
morale and leading to evils of unpredictable extent. This Supreme
Tribunal, by overwhelming majority, already knows what the correct
answer is, and should not withhold and keep it for itself with the same
zealousness with which the ancient families of the Eumolpides and
Keryces were keeping the Eleusinian mysteries. The oracle of Delphus
must speak so that the people may know for their guidance what
destiny has in store for them.
The great question as to whether the land bequeathed to us by our
forefathers should remain as one of the most cherished treasures of
our people and transmitted by inheritance to unending generations of
our race, is not a new one. The long chain of land-grabbing invasions,
conquests, depredations, and colonial imperialism recorded in the
darkest and bloodiest pages of history from the bellicose enterprises of
the Hittites in the plains of old Assyria, irrigated by the waters of the
Tigris and Euphrates, and the invasion of Egypt by the Hyksos, up to
the conquests of Hernan Cortes and Pizarro, the achievements of
Cecil Rhodes, and the formation of the Spanish, Portuguese, Dutch,
French and German colonial empires, had many of its iron links forged
in our soil since Magellan, the greatest navigator of all history, had set
foot at Limasawa and paid, for his daring enterprises, with his life at the
hands of Lapulapu's men in the battle of Mactan.
Since then, almost four centuries ago, our people have continuously
been engaged in an unrelentless struggle to defend the national
patrimony against the aggressive onslaughts of foreigners bent on
grabbing our lands. First came the Spanish encomenderos and other
gratuitous concessioners who were granted by the Spanish crown
immense areas of land. Immediately came the friars and other religious
corporations who, notwithstanding their sacred vow of poverty, felt their
greed whetted by the bountiful opportunities for easy and unscrupulous
enrichment. Taking advantage of the uncontrollable religious
leadership, on one side, and of the Christian virtues of obedience,
resignation, humility, and credulity of a people who, after conversion to
Catholicism, embraced with tacit faith all its tenets and practiced them
with the loyalty and fidelity of persons still immune from the
disappointments and bitterness caused by the vices of modern
civilization, the foreign religious orders set aside all compunction to
acquire by foul means many large estates. Through the practice of
confession and other means of moral intimidation, mostly based on the
eternal tortures of hell, they were able to obtain by donation or by will
the lands of many simple and credulous Catholics who, in order to
conquer the eternal bliss of heaven, renounced all their property in
favor of religious orders and priests, many under the guise of
chaplaincies or other apparently religious purposes, leaving in destitute
their decendants and relatives. Thus big religious landed estates were
formed, and under the system unbearable iniquities were committed.
The case of the family of Rizal is just an index of the situation, which,
under the moral leadership of the hero, finally drove our people into a
national revolution not only against the Spanish sovereignty under
which the social cancer had grown to unlimited proportions.
Profiting from the lessons of history, the Delegates to our Constitutional
Convention felt it their duty to insert in the fundamental law effective
guarantees for conserving the national patrimony, the wisdom of which
cannot be disputed in a world divided into nations and nationalities. In
the same way that scientists and technicians resorted to radar, sonars,
thermistors and other long range detection devices to stave off far-

One of the fundamental purposes of the government established by

our Constitution is, in its very words, that it "shall conserve and develop
the patrimony of the nation." That mandate is addressed to all
departments and branches of our government, without excluding this
Supreme Court. To make more specific the mandate, Article XIII has
been inserted so as to avoid all doubt that all the natural resources of
the country are reserved to Filipino citizens. Our land is the most
important of our natural resources. That land should be kept in the
hands of our people until, by constitutional amendment, they should
decide to renounce that age-long patrimony. Save by hereditary
succession the only exception allowed by the Constitution no
foreigner may by any means acquire any land, any kind of land, in the
Philippines. That was the overwhelming sentiment prevailing in the
Constitutional Convention, that was the overpowering desire of the
great majority of the Delegates, that was the dominating thought that
was intended to be expressed in the great document, that was what
the Committee on Style the drafter of the final text has written in
the Constitution, and that was what was solemnly ratified in the
plebiscite by our people, who then were rankling by the sore spot of
illegally Japanized Davao.
The urgency of settling once and forever the constitutional
question raised in this case cannot be overemphasized. If
we should decide this question after many urban lots have
been transferred to and registered in the name of alien
purchasers, a situation may be created in which it will be
hard to nullify the transfers and the nullification may create
complications and problems highly distasteful to solve. The
Georgia case is an objective lesson upon which we can
mirror ourselves. From pages 22 and 23 of the book of
Charless P. Curtiss, Jr. entitled "Lions Under the Throne," we
quote the following:
It is of interest that it seems to have happened chiefly in
important cases. Fletcher vs. Peck, in 1810, is the stock
example. That was the first case in which the Court held a
state statute void. It involved a national scandal. The 1795
legislature of Georgia sold its western lands, most of
Alabama and Mississippi, to speculators. Perhaps it was the
greatest real estate steal in our history. The purchase price
was only half a million dollars. The next legislature repealed
the statute for fraud, the bribery of legislator, but not before
the land companies had completed the deal and unloaded.
By that time, and increasingly soon afterwards, more and
more people had bought, and their title was in issue. Eleven
million of the acres had been bought for eleven cents an
acre by leading citizens of Boston. How could they clear their
title? Alexander Hamilton gave an opinion, that the repeal of
the grant was void under the Constitution as an impairment
of the obligation of a contract.
But could they not get a decision from the Supreme Court?
Robert Fletcher of Anhirst, New Hampshire, had bought
fifteen thousand acres from John Peck of Boston. He sued
Peck, and he won. Fletcher appealed. Plainly it was a
friendly suit. Marshall was nobody's fool. He told Cranch that
the Court was reluctant to decide the case "as it appeared
manifestly made up for the purpose of getting the Court's
judgment." John Quincy Adams so reports in his diary. Yet
Marshall decided it, and he held the repeal void, just as
Hamilton said it was. "The fact that Marshall rendered an
opinion, under the circumstances," says Beveridge, "is one
of the finest proofs of his greatness. A weaker man than
John Marshall, and one less wise and courageous, would
have dismissed the appeal." That may be, but it was the act
of a stateman, not of a judge. The Court has always been
able to overcome its judicial diffidence on state occasions.
We see from the above how millions of acres of land were stolen from
the people of Georgia and due to legal technicalities the people were
unable to recover the stolen property. But in the case of Georgia, the
lands had fallen into American hands and although the scandal was of
gigantic proportions, no national disaster ensued. In our case if our
lands should fall into foreign hands, although there may not be any
scandal at all, the catastrophe sought to be avoided by the Delegates
to our Constitutional Convention will surely be in no remote offing.
We conclude that, under the provisions of the Constitution, aliens are
not allowed to acquire the ownership of urban or residential lands in

the Philippines and, as consequence, all acquisitions made in

contravention of the prohibitions since the fundamental law became
effective are null and void per se and ab initio. As all public officials
have sworn, and are duty bound, to obey and defend the Constitution,
all those who, by their functions, are in charge of enforcing the
prohibition as laid down and interpreted in the decision in this case,
should spare no efforts so that any and all violations which may have
taken place should be corrected.
We decide, therefore, that, upon the above premises, appellant
Alexander A. Krivenko, not being a Filipino citizen, could not acquire by
purchase the urban or residential lot here in question, the sale made in
his favor by the Magdalena Estate, Inc. being null and void ab initio,
and that the lower court acted correctly in rendering the appealed
decision, which we affirm.
HILADO, J., concurring:
Upon appellant's motion to withdraw his appeal herein with the
conformity of the Solicitor General in behalf of appellee, indulging, at
that time, all possible intendments in favor of another department, I
ultimately voted to grant the motion after the matter was finally
deliberated and voted upon. But the votes of the ten Justices
participating were evenly divided, and under Rule 52, section 4, in
relation, with Rule 56, section 2, the motion was denied. The resolution
to deny was adopted in the exercise of the court's discretion under
Rule 52, section 4, by virtue of which it has discretion to deny the
withdrawal of the appeal even though both appellant and appellee
agree upon the withdrawal, when appellee's brief has been filed. Under
the principle that where the necessary number have concurred in an
opinion or resolution, the decision or determination rendered is the
decision or determination of the court (2 C.J.S., 296), the resolution
denying the motion to withdraw the appeal was the resolution of the
court. Pursuant to Rule 56, section 2, where the court in banc is
equally divided in opinion, such a motion "shall be denied." As a
necessary consequence, the court as to decide the case upon the
merits.
After all, a consistent advocate and defender of the principle of
separation of powers in a government like ours that I have always
been, I think that under the circumstances it is well for all concerned
that the Court should go ahead and decide the constitutional question
presented. The very doctrine that the three coordinate, co-equal and
independent departments should be maintained supreme in their
respective legitimate spheres, makes it at once the right and duty of
each to defend and uphold its own peculiar powers and authority.
Public respect for and confidence in each department must be striven
for and kept, for any lowering of the respect and diminution of that
confidence will in the same measure take away from the very
usefulness of the respective department to the people. For this reason,
I believe that we should avert and avoid any tendency in this direction
with respect to this Court.
I am one of those who presume that Circular No. 128, dated August
12, 1947, of the Secretary of Justice, was issued in good faith. But at
the same time, that declaration in sub-paragraph (b) of paragraph 5 of
Circular No. 14, which was already amended, to the effect that private
residential, commercial, industrial or other classes of urban lands "are
not deemed included within the purview of the prohibition contained in
section 5, Article XIII, of the Constitution", made at a time when the
self-same question was pending decision of this Court, gives rise to the
serious danger that should this Court refrain from deciding said
question and giving its own interpretation of the constitutional mandate,
the people may see in such an attitude an abandonment by this Court
of a bounden duty, peculiarly its own, to decide a question of such a
momentous transcedence, in view of an opinion, given in advance of
its own decision, by an officer of another department. This will naturally
detract in no small degree from public respect and confidence towards
the highest Court of land. Of course, none of us the other
governmental departments included would desire such a situation to
ensue.
I have distinctively noticed that the decision of the majority is confined
to the constitutional question here presented, namely, "whether or not
an alien under our Constitution may acquire residential land." (Opinion,
p. 2) Leases of residential lands, or acquisition, ownership or lease of a
house or building thereon, for example, are not covered by the
decision.
With these preliminary remarks and the statement of my concurrence
in the opinion ably written by the Chief Justice, I have signed said
decision.
BRIONES, M., conforme:
Estoy conforme en un todo con la ponencia, a la cual no e puede
aadir ni quitar nada, tal es su acabada y compacta elaboracion.
Escribo, sin embargo, esta opinion separada nada mas que para unas

observaciones, particularmente sobre ciertas fases extraordinarias de

este asunto harto singular y extraordinario.
I. Conforme se relata en la concurrencia del Magistrado Sr. Perfecto,
despues de laboriosas deliberaciones este asunto se puso finalmente
a votacion el 24 de Febrero de este ao, confirmandose la sentencia
apelada por una buena mayoria. En algunos comentarios adelantados
por cierta parte de la prensa impaciencia que solo puede hallar
explicacion en un nervioso y excesivo celo en la vigilancia de los
intereses publicos, maxime tratandose, como se trata, de la
conservacion del patrimonio nacional se ha hecho la pregunta de
por que se ha demorado la promulgacion de la sentencia, habiendose
votado el asunto todavia desde case comienzos del ao.
A simple vista, la pregunta tiene justificacion; pero bien considerados
los hechos se vera que no ha habido demora en el presente caso,
mucho menos una demora desusada, alarmante, que autorice y
justifique una critica contra los metodos de trabajo de esta corte. El
curso seguido por el asunto ha sido normal, bajo las circunstancias.
En realidad, no yan en esta Corte ahora, sino aun en el pasado, antes
de la guerra, hubo mas lentitud en casos no tan dificiles ni tan
complicados como el que nos ocupa, en que las cuestiones
planteadas y discutidas no tenian la densidad constitucional y juridica
de las que se discuten en el presente caso. Hay que tener en cuenta
que desde el 24 de Febrero en que se voto finalmente el asunto hasta
el 1.0 de Abril en que comenzaron las vacaciones judiciales, no habian
transcurrido mas que 34 dias; y cuando se reanudaron formalmente
las sesiones de esta Corte en Julio se suscito un incidente de lo mas
extraordinario incidente que practicamente vino a impedir, a
paralizar la pronta promulgacion de la sentencia. Me refiero a la
mocion que el 10 de Julio persentaron los abogados del apelante
pidiendo permiso para retirar su apelacion. Lo sorpredente de esta
mocion es que viene redactada escuetamente, sin explicar el por que
de la retirada, ni expresar ningun fundamento. Pero lo mas
sorpredente todavia es la conformidad dada por el Procurador
General, tambien escueta e inceremoniosamente.
Digo que es sorprendente la retirada de la apelacion porque pocos
casos he visto que hayan sido arguidos con tanta energiaa, tanto
interes y tanto celo por la parte apelante como este que nos ocupa.
Los abogados del apelante no solo presentaron un alegato
concienzudo de 34 paginas, sino que cuando se llamo a vista el
asunto informaron verbalmente ante esta Corte argumentando
vigorosa y extensamente sobre el caso. El Procurador General, por su
parte, ha presentado un alegato igualmente denso, de 31 paginas, en
que se discuten acabadamente, hasta el punto maximo de saturacion
y agotamiento, todos los angulos de la formidable cuestion
constitutional objeto de este asunto. Tambien informo el Procurador
General verbalmente ante esta Corte, entablando fuerte lid con los
abogados del apelante.
Con la mocion de retirada de la apelacion se hubo de retardar
necesariamente la promulgacion de la sentencia, pues trabajosas
deliberaciones fueron necesarias para resolver la cuestion,
dividiendose casi por igual los miembros de la Corte sobre si debia o
no permitirse la retirada. Habia unanimidad en que bajo la regla 52,
seccion 4, del Reglamento de los Tribunales teniamos absoluta
discrecion para conceder o denegar la mocion, toda vez que los
alegatos estaban sometidos desde hacia tiempo, el asunto estaba
votado y no faltaba mas que la firma y promulgacion de la decision
juntamente con las disidencias. Sin embargo, algunos Magistrados
opinaban que la discrecion debia ejercitarse en favor de la retirada en
virtud de la practica de evitar la aplicacion de la Constitucion a la
solucion de un litigio siempre que se puede sentenciarlo de otra
manera. (Entre los Magistrados que pensaban de esta manera se
incluian algunos que en el fundo del asunto estaban a favor de la
confirmacion de la sentencia apelada, es decir, creian que la
Constitucion prohibe a los extranjeros la adquisicion a titulo dominical
de todo genero de propiedad inmueble, sin excluir los solares
residenciales, comerciales e industriales.) Pero otros Magistrados
opinaban que en el estado tan avanzado en que se hallaba el asunto
los dictados del interes publico y de la sana discrecion requerian
imperiosamente que la cuestion se atacase y decidiese frontalmente;
que si una mayoria de esta Corte estaba convencida, como al parecer
lo estaba, de que existia esa interdiccion constitucional contra la
facultad adquisitiva de los extranjeros, nuestro claro deber era
apresurarnos a dar pleno y positivo cumplimiento a la Constitucion al
presentarse la primera oportunidad; que el meollo del asunto, la
lis mota era eso la interdiccion constitucional ; por tanto, no
habia otra manera de decidirlo mas que aplicando la Constitucion;
obrar de otra manera seria desercion, abandono de un deber jurado.
Asi estaban las deliberaciones cuando ocurre otro incidente mucho
mas extraordinario y sorprendente todavia que la retirada no explicada
de la apelacion con la insolita conformidad del Procurador General;
algo asi como si de un cielo sereno, sin nubes, cayera de pronto un
bolido en medio de nosotros, en medio de la Corte: me refiero a la
circular num. 128 del Secretario de Justicia expedida el 12 de Agosto
proximo pasado, esto es, 32 dias despues de presentada la mocion de
retirada de la apelacion. Esa circular se cita comprensivamente en la
ponencia y su texto se copia integramente en la concurrencia del

Magistrado Sr. Perfecto; asi que me creo excusado de transcibirla in

toto. En breves terminos, la circular reforma el parrafo 5 de la circular
num. 14 del mismo Departamento de Justicia de fecha 25 de Agosto,
1945, y levanta la prohibicion o interdiccion sobre el registro e
inscripcion en el registro de la propiedad de las "escrituras o
documentos en virtud de los cuales terrenos privados residencias,
comerciales, industriales u otras clases de terrenos urbanos, o
cualquier derecho, titulo o interes en ellos, se transfieren, ceden o
gravan a un extranjero que no es nacional enemigo." En otras
palabras, el Secretario de Justicia, por medio de esta circular dejaba
sin efecto la prohibicion contenida en lacircular num. 14 del mismo
Departamento la prohibicion que precisamente ataca el apelante
Krivenko en el asunto que tenemos ante Nos y authorizaba y
ordenaba a todoslos Registradores de Titulos en Filipinas para que
inscribiesen las escrituras o documentos de venta, hipoteca o
cualquier otro gravamen a favor de extranjeros, siempre que no se
tratase de terrenos publicos o de "terrenos privados agricolas," es
decir, siempre que los terrenos objeto de la escritura fuesen
"residenciales, comerciales e industriales."
La comparacion de esa circular con un bolido caido subitamenteen
medio de la Corte no es un simple tropo, no esuna mera imagen
retorica; refleja una verdadera realidad.Esa circular, al derogar la
prohibicion decretada en elparrafo 5 de la circular num. 14
prohibicion que, comoqueda dicho, es precisamente el objeto del
presente asunto venia practicamente a escamotear la cuestion
discutida, lacuestion sub judice sustrayendola de la jurisdiccion de
lostribunales. Dicho crudamente, el Departamento de Justiciavenia a
arrebatar el asunto de nuestras manos, delas manos de esta Corte,
anticipandose a resolverlo por simismo y dando efectividad y vigor
inmediatos a su resolucionmediante la correspondiente autorizacion a
los Registradoresde Titulos.
A la luz de esa circular queda perfectamente explicadala mocion de
retirada de la apelacion consentida insolitamentepor el Procurador
General. Para que esperar ladecision de la Corte Suprema que
acaso podria ser adversa? No estaba ya esa circular bajo la cual
podian registrarseahora la ventas de terrenos residenciales,
comerciales oindustriales a extranjeros? Por eso no es extrao quelos
abogados del apelante Krivenko, en su mocion de 1.0 de Septiembre,
1947, pidiendo la reconsideracion de nuestroauto denegando la
retirada de la apelacion, dijeran porprimera vez como fundamento que
la cuestion ya era simplemente academica ("question is now moot") en
vista deesa circular y de la conformidad del Procurador Generalcon la
retirada de la apelacion. He aqui las propias palabras de la mocion del
apelante Krivenko:
In view of Circular No. 128 of the Department of Justice,
dated August 12, 1947, which amends Circular No. 14 by
expressly authorizing the registration of the sale of urban
lands to aliens, and in view of the fact that the Solicitor
General has joined in the motion for withdrawal of the
appeal, there is no longer a controversy between the parties
and the question is now moot. For this reason the court no
longer has jurisdiction to act on the case.1
Lo menos que se puede decir de esa accion del Departamentode
Justicia atravesandose en el camino de los tribunalesmientras un
asunto esta sub judice, es que ello no tieneprecedentes, que yo sepa,
en los anales de la administracionde justicia en Filipinas en cerca de
medio siglo que llevamosde existencia bajo un gobierno constitucional
y sustancialmente republicano. Ni aun en los llamados dias del
Imperio, cuando la soberania americana era mas propensa a manejar
el baston grueso y afirmar vigorosamente losfueros de su poder y
autoridad, se vio jamas a un departamento de Justicia o a alguna de
sus dependencias entrometerseen el ejercicio ordenado por los
tribunales de sujurisdiccion y competencia. Era una tradicion
firmamenteestablecida en las esfersas del Poder Ejecutivo
tradicioninviolada e inviolable maxime en el Departamento de
Justicia y en la Fiscalia General, el inhibirse de expresar algunaopinion
sobre un asunto ya sometido a los tribunales, excepto cuando venian
llamados a hacerlo, en representaciondel gobierno, en los tramites de
un litigio, civil o criminal,propiamente planteado ante dichos tribunales.
Fuera deestos casos, la inhibicion era tradicionalmente
absoluta,observada con la devocion y la escrupulosidad de un rito.Y la
razon era muy sencilla: hamas se queria estorbar nientorpecer la
funcion de los tribunales de justicia, loscuales, bajo la carta organica y
las leyes, tenian absolutoderecho a actuar con maximo desembarazo,
libres de todaingerencia extraa. Esto se hizo bajo la Ley Cooper;
estose hizo bajo la Ley Jones; y esto se hizo bajo la Ley TydingsMcDuffie, la ley organica del Commonwealth. Creo que el pueblo
filipino tiene derecho a que eso mismo se haga bajo el gobierno de la
Republica, que es suyo, que es de su propia hechura. No faltaba
mas que los hombres de su propia raza le nieguen lo que no le
negaron gobernantesde otra raza!
No se niega la facultad de supervision que tiene el Departamento de
Justicia sobre las oficinas y dependenciasque caen bajo su
jurisdiccion, entre ellas las varias oficinasde registro de la propiedad
en Manila y en las provincias.Tampoco se niega la facultad que tiene
dicho Departamentopara expedir circulares, ya de caracter puramente

administrativo,ya de caracter semijudicial, dando instrucciones,vgr., a

los registradores acerca de como deben desempenarsus funciones.
De hecho la circular num. 14 de 25 deAgosto, 1945, es de esta ultima
naturaleza: en ella seinstruye y ordena a los registradores de titulos
que noregistren ni inscriban ventas de propiedad inmueble
aextranjeros, asi sean terrenos residenciales, comerciales
oindustriales. Pero la facultad llega solo hasta alli; fuerade esas
fronteras el campo ya es pura y exclusivamentejudicial. Cuando una
determinada circular del Departamentoa los registradores es
combatida o puesta en telade juicio ante los tribunales, ora por
fundamentosconstitucionales, ora por razones meramente legales, ya
no esel Departamento el que tiene que determinar o resolverla
disputa, sino que eso compete en absoluto a los tribunalesde justicia.
Asi lo dispone terminantemente el articulo200 del Codigo
Administrativo. Segun este articulo, elasunto o disputa debe elevarse
en forma de consulta a la Sala Cuarta del Juzgado de Primera
Instancia de Manila.La ley no confiere ninguna facultad al
Departamento deJusticia para enjuiciar y decidir el caso. Y cuando
unaparte no estuviere conforme con la decision de la SalaCuarta, ella
puede alzarse de la sentencia para ante laCorte Suprema. He aqui el
texto integro del articulo 200 del Codigo Administrativo:
SEC. 200. Reference of doubtful matter to judge of fourth
branch of Court of First Instance at Manila. When the
register of deeds is in doubt with regard to the proper step to
be taken or memorandum to be made in pursuance of any
deed, mortgage, or other instrument presented for
registration or where any party in interest does not agree
with the register of deeds with reference to any such matter,
the question shall be referred to the judge of the fourth
branch of the Court of First Instance of the Ninth Judicial
District either on the certificate of the register of deeds
stating the question upon which he is in doubt or upon the
suggestion in writing of the party in interest; and thereupon
said judge, upon consideration of the matter as shown by the
record certified to him, and in case of registered lands, after
notice to the parties and hearing, shall enter an order
prescribing the step to be taken or memorandum to be
made.
Tal es lo que ha ocurrido en el presente caso. Krivenkopresento su
escritura de compraventa al Registrador de laPropiedad de Manila.
Este denego la inscripcion solicitadaen virtud de la prohibicion
contenida en la circular num.14. Que hizo Krivenko entonces? Elevo
acaso el asuntoal Departamento de Justicia? No. Lo que hicieron
susabogados entonces fue presentar una demanda el 23 de
Noviembre, 1945, contra el Registrador de Titulos ante laSala Cuarta
del Juzgado de Primera Instancia de Manila,numerandose dicha
demanda como consulta num. 1289; ycuando esta Sala decidio el
asunto confirmando la acciondel Registrador, Krivenko trajo a esta
Corte la apelacionque estamos considerando. Tan elemental es esto
que enla misma circular num. 14 se dice que la prohibicion
quedadecretada hasta que los tribunales resuelvan lo contrario. He
aqui la fraseologia pertinente de dicha circularnum. 14:
. . . the registration of said deeds or other documents shall
be denied, unless and /or until otherwise specifically
directed by a final decision or order of a competent court
and the party in interest shall be advised of such denial, so
that he could avail himself of the right to appeal therefrom,
under the provisions of section 200 of the Revised
Administrative Code.
La posicion de la Corte Suprema ante este caso claro ypositivo de
intromision (interference) en sus funciones esde lo mas peculiar.
Tenemos en el Reglamento de losTribunales algunas disposiciones
que proveen sancion pordesacato para ciertos actos de intromision en
el ejercicio de lasfunciones judiciales.2 Pero se preguntara
naturalmente;son aplicables estas disposiciones cuando la
intromisionprocede de un ramo del poder ejecutivo, el cual, como
sesabe, en la mecanica de los poderes del Estado, es usandoun
anglicismo-coigual y coordinado con el poder judicial,maxime si esa
intromision se ha realizado so capa de unacto oficial? Cualquiera,
pues, puede imaginarse la situaciontremendamente embarazosa,
inclusive angustiosa enque esta Corte ha quedado colocada con
motivo de esa intromision departamental, exponiendose a chocar con
otropoder del Estado. En casos recientes en que estaban envueltos
otros poderes, esta Corte, estimando dudosa suposicion
constitucional, prefirio adoptar una actitud deelegante inhibicion, de
"manos fuera" (hands-off), si bienhay que hacer constar que con la
fuerte disidencia dealgunos Magistrados, entre ellos el
opinante.3 Tenemos, portanto, un caso de verdadera intromision en
que siendo, porlo menos, dudosa la facultad de esta Corte para
imponeruna sancion por desacato de acuerdo con el Reglamento
delos Tribunales, le queda el unico recurso decente,
ordenado:registrar su excepcion sin ambages ni eufemismos contrala
intromision, y reafirmar con todo vigor, con toda firmezasu
independencia.
Se arguye con tenaz persitencia que debiamos de haberconcedido la
mocion de retirada de la apelacion, por dosrazones: (a) porque el

Procurador General estaba conformecon dicha retirada; (b) para evitar

la resolucion delpunto constitucional envuelto, en virtud de la
practica,segun se dice, de soslayar toda cuestion
constitucionalsiempre que se pueda. Respecto de la primera razon
serasuficiente decir que el Procurador General es libre de entraren
cualquiera transaccion sobre un asunto en que interviene,pero es
evidente que su accion no ata no obliga aesta Corte en el ejercicio de
la discrecion que le confierela regla, 52, seccion 4, del Reglamento de
los Tribunales,que reza como sigue:
Rule 52, SEC. 4 An appeal may be withdrawn as of right
at any time before the filing of appelle's brief.After that brief
is filed the withdrawal may be allowed by the court in its
discretion. . . . (Las cursivas son nuestras.)
Como se ve, nuestra discrecion es absoluta:no estacondicionada por
la conformidad o disconformidad de una delas partes. Y la
incondicionalidad de esa discrecion es masabsoluta e imperativa alli
donde el litigio versa sobre unamateria queno afecta solo a un interes
privado, sino quees de interes publico, como el caso presente en que
el Procurador General ha transigido no sobre un asunto suyopersonal
o de un cliente particular, sino de un cliente demucha mayor monta y
significacion el pueblo filipino ysiendo materia del litigio la
propiedad del suelo, parte, vitalisima del patrimonio nacional que
nuestro pueblo hacolocado bajo la salvaguardia de la Constitucion.
Respecto del segundo fundamento, o se que debiamospermitir la
retirada dela apelacion para no tener queresolver la cuestion
constitucional disputada, bastara decirque la practica, prinsipio o
doctrina que se invoca, llevaconsigo una salvedad o cualificacion y es
que el litigio se pueda resolver de otra maera. Podemos soslayar
elpunto constitucional discutido en el pleito que nos ocupa?
Podemos decidirlo bajo otra ratio decidendi, esto es, queno sea la
constitucionalidad o inconstitucionalidad de laventa del inmueble al
apelante Krivenko, en virtud desucondicion de extranjero?
Indudablemente que no: la lis mota, la unica, es la misma
constitucionalidad de la compraventa de que se trata. Para decidir si al
recurrido apelado, Registrador de Titulos de la Ciudad de Manila,le
asiste o no razon para denegar la inscripcion solicitada por el
recurrente y apelante, Krivenko, la unica disposicionlegal que se
puede aplicar es el articulo XIII, seccion 5, dela Constitucion de
Filipinas, invocado por el Registrador como defensa e inserto en el
parrafo 5 de la circular num.14 como fundamento de la prohibicion o
interdiccion contrael registro de las ventas de terreno a extranjeros.
Nohay otra ley para el caso.
El caso de Oh Cho contra el Director de Terrenos43 Gac. Of., No. 3
pag. 866), que se cita en unade las disidencias, es completamente
diferente. Es verdadque alli se planteo tambien la cuestion
constitucional de quese trata, por cierto que el que lo planteaba en
nombre delGobierno era el actual Secretario de Justicia que
entoncesera Procurador General, y lo pleantaba en un sentido
absolumente concorde con la circular num. 14. Pero esta Corte, con la
disidencia de algunos Magistrados, opto porsoslayar el punot
constitucional denegando el registro solicitadopor Oh Cho, por
fundamento de que bajo la LeyNo. 2874 sobre terrenos de dominio
publico los extranjerosestan excluidos de dichos terrenos; es decir,
que el terrenosolicitado se considero como terreno publico.
Podemos hacer la misma evasion en el presente caso,
acogiendonosa la ley No. 2874 o a cualquier otra ley? Indudablemente
que no porque ningun Magistrado de esta Corte, muchomenos los
disidentes, consideran el terreno reclamado por Krivenko como terreno
publico. Luego todos los caminosestan bloqueados para nosotros,
menos el camino constitucional.Luego el segundo fundamento
alegado paracubrir la evasiva tambien debe descartarse totalmente.
Se insinua que no debiamos darnos prisa en
resolver constitucionalmente el presente asunto, puesto que
puedenpresentarse otros de igual naturaleza en tiempo no remoto,y en
efecto se cita el caso de Rellosa contraGaw Chee Hun(49 Off. Gaz.,
4345), en que los alegatos de ambas partesya estan sometidos y se
halla ahora pendiente de decision.Es evidente que esto tampoco
arguye en favor de la evasiva,en primer lugar, porque cuando se le
somete el deber de iraveriguando en su Escribania si hay casos de
igual naturaleza, sino que los casos se someten por orden de
prelaciony prioridad de tiempo a medida que esten preparados
paracaso debe decidirse por sus propios meritos y conforme ala ley
pertinente. La salvedad o cualificacion de la doctrinao practica que se
invoca no dice: "hay qoe soslayar la cuestionconstitucional siempre
que se pueda resolver deotra manera, reservando dicha cuestion
constitucional para otro caso; la salvedad es dentro del mismo caso.
De otro modono seria un simple soslayo legal, sino que seria
unsub terfugio impropio, indebido, ilegal. En el presente caso no ha
habido ninguna prisa, excesivo celo, como se insinua;desde luego no
mayor prisa que en otros asuntos. Elcurso, el ritmo de los tramites ha
sido normal; en realidad,si ha habido algo, ha sido un poco de
parsimonia, lentitud.
Habia justificacion para demorar el pronto, rapido pronunciamento
de nuestro veredicto sobre la formidablecuestion constitucional

debatida, por lo menos, tan pronto como fuese posible? Habia

alguna razon de interespublico para justificar una evasiva?
Absolutamenteninguna. Por el contrario, nuestro deber ineludible,
imperioso,era formular y promulgar inmediatamente ese veredicto. Lo
debiamos a nuestras conciencias; lo debiamos, sobretodo, al pais para
la tranquilidad y conveniencia de todos del pueblo filipino y de los
extranjeros residentes o quetuvieren voluntad de residir o negociar en
estas Islas. Asicada cual podria hacer su composicion de lugar,
podriaorientarse sin zozobras ni miedo a la incertidumbre.
Tantonacionales como extranjeros sabrian donde invertir sudinero.
Todo lo que necesitabamos era tener dentro de esta Corte una provee
la interdiccion de que se trata. Tuvimosesa mayoria cunado se voto
por primera vez este asuntoen Febrero de este ao (8 contra 3); la
tuvimos cuandodespues de laboriosas deliberaciones quedo
denegada lamocion de retirada de la mayoria haya cambiado de
opinionsobre el fondo de la cuestion; la tenemos ahora
naturalmente.Por tanto, nada hace falta ya para que se de lasenal de
"luz verde" a la promulgacion de la sentencia.Toda evasiva seira
neglignecia, desidia. Es mas: seriaabandono de un deber jurado,
como digo en otra parte deesta concurrencia; y la Corte Suprema
naturalmente npha de permitir que se la pueda proferir el cargo de
queha abandonado su puesto privilegiado de vigia, de centinela
avanzado de la Constitucion.
No es que la Corte Suprema, con esto, pretenda tener"un monopolio
de la virtud de sostener y poner en vigor,o de suplir una deficiencia en
la Constitucion," o que segobierno, como se insinua en una de las
disidencias. Nohay tal cosa. El principio de la supremacia judicial no
esuna pretension ni mucho menos un ademan de inmodestiao
arrogancia, sino que es una parte vital de nuestrasinstutuciones, una
condicion peculiarisima de nuestro sistema de gobierno en que la
judicatura, como uno de lostres poderes del Estado, corresponde la
facultad exclusivade disponer de los asuntos judiciales. Con respecto
a losasuntos de registro particularmente esa facultad exclusivano solo
se infiere del principio de la supremacia judicial, sino que, como ya se
ha dicho en otra parte de esta concurrencia,se halla especificamente
estutuida en el articulo 200del Codigo Administrativo transcrito arriba.
Este articuloconfiere jurisdiccion exclusiva a los tribunales de
justiciapara decidir las cuestiones sobre registro, y esto lo ha
reconocido el mismo Departamento de Justicia en su circularnum. 14
al referir tales cuestiones a la determinacion oarbitrio judicial en casos
de duda o litigio.
Es injustificada la insinuacion de que, al parecer, la mayoria denego la
retirada de la apelacion no tanto para resolver el asunto en su fondo o
por sus meritos, como paraenrvar los efectos de la circular num. !28
del Departamentode Justicia, pues Krivenko, el apelante,
habriaganado entonces su pleito no en virtud de una sentenciajudicial,
sino pasando por la puerta trasera abierta por esacircular. Tampoco
hay tal cosa. Ya repetidas veces seha dicho que el presente asunto se
habia votado muchoantes de que se expidiese esa circular. Lo que
mascorrectamente podria decirse es que antes de la expedicion deesa
desafortunada circular poderosas razones de interespublico
aconsejaban que se denegase la retirada de la apelacion y se diese fin
al asunto mediante una sentencia enel fondo, despues de la expidicion
esas razones quedaroncentuplicadas. La explicacion es sencilla:
nuestra aquiescenciaa la reirada hubiera podico interpretarse
entoncescomo que nuestra jurisdiccion. Es mas: hubiera
podidointerpretarse como una abyecta rendicion en la pugna
porsostener los fueros de cada ramo coigual y coordinado del
gobierno.
Es todavia mas injustificada la insinuacion de que ladenegacion de la
retirada de la apelacion equivale "a asumir queel solicitante-apelante y
el Procurador General sehan confabulado con el Departamento de
Justicia no solopara ingerirse en las funciones de esta Corte, sino
paraenajenar el patrimonio nacional a los extranjeros." Estoes
inconcebible. La corte presume que todos han obradode buena fe, de
acuerdo con los dictados de su conciencia.Se ha denegado la retirada
de la apelacion por razonespuramente juridicas y objectivas, sin
consideracion a losmotivos de nadie.
Por ultimo, estimo que debe rectificarse la asercion de queel
Magistrado Hontiveros fue excluido de la votacion queculmino en un
emmpate y que determino el rechazamientode la retirada de la
apelacion, a tenor de la regla 56, seccion2, Reglamento de los
Tribunales. El Magistrado Hontiverosno estaba presente en la sesion
por estar enfermo;pero estaban presentes 10 Magistrados, es decir,
mas queel numero necesario para formar quorum y para despacharlos
asuntos. La rueda de la justicia en la Corte Supremajamas ha dejado
de rodar por la ausencia de uno o dosmiembros, siempre que
hubiese quorum. A la votacionprecedieron muy laboriosas y vivas
deliberaciones. Ningun Magistrado Ilamo la atencion de la Corte hacia
la ausencia del Sr. Hontiveros. Ningun Magistrado pidio que se
leesperase o llamase al Sr. Hontiveros. Todos se conformaroncon que
se efectuase la votacion, no obstante la ausencia del Sr. Hontiveros.
En efecto, se hace la votaciony resulta un empate, es decir, 5 contra 5.
De acuerdo conla regla 56, quedaba naturalmente denegrada la
mocion deretirada. Donde esta, pues, la "ilegalidad", donde
la"arbitrariedad"?

Algunos dias despues se presento una mocion de reconsideracion,la

misma en que ya se alegaba como ndamentoel hecho de que la
cuestion era simplemente academica (moot question) por la
conformidad del Procurador Generalcon la retirada y por la circular
num. !28 del Departamento de Justicia. Tampoco estaba presente el
Sr. Hontiverosal someterse la mocion, la cual fue de nuevo
denegada.Pregunto otra vez: donde esta la "arbitrariedad"?
Queculpa tenia la Corte de que el Sr. Hontiveros no pudieraestar
presente por estar enfermo? Iba a detenerse larueda de la justicia
por eso? Conviene, sin embargo, hacerconstar que sobre el fondo de
la cuestion el Sr. Hontiverosera uno de los 8 que habian votado en
favor de la confirmacion de la sentencia apelada, es decir, en favor
delveredicto de que la Contitucion excluye a los extrajerosde la
propiedad de bienes raices en Filipinas.
II. No queda casi nada decir sobre el fondo de lacuestion. Todos los
angulos y fases de la misma estanacabadamente tratados y discutidos
en la ponencia. Melimitare, por tanto, a hacer unas cuantas
observaciones,unas sobre hermeneutica legal, y otra sobre historia
nacionalcontemporanea, aprovachando en este ultimo respectomis
reminiscencias y mi experiencia como humilde miembroque fui de la
Asamblea Constituyente que redacto y arobola Constitucion de
Filipinas.
Toda la cuestion, a mi juicio, se reduce a determinar einterpretar la
palabra "agricola" (agricultural) usada enel articulo XIII, seccion 5, de
la Constitucion. He aqui eltexto completo de la seccion:
SEC. 5. Save in cases of hereditary succession, no
private agricultural land shall be transferred or assigned
except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain in the
Philippines.
Incluye la palabra "agricultural" aqui empleada los
terrenosresidenciales, comerciales e industriales? Tal es lacuestion: la
mayoria de esta Corte que si; los disidentesdicen que no.
Es indudable que por razones sanas de hermenuetica legalel articulo
XIII de que se trata debe interpretarse como untodo homogeneo,
simetrico. En otras palabras, los cocablosalli empleados deben
interpretarse en el sentido de quetienen un mismo significado. Es
absurdo pensar o suponerque en el texto de una ley, sobre todo dentro
del estrechomarco de un articulo, un vocablo tenga dos o mas
significadosdistintos, a menos que la misma ley asi to diga
expresamente. Lapresuncion es que el legislador sigue y seatiene a
las reglas literarias elementales.
Ahora bien: el articulo XIII consta de dos partes laprimera, que trata
de los terrenos agricolas de dominiopublico, y la segunda, que se a los
terrenos agricolaprivados o partuculares.
La primera parte se compone de las secciones 1 y 2que vinculanla
propiedad de los terrenos publicos enel Estado y disponen que solo se
pueden enajenar a favorde ciudadanos filipinos, o de corporaciones o
asociacionesen que el 60 por ciento del cacital, por lo menos,
pertenecea tales ciudadanos. En secciones se emplea literalmentela
frase "public agricultural land."
La segunda parte la componen las secciones 3 y 5: laseccion 3
perceptua que "the Congress may determine bylaw the size of private
agricultural land which individuals,coporations, or associations may
acquire and hold, subjectto rights existing prior to the enactment of
such law"4 ;y la seccion 5 es la que queda transcrita mas arriba y
esobjeto del presente litigio. En ambas secciones se
emplealiteralmente la frase "private agricultural land."
No hay ninguna cuestion de que la frase "public agriculturalland"
empleada en la primera parte comprende terrenosresidenciales,
comerciales e industriales; lo admitenlos mismos abogados del
apelante y los Sres. Magistradosdisidentes. Y por que lo admiten?
Sera porque en laConstitucion se define la palabra "agricultural"
aplicadaa terrenos publicos, en el sentido de incluir
solaresresidenciales, comerciales e industriales? Indudablementeque
no, porque en ninguna parte de la Constitucion se datal definicion. Lo
admiten porque en esta jurisdicciontenemos una serie consistente de
sentencias de esta CorteSuprema en que es jurisprudencia
firmamente establecidala doctrina de que la palabra "agricultural"
usada en laLey del Congreso de los Estados Unidos de 1902
(LeyCooper) y en nuestras leyes de terrenos publicos comprendey
abarca solares residenciales, comerciales, industriales yqualquier otra
clase de terrenos, excepto forestales yminerales.5 Es decir, que se
aplica a la actual Constitucion deFilipinas una interpretacion clasica,
tradicional, embebidaen nuestra jurisprudencia de cerca de medio
siglo.
Ahora bien, pregunto: si la palabra "agricultural" empleadaen la
primera parte del articulo XIII tiene talsignificado y lo tiene porque la

Constitucion no da otrodiferente por que esa misma palabra

empleada en lasegunda parte, unas cuantas lineas mas adelante, no
hade tener el mismo significado? Da acaso la Constitucionuna
definicion de la palabra "agricultural" cuandose refiere a terreno
privado? Donde esta esa definicion? O es que se pretende que la
diferenciacion opera no envirtud de la palabra "agricultural", sino en
virtud delvocablo "public" o "private", segun que se trate de
terrenopublico o privado?
Si la intencion de la Asemblea Constituyente fuera eldar a la palabra
"agricultural" aplicada a terreno privadoun significado distinto de
cuando se refiere a terreno publico, lo hubiese hecho constar asi
expresamente en elmismo texto de la Constitucion Si, como se admite,
laAsemblea opto por no definir la palabra "agricultural"aplicada a
terreno poblico porque contaba para ello con ladefinicion clasica
establecida en la jurisprudencia, cuandola misma Asemblea tampoco
definio la palabra con relaciona terreno privado, es logico inferir que
tuvo la mismaintencion, esto es, aplicar la definicion de la
jurisprudenciaa ambos tipos de terreno el publico y el privado.
Pensarde otra manera podria ser ofensivo, insultante; podriaequivaler
a decir que aquella Asemblea estaba compuestade miembros
ignorantes, desconocederos de las reglas elementalesen la tecnica de
redaccion legislativa.
Tuve el honor de partenecer a aquella Asemblea comouno de los
Delegados por Cebu. Tambien me cupo elhonor de partenecer al
llamado Comite de Siete elcomite encargado finalmente de redactar
la ponencia dela Constitucion. No digo que aquella Asemblea
estabacompuesta de sabios, pero indudablemente no era inferiora
ninguna otra de su tipo en cualquiera otra partedel mundo. Alli habia
un plantel de buenos abogados,algunos versados y especialistas en
derecho constitucional.Alli estaba el Presidente de la Universidad de
FilipinasDr. Rafael Palma; alli estaba el propio Presidentede la
Asemblea Constituyente Hon. Claro M. Recto, conlos prestigios de su
reconocida cultura juridica y humanista; alli estaba tambien el Dr. Jose
P. Laurel, considerado comouna de las primeras autoridades en
derecho constitucionaly politico en nuestro pais. En el Comite de Siete
o dePonencia figuraban el actual Presidente de Filipinas Hon.Manuel
Roxas; el ex-Senador de Cebu Hon. Filemon Sotto;el Hon. Vicente
Singson Encarnacion, lider de la minoria en la primera Asemblea
Filipina, ex-miembro de la Comisionde FIlipinas, ex-Senador y exSecretario de Gabinete;el ex-Magistrado de la Corte Suprema Hon.
NorbertoRomualdez; el actual Secretario de Hacienda Hon.
MiguelCuaderno; y el ex-Decano del Colegio de Artes Liberalesde la
Universidad de Filipinas, Hon. Conrado Benitez.
No se puede concebir como bajo la inspiracion y guiade estas
personas pudiera redactarse el texto de un articuloenque un vocablo
el vocablo "agricultural" tuviera dosacepciones diferentes: una,
aplicada a terrenos publicos;y otra, aplicada a terrenos privados.
Menos se concibeque, si fuese esta la intencion, se incurriese en una
comisionimperdonable: la omision de una definicion especifica,
diferenciadora, que evitase caos y confusion en la mente delos
abogados y del publico. Teniendo en cuenta la innegablecompetencia
de los Delegados a la Asemblea Constituyentey de sus liders, lo mas
logico pensar es que alno definir la palabra "agricultural" y al no
diferenciarsu aplicacion entre terrenos publicos y privados, lo
hicierondeliberamente, esto es, conla manifiesta intencion dedejar
enteramente la interpretacion de la palabra a la luzde una sola comun
definicin la establecida en la jurisprudenciadel asunto tipico de
Mapa contra Gobierno Insular y otrossimilares (supra); es decir, que la
palabra "agricultural",aplicada a terrenos privados, incluye tambien
solaresresidenciales, comerciales, e industriales.
A word or phrase repeated in a statute will bear the same
meaning throughout the statute, unless a different intention
appears. . . . Where words have been long used in a
technical sense and have been judicially construed to have a
certain meaning, and have been adopted by the legislature
as having a certain meaning prior to a particular statute in
which they are used, the rule of construction requires that
the words used in such statute should be construed
according to the sense in which they have been so
previously used, although that sense may vary from the strict
literal meaning of the words." (II Sutherland, Stat.
Construction, p. 758.)
Pero acaso se diga que la Asemblea Constituyente hadejado sin
definir la palabra "agricultural" referente aterreno particular, dando a
entendar con su silencio queendosaba la definicion al diccionario o a
la usanza popular.La suposicion es igualmente insostenible. ?Por
queen un caso se entrega la definicion a la jurisprudencia,y por que en
otro al diccionario, o al habla popular?Aparte de que los miembros y
dirigentes de la AsembleaConstituyente sabian muy bien que esto
causaria unatremenda confusion. Ni los diccionarios, ni mucho
menosel lenguaje popular, ofrecen apoyo seguro para una fiely
autorizada interpretacion. Si el texto mismo de la ley,con definiciones
especificas y casuisticas, todavia ofrecedudas a veces como no el
lexico vulgar, con su infinitavariedad de matices e idiotismos?

Ahora mismo no estamos presenciando una confusionn,una

perplejidad? Hay acaso uniformidad en la definicionde lo que es un
terreno privado agricola? No; cadacual lo define a su manera. Uno de
los disidentesel Magistrado Sr. Tuason toma su definicion de la
palabra "agricultural " del Diccionario Internacional de Webster que
dice . . . "of or pertaining to agricultural connected with, or engaged in,
tillage; as the agricultural class; agricultural implements, wages etc."
Tambien hacereferncia el mismo Magistrado al concepto popular.
Otrodisidente el Magistrado Sr. Padilla dice que "the termprivate
agricultural land means lands privately owneddevoted to cultivation, to
the raising of agriculturalproducts." El Magistrado Sr Paras no da
ninguna definicion;da por definida la palabra "agricultural", al parecer,
segunel concepto popular.
Pero, sobre todo, los abogados del apelante definen elvocablo de una
manera distinta. Segun ellos, "land spoken of as `agricultural' naturally
refers to land not only susceptible of agricultural or cultivation but more
valuable for such than for another purpose, say residential,commercial
or educational. . . . The criterion is notmere susceptibility of conversion
into a farm but its greater value when devoted to one or the other
purpose." Demode que, segun esta definicion, lo que determina la
calidaddel terreno es su valor relativo, segun que se dedique alcultivo,
o a residencia, o al comercio, o a la industria.Los autores de esta
definicion indudablemente tienen encuenta el hecho de que en las
afueras de las ciudades existenterrenos immensos que desde tiempo
inmemorial se handedicado a la agricultura, pero que se han
convertido ensubdivisiones multiplicandose su valor en mil por cientosi
no mas. De hecho esos terrenos son agricolas; comoque todavia se
ven alli los pilapiles y ciertas partes estancultivadas; pero en virtud de
su mayor valor para residencia,comercio e industria se les aquiere
colocar fuera dela prohibicion constitucional. En verdad, el criterio
nopuede ser mas elastico y convencional, y denota cuanincierta y
cuan confusa es la situacion a que da lugar latesis del apelante y de
los que le sostienen.
Si hubieramos de hacer depender la definicion de loque es un terreno
agricola del concepto popular y de losdiccionarios, asi sean los
mejores y mas cientificamente elaborados que normas claras,
concretas y definitivasde diferenciacion podrian establecerse?
Podrian trazarsefronteras inconfundibles entre lo que es agricola y lo
quees residencial, comercial e industrial? Podria hacerseuna
clasificacion que no fuese arbitraria? Indudablementeque no. El patron
mas usual de diferenciacion es lanaturaleza urbana o rural del terreno;
se considera comoresidencial, comercial e industrial todo lo que esta
dentrode una urbe, ciudad o poblacion. Pero resolveria esto la
dificultad? Proporcionaria un patron exacto, cientifico,no arbitrario?
Tampoco. Por que dentro de una ciudado poblacio puede haber y hay
terrenos agricolas. Comodijo muy bien el Magistrado Sr. Willard en el
asunto clasico de Mapa contra Gobierno Insular, "uno de los
inconvenientes de la adopcion de este criterio es que es tanvago e
indeterminado, que seria muy dificil aplicarlo enla practica. Que
terrenos son agricolas por naturaleza? l mismo Fiscal General, en su
alegato presentado en este asunto, dice: 'La montaa mas pedregosa
y el suelo mas pobre son susceptible de cultivo mediante la mano del
hombre'" (Mapa contra Insular, 10 Jur. Fil.,183). Y Luego el Sr. Willard
aade las siguietes observacionessumamente petinentes e ilustratives
para una correctare solucion del asunto que nos ocupa, a saber:
. . . Tales terrenos (agricolas, quiere decir) se pueden
encontrar dentro de los limites de cualquier ciudad. Hay
dentrode la ciudad de Manila, y en la parte densamente
poblada de lamisma, una granja experimental. Esta es por
su naturaleza agricola. Contigua a la Luneta, en la misma
ciudad, hay una gran extension de terreno denominado
Camp Wallace, destinada a sports. El terreno que circuda
los muros de la ciudad de Manila, situado entre estos y el
paseo del Malecon por el Sur y Este contiene muchas
hectareas de extension y es de naturaleza agricola. La
Luneta misma podria en cualquier tiempo destinarse al
cultivo.
La dificultad es mayor tratanndose de diferenciar unterreno agricola de
un terreno industrial. En este respectoes preciso tener en cuenta que
un terreno industiralno tienee que ser necesariamente urbano; en
realidad,la tendencia moderna es a situar las industrias fuera deas
ciudades en vastas zonas rurales. Verbigracia; anpredor de la famosa
cascada de Maria Cristina en Lanao existen grandes extensiones de
terreno agricola, algunasde propiedad particular. Cuando, se
industrialice aquellaformidable fuerza hidraulica bajo el llamado Plan
Beyster que normas segfuras se podrian establecer para poner
envigor la prohibicion constitucional fuese burlada enajenandosetierras
agricolas de propiedad privada a favorde extranjeros, ya sean
individuos, ya sean corporacioneso asociaciones, so pretexto de ser
industriales?
Resulta evidence de lo expueto que los redactores denuetra
Constitucion no pudienron haber tenido la idea deque el articulo XIII
fuera interpretado a la luz de ese criterio vago e indeterminado que
llama el Sr. Willard. Es mas logico pensar que el criterio que ellos
tenian enla mente era el criterio establicido en la jurisprudencia
sentada en el asunto clasico de Mapa contra Gobierno y otros asuntos

concomitantes citados criterio mas frime, mas seguro, menos

expuesto a confusion y arbitrariedad, y sobre todo, "que ofrece menos
inconvenientes", parafraseando otra vez al Magistrado Sr. Willard,
(supra, p. 185).
Otro serio inconveniente, La seccion 3, articulo XIIIde;la Constitucion,
dispone que "el Congreso puedo determinarpor ley l;a eextension
superficial del terrenoprivado agricola que los individous,
corporaciones o asociaciones pueden adquirir y poseer, sujeto a los
derechos existentes antes de la aprobacion de dicha ley." Si
seinterpretase que la frase "private agricultural land" noincluye
terrenos residenciales, comerciales e industriales,entonces estas
ultimas clases de yterreno quedarian excluidas de la facultad
reguladora concedida por la Constitucion al Congreso mediante dicha
seccion 3. Entoncesun individuo o una corporacion podrian ser dueos
de todoslos terrenos de una ciudad; no habria limite a las
adquisicionesy posesiones en lo tocante a terrenos
residenciales,comerciales e industriles. Esto parece absurdo,
peroseria obligada consecuencia de la tesis sustentada por elapelante.
Se hace hincapie en el argumento de que el el procesode tamizacion
del articulo XIII durante las deliberacionesde la Asamblea
Constituyente y de los Comites de Ponnnnenciay de estilo al principio
no figuraba el adjetivo "agricola"en la seccion 5, diciendose solo
"terreno privado" y quesolo mas trade se aadio la palabra calificativa
agricola"private agricultural land" De este se quiere inferir quela
adicion de la palabra "agricultural" debio de ser poralgun motivo y este
no podia ser mas que el de que sequiso excluir los terrenos
residenciales comerciales e industriales, limitandose el precepto a los
propia o estrictamenteagricolas.
La deduccion es incorrecta y sin fundamento. No cabedecir que la
adicion de la plabra "agricultural" en estecaso equivale a excuir los
terrenos residenciales, comercialese industriales, por la sencilla razon
de que la Constitucion no solo no define lo que es residencial
comercial e industrial, comercial e industrial. En cambio ya hemosvisto
que la palabra "agricultral" tiene una significaciontradicionalmente bien
establecida en nuestra jurisprudenciay en nuestro vocabulario juridico:
incluye no solo terrenoscultivados o susceptibles fe cultivo, sino
tambien residencialescomerciales e industriales. Se admite por todo
elmundo que la palabra tiene tal significacion en el articuloXIII, seccion
5, de la Constitucion, en cuanto se refierea terreno publico. Ahora
bien; que diferencia hay, despuesde todo, entire un terreno publico
agricolo y uno sea a la calidad de agricola, absolutamente
ninguna.Uno no es mas menois agricola que el otro. La
unicadiferencia se refiere a la propiedad, al titulo dominical en que
el uno es del Estado y el otro es de un particular.
En realidad, creo que la diferencia es mas bien psicologica,subjetiva
en que vulgarmente hablando pareceque los conceptos de
"agricola" y "residencial" se repelen.No se debe menospreciar la
influencia del vulgo en algunascosas; en la misma literatura el vulgo
juega su papel; digasi no la formacion popular del romancero. Pero es
indudable que cietas cosas estan por encima del conceptovulgar
una de estae la interpretacion de la leyes, lahermeneutica legal. Esto
no es exagerar la importancia de la tecnica sino que es simplemente
colocar las cosasensu verdadero lugar. La interpretacion de la ley es
unafuncion de minoria los abogados. Si no fuera asi paraque los
abogados? Y para que las escuelas de dercho,y para que los
exmenes, cada vez mas rigidos, para de purar el alma de la toga, que
dijo un gran abogado espaol?6 Asi que cuando decimos que el
precepto constitucional en cuestion debe interpretatarse tecnicamente,
a la luz de la jurisprudencia, por ser ello el metodo mas seguro para
hallar la verdad judicial, no importa que ello repugne al concepto
vulgar a simple vista, no ponemos,en realidad, nionguna pica en
Flandes, sino que propugnamos una cosa harto elememntal por lo
sabida.
Por tanto no es necesario especular o devanarse lossesos tratando de
inquirir por que en la tamizacion delprecepto se aadio el adjetivo
'agricultural" a las palabras"private land" en vez de dejarlas solas sin
cualificacion.Algunos diran que fue por razon de simentria para
hacer"pendant diran que fue por razon de simetria para
hacer"pendant" con la frase "public agricultural land" puestamas
arriba. Pero esto np tiene ninguna importancia. Loimportante es saber
que la aadidura, tal como esta jurisdiccion, de la palbra "agricultural"
empleada en dicho texto. Eso es todo; lo demas creo que es puro
bizantinis mo.
III. Cero que una examen de los documentos y debatesde la Asamblea
Constituyente para ver de inquirir la motivacion y finalidad del precepto
constitucional que nos ocupapuede ayudar grandemente y arrojar no
poca luz en lainterpretacion de la letra y espiritu de dicho
precepto.Este genero de inquisicion es perfectamente propio y
permisible en hermeneutica constitucional, y se ha hechosiempre,
segun las majores autoridades sobre la materia. Cooley, en su
authorizado tratado sobre Limitaciones Constitucionales
(Constitutional Limitations) dice a este efectolo sigiuente:

When the inquiry is directedto ascertaining

the mischief designed to be remedied, or the purpose sought
to be accomplished by a particular provision, it may be
proper to examine the proceedings of the convention which
framed the instrument. Where the proceedings clearly point
out the purpose of the provision, the aid will be valuable and
satisfactory; but where the question is one of abstract
meaning, it will be difficult to derive from this source much
reliable assistance in interpretation. (1 Cooley on
Constitutional Limitations [8th ed.], p. 142.)
Que atmosfera prevalecia en la Asamblea sobre elproblema de la
tierra en general sobre el problema capitalismo de los terrenos
naturales? Cual era la tendenciapredominante entre los Delegados?
Y como era tambienel giro de la opinion, del sentimiento publico es
decir comoera el pulso del pueblo mismo del cual la Asamblea
despuesde todo no era mas que organo e interprete?
Varios discursos sobre el particular se pronounciaronen la Asamblea
Constituyente. El tono predomionante entodos ellos era un fuerte,
profundo nacionalismo. Tanto dentro como fuera de la Asamblea
Constituyente era evidente, acusado, el afan unanime y decidido de
conservar el patrimonio nacional no solo para las presentes
generaciones filipinas, sino tambien para la posteridad. Y patrimonio
nacional tenia, en la mente de todos un significadocategorio e
indubitable; significion de si es dedominio publico o privado. Muestras
tipicas y representativas de este tono pecular y dominantes de la
ideologiaconstituyente son ciertas m,anifestaciones que constanen el
diario de serines has en el curso de los debateso en el proceso de la
redaccion del proyecto constitucionalpor Delegados de palabra
autorizadam bien por su significacion personal bein por el papel
particula que desempeaban en las treas constituyentes. Por ejemplo
el Delegado Montilla por Negros Occidental, conspicuo representante
del agro, usando del privilegio de madia horaparlamentaria dijo en
parte lo siguinte:
. . . Con la completa nacionnalization de nuestras tierras y
recursos natural debe entenderse que nuetro patrimonio
nacional debe estar vinculado 100 por 100 en manos
filipinas. Tierras y recursos naturales son inm,uebles y como
tales pueden compararse con los organos vitales del cuerpo
de una persona: la falta de posesion de los mismo puede
caussar la muete instantannea o el abreviamiento de la vida
(Diario de Sesiones Asamblea Constituyente, inedita,
"Framing of the Constitution," tit. 2 0 pag. 592 Libro del
Profesor Aruego).
Como se ve el Delegado Montilla habla de tierras sin adjetivacion, es
decir sin difenciar entre propiedad publica y privada.
El Delgado Ledesma, por Iloilo, otro conspicuo representante del agro
presidente del comte de agricultura de la Asamblea que los
extramnjeros no podian ser mismas palabras:
La exclusion de los extranjeros del privilegio de adquirir
terrenos publicos agricolas y de poder se dueos de
propiedades inmuebles (real estate) es una parte necesaria
de las leyes de terrenos publicos de Filipinas para mantener
firme la idea de conservar Filipinaspara los filipos' (Diario de
Sesiones, id.; Libro de Aruego, supra, pag. 593.)
Es harto significtativo que en el informe del Colite de Nacionalizacion y
Conservacion de Recursos Naturales de la Asamblea Constituyente la
plabra tierra (land) se usa generricamente sin cualificacion de publica
o privada. Dice el Comite:
Que la tierra, los minerales los bosques y otros recursos
naturalesconstituyen la herencia exclusiva de la nacion
filipina. Deben,por tanto, ser conservados para aquellos que
se halian bajo la autoridad soberana de esa nacion y para
su posteridad. (Libro de Aruego, supra, pag. 595.)
La conservacion y fomento del patrimonio nacional fue una verdadera
obsesion en la Asamblea Constituyente. Sus mienbros que todavia
viven recordaran l;a infinita paciencia, el esmero de orfe breria con que
se trabajo el preambulo de la Constitucion. Cada frase, cada concepto
se sometio a un rigido proceso de seleccion y las gemas resultans es
la labor benedictina una de las gemas redel patrimonio nacional. He
aqui el preambulo:
The Filipino people, imploring the aid of Divene
Providence,in order to establish a government that shall
enbody their ideals, conserve and develop the patrimony of
the nation, promote the general welfare, and secure to
themslves and their posterity the blessings of independence
under a regime of justice, liberty, and democracy, do ordain
and promulgate this Constitution.

El espiritu fuertemente nacionalista que saturaba la Asamblea

Constituyente con respecto a la tierre y recursosnaturales es de facil
explicacion. Estabamos escribiendouna Constitucion no solo para el
Commonwealth, sino tambien para la republica que advendria
despues de10 aos. Querianos, puesd asegurar firmemente las
basesde nuestra nacionalidad. Que cosa major para ello quebildar
por los cuatro costrados el cuerpo dela mnacion delcual parodiando
al Delegado Montilla la tierra y losresoursos naturales son como
organos vitales cuya perdidapuede causar la muerte instantanea o el
abreviamiento dela vida?
Para aprociar el pulso de la nacion en aquel memontohistorico es
preciso tener en cuenta las cirucmstancias.Nos debamos perfecta
cuenta de nuetra posicion geografica,asi como tambien de nuestras
limitaciones demograficas.Se trataba, por ciento de una conciencia
agudamenteatormentadora y alarmante. Estabamos roodeadosde
enormes mesas humanas centenares de milliones economica y
biologicamente agresivas, avidad de desbordarsepor tadas partes, poir
las areas del Pafico particularmente,en busca de espacio vitales.
China, Japon-Japon, sobretodo que estaba entonces en el apogeo de
su delirio deengrandecimiento economico y militarista. Teniamos
apantadoal mismo corazon, como espada rutilante de Samurrai,el
pavoroso problema de Davao, donde, por errores incialesdel
Gobierno, Japon tenia el control de la tierra, instituyendos alli una
especie de Japon en miniatura, con todaslas amenasas y peligros que
ello implicaba para la integridadde nuestra existancia nacional. Como
que Davaoya se llamaba popular y sarcasticamente Davaoko,
entragica rima con Manchuko.
Tambien nos obsesionaban otras lecciones dolorosas dehistoria
contemporanea. Texas, Mejico, Cuba y otraspaises del Mar Caribe y
de la America Latina que todaviaexpiaban, como una terrible maldicion
el error de susgobernantes al permitir la enajenacion del suelo a
extranjeros.
Con el commercio y la industria principalmente en manosno-filipinas,
los Delegados a la Constituyente se haciancargo tambien de la
vitalisima necesidad de, por lo menos,vincular el apatrimonio nacional,
entre otras cosas la tierra, en manos de los filipinos.
Que de extrao habia, pues, que en semejante atmosfera y tales
circumstancias se aprobase un articulo rigidamentenacionalismta
como es el Article XIII? La motivacion y finalidad, como ya se ha dicho,
era triple: (a)consetvar el patrimonio nacional para las presentes
yfuturas generaciones filipinas; (b) vincular, por lo menos,la propiedad
de la tierra y de los recursos naturales en manos filipinas como la
mejor manera de mantener elequilibrio de un sistema economico
dominado principalmente por extranjeros en virtud de su tecnica
(know-how) superior y de su abudancia de capitales: (c) prefictos y
complicaciones internacionales.
No se concibe que los Delegados tuvieran la intercionde excluir del
precepto los terrenos residenciales comercialese industrial, pues
sabian muy bien que los finesque se trataban de conseguir y los
peligros quie se trataban de evitar con la politica de nacionalizacion y
conservacionrezaban tanto para una clase de terrenos como para otra.
Por que se iba a temer, verbigracia, el dominio extranjero sobre un
terreno estrictamente, agricola, sujeto a cultivo, y no sobre el terreno
en que estuviera instalada unaformidable industria o fabrica?
Otro detalle significativo. Era tan vigoroso el sentimiento nacionalista
en la Asamblea Constituyente que, noobstante el natural sentimiento
de gratitud que nos obligabaa favor de los americanos., a estos no se
les concedioningun privilegio en relacion con la tierra y demas
recusosnaturales, sino que se les coloco en el mismo plano que alos
otros extranjeros. Como que ha habido necesidad deuna reforma
constitucional la llmada reforma sobre laparidad para
equipararlos a los filipinos.
The mere literal construction of a section in a statute ought
not to prevail if it is opposed to the intention of the legislature
apparent by the statute; and if the words are sufficiently
flexible to admit of some other construction it is to be
adopted to effectuate that intention. The intent prevails over
the letter, and the latter will, if possible, be so read as to
conform to the spirit of the act. While the intention of the
legislature must be ascertained from the words used to
express it, the manifest reason and the obvious purpose of
the law should not be sacrificed to a literal interpretation of
such words. (II Sutherland, Stat. Construction, pp. 721, 722.)
IV. Se insinua que no debieramos declarar que laConstitucion
excluye a loc extranjeros de la propiedadsobre terrenos residenciales
e industriales,porque ello imposibilitaria toda accion legislativa en
sentidocontrario para el caso de que el Congreso Ilegagealguna vez a
pensar que semejante interdiccio debialevantarse. Se dice que es
majes y mas conveniente dejaresta cuestion en manos del Congreso
para que haya maselasticidad en las soluciones de los diferentes
problemassobre la tierra.

Cometeriamos un grave error si esto hicieramos. Estaes una cuestion

constitucional por excelencia. Solamenteel pueblo puede disponer del
patrimonio nacional. Ni el Congreso, ni mucho menos los tribunales,
pueden disponerde ese patrimonio. Lo mas que puede hecer el
Congreso es proponer una reforma constitucional mediante los
votosde tres cuartas (3/4) de sus miembros; y el pueblo tienela ultima
palabra que se expresara en una eleccion oplebiscito convocado al
efecto.
El argumento de que esto costaria dinero es insostenible. Seria una
economia mal entendida. Si no se escatiman gastos para celebrar
elctiones ordinarias periodicamente como ha del pueblo en un asunto
tan vital como es la disposicion del patrimonio nacional, base de su
mismaexistencia? para reformar la Constitucion, apoyado portres
cuartas (3/4) del Congreso, por lo menos.
En el entretanto el articulo XIII de la Constitucion debequedar tal como
es, e interpretarse en la forma como lo interpretamos en nuestra
decision.
Se confirma la sentencia.

PARAS, J., dissenting:

Section 5 of Article XIII of the Constitution provides that "save in cases
of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in
the Philippines." The important question that arises is whether private
residential land is included in the terms "private agricultural land."
There is no doubt that under section 1 of Article XIII of the Constitution,
quoted in the majority opinion, lands of the public domain are classified
into agricultural, timber,or mineral. There can be no doubt, also, that
public lands suitable or actually used for residential purposes, must of
necessity come under any of the three classes.
But may it be reasonably supposed that lands already of private
ownership at the time of the approval of the Constitution, have the
same classification? An affirmative answer will lead to the conclusion
which is at once absurd and anomalous that private timber and
mineral lands may be transferred or assigned to aliens by a mode
other than hereditary succession. It is, however, contended that timber
and mineral lands can never be private, and reliance is placed on
section 1, Article XIII, of the Constitution providing that "all agricultural,
timber and mineral lands of the public domain . . . belong to the State,"
and limiting the alienation of natural resources only to public
agricultural land. The contention is obviously untenable. This
constitutional provision, far from stating that all timber and mineral
lands existing at the time of its approval belong to the State, merely
proclaims ownership by the Government of all such lands as are then
of the public domain; and although, after the approval of the
Constitution, no public timber or mineral land may be alienated, it does
not follow that timber or mineral lands theretofore already of private
ownership also became part of the public domain. We have held, quite
recently, that lands in the possession of occupants and their
predecessors in interest since time immemorial do not belong to the
Government, for such possession justifies the presumption that said
lands had been private properties even before the Spanish conquest.
(Oh Cho vs. Director of Lands, 43 Off. Gaz., 866.) This gives effect to
the pronouncement in Cario vs. Insular Government (212 U.S., 446;
53 Law. ed., 594), that it could not be supposed that "every native who
had not a paper title is a trespasser." It is easy to imagine that some of
such lands may be timber or mineral. However, if there are absolutely
no private timber or mineral. However, if there are absolutely no private
timber or mineral lands, why did the framers of the Constitution bother
about speaking of "private agricultural land" in sections 3 and 5 of
Article XIII, and merely of "lands" in section 4?
SEC. 3. The Congress may determine by law the size of
private agricultural land which individuals, corporations, or
associations may acquire and hold, subject to rights existing
prior to the enactmentof such law.
SEC. 4. The Congress may authorize, upon payment of just
compensation, the expropriation of lands to be subdivided
into small lots and conveyed at cost to individuals.
SEC. 5. Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to
individuals, corporations, or associations qualified to acquire
or hold lands of the public domain in the Philippines.

Under section 3, the Congress may determine by law the size of

private agricultural land which individuals, corporations, or associations
may acquire and hold, subbject to rights existing prior to the enactment
of such law, and under section 4 it may authorize, upon payment of just
compensation, the expropriation of lands to be subdivided into small
lots and conveyed at cost to individuals. The latter section clearly
negatives the idea that private lands can only be agricultural. If the
exclusive classification of public lands contained in section 1 is held
applicable to private lands, and , as we have shown, there may be
private timber and mineral lands, there would be neither sense nor
justification in authorizing the Congress to determine the size of private
agricultural land only, and in not extending the prohibition of section 5
to timber and mineral lands.
In may opinion, private lands are not contemplated or controlled by the
classification of public lands, and the term "agricultural" appearing in
section 5 was used as it is commonly understood, namely, as denoting
lands devoted to agricultural. In other words, residential or urban lots
are not embraced within the inhibition established in said provision. It is
noteworthy that the original draft referred merely to "private land." This
certainty would have been comprehensive enough to included any kind
of land. The insertion of the adjective "agricultural " is therefore
significant. If the Constitution prohibits the alienation to foreigners of
private lands of and kind, no legislation can ever be enacted with a
view to permitting limited areas of land for residential, commercial, or
industrial use, and said prohibition may readily affect any effort towards
the attainment of rapid progress in Philippine economy. On the other
hand, should any danger arise from the absence of such constitutional
prohibition, a law may be passed to remedy the situation, thereby
enabling the Government to adopt such elastic policy as may from time
to time be necessary, unhampered by any inconveniences or
difficulties in amending the Constitution. The power of expropriation is,
furthermore, a handy safeguard against undersirable effects of
unrestricted alienation to, or ownership by, aliens of urban properties.
The majority argue that the original draft in which the more general
terms "private land" was used, was amended in the same that the
adjective "agricultural" was inserted in order merely "to clarify concepts
and avoid uncertainties" and because, as under section 1, timber and
mineral lands can never be private, "the prohibition to transfer the
same, would be superfluous." In answer, it may be stated that section 4
of Article XIII, referring to the right of expropriation, uses "lands"
without any qualification, and it is logical to believe that the use was
made knowingly in contradistinctions with the limited term "private
agricultural land" in section 3 and 5. Following the line of reasoning of
the majority, "lands" in section 4 necessarily implies that what may be
expropriated is not only private agricultural land but also private timber
and mineral lands, as well, of course, as private residential lands. This
of course tears apart the majority's contention that there cannot be any
private timber or mineral land.
Any doubt in the matter will be removed when it is, borne in mind that
no less than Honorable Filemon Sotto, Chairman of the Sponsorship
Committee of the Constitutional Convention, in supporting section 3 of
the Article XIII, explained that the same refers to agricultural land, and
not to urban properties, and such explanation is somewhat confirmed
by the statement of another member of the Convention (delegate
Sevilla) to the effect that said section "is discriminatory and unjust with
regard to the agriculturists."
Sr. SOTTO (F) Seor Presidente: "Que hay caballeros de
laConvencion en el fondo de esta cuestion al parecer
inocente yordinaria para que tanto revuelo haya metido tanto
en la sesion de ayer como en la de hoy? Que hay de
misterios en el fondo de este problem, para que politicos del
volumen del caballero por Iloilo y del caballero por
Batangas, tomen con gran interes una macion para
reconsiderar lo acordado ayer? Voy a ser frio, seores.
Parece que es meyor tratar estas cuestiones con calma y no
apasionamiento. He prestado atencion, como siempre suelo
hacer a todos los argumentos aqui en contra del precepto
contenido en el draft y a favor ahora de la reconsideracion y
siento decir lo siguiente; todos son argumentos muy buenos
a posteriori. Cuando la Asamble Nacional se haya reunido,
sera la ocasion de ver si procede o no expropiar terrenos o
latifundios existentes ahorao existentes despues. En el
presente, yo me limito a invitar la atencion de la Convencion
al hecho de que el procepto no tome las medidas necesarias
en tiempo oportuno, cuando el problema del latifundismo se
haya presentado con caracterres tales que el beinestar,
interes y orden publico lo requieran. Permitame la
Convencion que lo discuta en globo las dos pates del
articulo 9. Hay tal engranaje en los dos mandatos que tiene
dicho precepto, hay tral eslabon en una u otra parte que es
imposible, que es dificil que quitaramos deslindes si nos
limitasemos a considerar una sola parte. La primera parte
autoriza a la legislatura para fijar el limite maximo de
propiedad agricola que los ciudadanos particulares puede
tener. Parece que es un punto que ha pasado
desapercibido. No se trata aqui ahora de propiedades
urbanas, sino de propiedades agricolas, y es por la razon de
que con mucha especialidad en las regiones agricolas, en
las zones rusticas es donde el latifundismo se extiende con

facilidad, y desde alli los pequeos propietariou

precisamente para ahogarles y para intilizarles. Esta pues, a
salvo completamente la cuestion de las propiedades urbans.
Cietos grandes soleres de nuestras ciudaes que con
pretexto de tener cietos eficios, que en realidad no
necesitan de tales extensos solares para su existencia ni
para su mantenimineto, puedan dormir transquilos. No
Vamos contra esas propiedades. Por una causa o por otra
el pasado nos legardo ese lastre doloroso. Pero la region
agricola, la region menos explotada por nuetro pueblo, la
region que necesitamos si queremos vivir cuenta propia la
region que es el mayor incentivo no para solo para los
grandes capitalistas de fuera merece todos los ciudados del
gobierno.
Voy a pasar ahora a la relacion que tiene la seggunda parte
de la enmiendad con la primera. Una vez demostrado ante
la Lehgislatura, una vez convencida la Asamblea Nacional
de que existe un latifundismo y que este laitifundismo puede
producir males e esta produciendo daos a la comunidad,
es cuando entonces la Legislatura puede acordar la
expropiacion de los latifundios. Donde esta el mal que los
opositores a este es un postulado que todos conocen. Bien,
voy a admitir para los propositos del argumento que hoy no
existen laifundios, y si los opostores al precepto quieren mas
vamos a convenir en que no existrian en el futuro. Pues,
entonces, donde este el temor de que el hijo de tal no pueda
recibir la herencia de cual? Por lo demas el ejemplo
repetidas veces presentado ayer yhoy en cuanto al herdero
y al causahabiente no es completamente exacto. Vamos a
suponer que efectivamente un padre de familia posee un
numero tal de hectareas de terreno, superior o exedente a lo
que fija la ley. Creen los Caballeros, creen los opositorees al
precepto que la Legislatura, la Asamblea Nacional va a ser
tan imprudente, tan loca que inmediatemente disponga por
ley que aquella porcion excedente del terreno que ha de
recibir un hijo de su padre no podra poseerlo, no podra
tenerlo o recibirlo el heredero.
Esa es una materia para la Asamblea Nacional. La
asamblea Nacional sabe que no puede dictar leyes o
medidas imposibles de cumplir. Fijara el plazo, fijara la
proporcion de acuedo con las circunstancias del tiempo
entonces en que vivamos. Es posible que ahora un numero
determinado de hectereas sea excesivo; es posible que por
desenvolvimientos economics del paius ese numero de
hectareas puede ser elevado o reducido. Es por esto porque
el Comite precisamente no ha querido fijar desde ahora el
numero de hectareas presamente no ha querido fijar desde
ahora el numero de hectareas, prefireindo dejar a la
sabiduria, a la prudencia, al patriotismo y a la justicia de la
Asambela Nacional el fijar ese numero.
Lomismo digo de la expropiacion. Se habla de que el
gobierno no tendra dinero; se hablqa de que no podra
revender las propieedades. Pero, Caballeros de la
Convencion, caballeros opositores del precepto; si la
Legislatura, si la AsambleaNacional estuviera convencida de
que el gobierno no puede hecer una exporpiacion, va a
hecerlo? La Asamblea Nacional dictara una ley autorizando
la expropiacion de tal a cual latifundio cuando este
convencida, primero, de que la existencia de ese latifundio
es amenazante para el publico; y segundo, cuando la
asamblea Nacional este convencida de que el gobierno esta
disposicion para disponer la expropiacion.
Visto, pues, desde este punto el asunto, no es malo
autorizar,fijar los limites, ni macho menos es malo autorizar
a la Legislatura para dictar leyes de expropiacion.
Pero voy a molestaros por un minuto mas. Se ha mentado
aquicon algun exito esta maana y digo con exito porque
he oidoalgunos aplausos se ha mentado la posibilidad de
que los comunistas hagan unissue de esta disposicion que
existe en el draft; podran los comunistas pedir los votos del
electorado para ser elloslos que dicten las leyes fijando el
limite del terreno y ordenen la expropriacion? Que
argumento mas bonito si tuviera base! Lo mas natural, creo
yo, es que el pueblo, el electorado, al ver queno es una
Asamblea Constituyente comunista la que ha puestoesta
disposicion, otorgue sus votors a esta misma Asamblea
Nacional, o a esos condidatos no comunistas. Quien esta
en disposicion de terminar mejor una obra aquel que trazado
y puesto los primeros pilares, o aquel que viene de gorra al
final de la obra para decir: "Aqui estoy poner el tejado?"
Es sensible, sin embargo, que una cuetion de importancia
tannacional como este, pretendamos ligarla a los votos de
los comulites de terreno; no ha de venir porque nosotros
fijemos loslimites de terreno; no ha de venir porque

prohibamos los latifundiosmediante expropiacion forzosa,

no; ha de venir precisamentepor causa de los grandes
propietarios de terreno, y ha de venir,queramoslo o no,
porque el mundo esta evolucionando y se va aconvencer de
que la vida no es solamente para unos cuantos sinopara
todos , porque Dios no la dio, con la libertad, el aire, la luz,la
tierra para vivir (Grandes Aplausosz), y por algo se ha
dichoque en los comienzos de la vida himana debio haber
sido fusilado,matado, a aquel primero que puso un cerco a
un pedazo de tierrareclamando ser suya a propiedad.
Por estas razones, seor Presidente, y sintiendo que mi
tiempoesta para terminar, voy a dar fin a mi discurso
agradeciendo a la Convencion. (Speech of Delegate Sotto.)
I would further add, Mr. President, that this precept by
limiting private individuals to holding and acquiring lands,
private agricultural lands . . . is discriminatory and unjust with
regard to the agriculturists. Why not, Mr. President, extend
this provision also to those who are engaged in commerce
and industries? Both elements amass wealth. If the purpose
of the Committee, Mr. President, is to distribute the wealth in
such a manner that it will no breed discontent, I see no
reason for the discrimination against the agricultural. In view
of these reasons, Mr. President, I do not want to speak
further and I submit this amendment because many reasons
have been given already yesterday and this morning.
(Speech of Delegate Sevilla.)
Delegate Sotto was not interpellated, much less contradicted, on the
observation that section 3 of Article XIII does not embrace private
urban lands. There is of course every reason to believe that the sense
in which the terms "private agricultural lands" were employed in section
3 must be the same as that in section 5, if consistency is to be
attributed to the framers of the Constitution.
We should not be concluded by te remarks, cited in the majority
opinion, made by Delegate Ledesma to the effect that "the exclusion of
aleins from the private of acquiring public agricultural lands and of
owning real estate is a necessary part of the Public Land Laws," and of
the statement of Delegate Montilla regarding "the complete
nationalization of our lands and natural resources," because (1) the
remarks of Delegate Ledesma expressly mentions "public agricultural
lands" and the terms "real estate" must undoubtedly carry the same
meaning as the preceding words "public agricultural lands", under the
principle of "ejusdem generis"; (2) Delegate Ledesma must have in
mind purely "agricultural" lands, sicne he was the Chairman of the
Committee on Agricultural Development and his speech was made in
connection with the national policy on agricultural lands; (3) the general
nature of the explanations of both Delegate Ledesma and Delegate
Montilla, cannot control the more specific clarification of Delegate Sotto
that agricultural lands in section 3 do not include urban propeties.
Neither are we bound to give reater force to the view (apparently
based on mere mental recollections) of the Justices who were
members of the Constitutional Convention than tot he specific recorded
manifestation of Delegate Sotto.
The decision in the case of Mapa vs. Insular Government (10 Phil.,
175), invoked by the majority, is surely not controlling, because, first, it
dealt with "agricultural public lands" and, secondly, in that case it was
expressly held that the phrase "agricultural land" as used in Act No.
926 "means those public lands acquired from Spain which are not
timber or mineral lands," the definition held to be found in section 13
of the Act of Congress of July 1, 1902.
We hold that there is to found in the act of Congress a
definition of the phrase "agricultural public lands," and after a
carefully consideration of the question we are satisfied that
the only definition which exists in said act is the definition
adopted by the court below. Section 13 says that the
Government shall "make rules and regulations for the lease,
sale or other disposition of the public lands other than timber
or mineral lands." To our minds that is the only definition that
can be said to be given to agricultural lands. In other words,
that the phrase "agricultural land" as used in Act No. 926
means those public lands accquired from Spain which are
not timber or mineral lands. (Mapa vs. Insular Government,
10 Phil., 182.)
The majority, in support of their construction, invoke Commonwealth
Act No. 141, enected after the approval of the Constitution, which
prohibits the alienation to foreigners of "land originally acquired in any
manner under the provisions of this Act," (section 122) or "land
originally acquired in any manner under the provisions of any previous
Act, ordinance, royal order, royal decree, or any other provision of law
formerly in force in the Philippines with regard to public lands, terrenos
baldios realengos, or lands of any other denomination that were
actually or presumptively of the public domain." (Section 123.) They
hold that the constitutional intent "is made more patent and is strongly
implemented by said Act." The majority have evidently overlooked the

fact that the prohibition contained in said sections refer to lands

originally acquired under said sections referto land originally acqured
under said Act or otherlegal provisions lands, which of course do not
include lands not originally of the public domain. The lands that may be
acquired under Act No. 141 necessarily have to be public agricultural
lands, since they are the only kinds that are subject to alienation or
disposition under the Constitution. Hence, even if they become private,
said lands retained their original agricultural character and may not
therefore be alienated to foreigners. It is only in this sense, I think, that
act No. 141 seeks to carry out and implement the constitutional
objective. In the case before us, however, there is no pretense that the
land bought by the appellant was originally acquired under said Act or
other legal provisions contemplated therein.
The majority is also mistaken in arguing that "prior to the Constitution,
under section 24 of the Public Land Act No. 2874 aliens could acquire
public agricultural lands used for industrial or residential purposes, but
after the Constitution and under section 23 of Commonwealth Act No.
141, the right of aliens to acquire such kind of lands is completely
stricken out, undoubtedly in pursuanceof the Constitutional limitation,"
and that "prior to the Constitution, under section 57 of the Public Land
Act No.2874, land of the public domain suitable for residence or
industrial purposes could be sold or leased to aliens, but after the
Constitution and under section 60 of Commonwealth Act No. 141, such
land may only be leased, but not sold, to aliens, and the lease granted
shall only be valid while the land is used for the purpose referred to."
Section 1 of article XIII of the Constitution speaks of "public agricultural
lands" and quite logically, Commonwealth Act No. 141, enacted after
the approval of the Constitution, has to limit the alienation of its subject
matter (public agricultural land, which includes public residential or
industrial land) to Filipino citizens. But it is not correct to consider said
Act as a legislation on, or a limitation against, the right of aliens to
acquire residential land that was already of private ownership prior to
the approval of the Constitution.
The sweeping assertion of the majority that "the three great
departments of the Government Judicial, Legislative and Executive
have always maintained that lands of the public domain are
classified into agricultural, mineral and timber, and that agricultural
lands include residential lots," is rather misleading and not
inconsistent, with our position. While the construction mistakenly
invoked by the majority refers exclusively to lands of the public domain,
our view is that private residential lands are not embraced within the
terms "private agricultural land" in section 5 of Article XIII. Let us
particularize in somewhat chronological order. We have already
pointed out that the leading case of Mapa vs. Insular Government,
supra, only held that agricultural public lands are those public
lands acquired from Spain which are neither timber nor mineral lands.
The opinion of the Secretary of Justice dated July 15, 1939, quoted in
the majority opinion, limited itself in affirming that "residential,
commercial or industrial lots forming part of the public domain . . . must
be classified as agricultural." Indeed, the limited scope of said opinion
is clearly pointed out in the following subsequent opinion of the
Secretary of Justice dated September 25, 1941, expressly hoding that
"in cases involving the prohibition in section 5 of Article XIII (formerly
Article XII) regarding transfer or assignment of private agricultural
lands to foreigners, the opinion that residential lots are not agricultural
lands is applicable."
This is with reference to your first indorsement dated July 30,
1941, forwarding the request of the Register of Deeds of
Oriental Misamis for an opinion as to whether Opinion No.
130, dated July 15, 1939, of this Department quoted in its
Circular No. 28, dated May 13, 1941, holding among others,
that the phrase "public agricultural land" in section 1, Article
XIII (formerly article XII) of the Constitution of the
Philippines, includes residential, commercial or industrial lots
for purposes of their disposition, amends or supersedeas a
decision or order of the fourth branch of the Court of First
Instance of the City of Manila rendered pursuant to section
200 of the Administrative Code which holds that a residential
lot is not an agricultural land, and therefore, the prohibition in
section 5, Article XIII (formerly Article XII) of the Constitution
of the Philippines does not apply.
There is no conflict between the two opinions.
Section 1, Artcile XIII (formerly article XII of the Constitution
of the Philippines, speaks of public agricultural lands while
section 5 of the same article treats of private agricultural
lands. A holding, therefore, that a residential lot is not private
agricultural land within the meaning of that phrase as found
in section 5 of Article XIII (formerly Article XII) does not
conflict with an opinion that residential, commercial or
industrial lots forming part of the public domain are included
within the phrase "public agricultural land" found in section 1,
Article XIII (formerly Article XII) of the Constitution of the
Philippines. In cases involving the prohibition in section 5 of
Article XIII (formerly Article XII) regarding transfer or
assignment of private agricultural lands to foreigners, the
opinion that residential lots are not agricultural lands is

applicable. In cases involving the prohibition in section 1 of

Article XIII (formerly Article XII) regarding disposition in favor
of, and exploitation, development or utilization by foreigners
of public agricultural lands, the opinion that residential,
commercial or industrial lots forming part of the public
domain are included within the phrase "public agricultural
land" found in said section 1 of the Article XIII (formerly
Article XII) governs.
Commonwealth Act No. 141, passed after the approval of the
Constitution limited its restriction against transfers in favor of alien to
public agricultural lands or to lands originally acquired under said Act
or other legal provisions formerly in force in the Philippines with regard
to public lands. On November 29, 1943, the Court of Appeals rendered
a decision affirming that of the Court of First rendered a decision
affirming that of the Court of First Instance of Tarlac in a case in which
it was held that private residential lots are not included in the
prohibition in section 5 of Article XIII. (CA-G. R. No. 29.) During
theJapanese occupation, the Constitution of the then Republic of the
Philippines contained an almost verbatim reproduction of said section
5 of Article XIII; and the then National Assembly passed an Act
providing that "no natural or juridical person who is not a Filipino citizen
shall acquire directly or indirectly any title to private lands (which are
not agricultural lands) including buildings and other improvements
thereon or leasehold rights on said lands, except by legal succession
of proper cases, unless authorized by the President of the Republic of
the Philippines." (Off. Gaz., Vol. I, p. 497, February,1944.) It is true that
the Secretary of Justice in 1945 appears to have rendered an opinion
on the matter, but it cannot have any persuasive force because it
merely suspended the effect of the previous opinion of his Department
pending judicial determination of the question. Very recently, the
Secretary of Justice issued a circular adopting in effect the opinion of
his Department rendered in1941. Last but not least, since the approval
of the Constitution, numerous transactions involving transfers of private
residential lots to aliens had been allowed to be registered without any
opposition on the part of the Government. It will thus be seen that,
contrary to what the majority believe, our Government has constantly
adopted the view that private residential lands do not fall under the
limitation contained in section 5 of Article XIII of the Constitution.
I do not question or doubt the nationalistic spirit permeating the
Constitution, but I will not permit myself to be blinded by any
sentimental feeling or conjectural considerations to such a degree as
to attribute to any of its provisions a construction not justified by or
beyond what the plain written words purport to convey. We need not
express any unnecessary concern over the possibility that entire towns
and cities may come to the hands of aliens, as long as we have faith in
our independence and in our power to supply any deficiency in the
Constitution either by its amendment or by Congressional action.
There should really have been no occasion for writing this dissent,
because the appellant, with the conformity of the appellee, had filed a
motion for the withdrawal of the appeal and the same should have
been granted outright. In Co Chiong vs. Dinglasan (p.
122, ante),decided only a few days ago, we reiterated the well-settled
rule that "a court should not pass upon a constitutional question and
decide a law to be unconstitutional or invalid unless such question is
raised by the the parties, and that when it is raised, if the record also
presents some other ground upon which the court may rest its
judgment, that course will be adopted and the constitutional question
will be left for consideration until a case arises in which a decision
upon such question will be unavoidable." In other words, a court will
always avoid a constitutional question, if possible. In the present case,
that course of action was not only possible but absolutely imperative. If
appellant's motion for withdrawal had been opposed by the appellee,
there might be some reasons for its denial, in view of section 4 of Rule
52 which provides that after the filing of appellee's brief, "the
withdrawal may be allowed by the court in its discretion." At any rate,
this discretion should always be exercised in favor of a withdrawal
where a constitutional question will thereby be avoided.
In this connection, let us describe the proceedings (called "arbitrary
and illegal" by Mr. Justice Tuason) that led to teh denial of the motion
for withdrawal. During the deliberation in which all the eleven members
were present, seven voted to allow and four to deny. Subsequently,
without any previous notice and when Mr. Justice Hontiveros was
absent, the matter was again submitted to a vote, and one Justice
(who previously was in favor of the withdrawal) reversed his stand, with
the result that the votes were five to five. This result was officially
released and the motion denied under the technicality provided in Rule
of Court No. 56, section 2. It is very interesting to observe that Mr.
Justice Hontiveros, who was still a member of the Court and could
have attended the later deliberation, if notified and requested,
previously voted for the granting of the motion. The real explanation for
excluding Mr. Justice Hontiveros, against my objection, and for the
reversal of the vote of one Justice who originally was in favor of the
withdrawal is found in the confession made in the majority opinion to
the effect that the circular of the Department of Justice instructing all
registers of deeds to accept for registration transfers of residential lots
to aliens, was an "interference with the regular and complete exercise
by this Court of its constitutional functions," and that "if we grant the

withdrawal, the result is that petitioner-appellant Alexander A. Krivenko

wins his case, not by a decision of this Court, but by the decision or
circular of the Department of Justice issued while this case was
pending before this Court." The zealousness thus shown in denying
the motion for wuthdrawal is open to question. The denial of course is
another way of assuming that the petitioner-appellant and the Solicitor
General had connived with the Department of Justice in a scheme not
only to interfere with the functions of this Court but to dispose of the
national patrimony in favor of aliens.
In the absence of any injunction from this Court, we should recognize
tha right of the Department of Justice to issue any circular it may deem
legal and proper on any subject, and the corollary right of the appellant
to take advantage thereof. What is most regrettable is the implication
that the Department of Justice, as a part of the Executive Department,
cannot be as patriotic and able as this Court in defending the
Constitution. If the circular in question is objectionable, the same can
be said of the opinion of the Secretary of Justice in 1945 in effect
prohibiting the registration of transfers of private residential lots in favor
of aliens, notwithstanding the pendency in this Court of the case of Oh
Cho vs. Director of Lands (43 Off. Gaz., 866), wherin according to the
appellant, the only question raised was whether, or not "an alien can
acquire a residential lot and register it in his name," and
notwithstanding the fact that in said case the appealed decision was in
favor of the alien applicant and that, as hereinbefore stated, the Court
of Appeals in another case (CA-G.R. No. 29) had renderd in 1943 a
decision holding that private residential lots are not included in the
prohibition in section 5 of Article XIII of the Constitution. And yet this
Court, failing to consider said opinion as an "interference," chose to
evade the only issue raised by the appellant and squarely met by the
appellee in the Oh Cho case which already required a decision on the
constitutional question resolved in the case at bar against, so to say,
the will of the parties litigant. In other words, the majority did not allow
the withdrawal of the present appeal not so much as to dispose of it on
the merits, but to annul the circular of the Department of Justice which
is, needless to say, not involved in this case. I cannot accept the
shallow excuse of the majority that the denial of the motion for
withdrawal was promted by the fear that "our indifference of today
might signify a permanent offense to the Constitution," because it
carries the rather immodest implication that this Court has a monopoly
of the virtue of upholding and enforcing, or supplying any deficiency in,
the Constitution. Indeed, the fallacy of the impliation is made glaring
when Senator Franscisco lost no time in introducing a bill that would
clarify the constitutional provision in question in the sense desired by
the majority. Upon the other hand, the majority should not worry about
the remoteness of the opportunity that will enable this Court to pass
upon this constitutional question, because we can take advance notice
of the fact that in Rellosa vs. Gaw Chee Hun (49 Off. Gaz., 4345), in
which the parties have already presented. But even disregarding said
case, I am sure that, in view of the recent newspaper discussion which
naturally reached the length and breadth of the country, there will be
those who will dispute their sales of residential lots in favor of aliens
and invoke the constitutional prohibition.
BENGZON, J., dissenting:
It is unnecessary to deliver at this time any opinion about the extent of
the constitutional prohibition. Both parties having agreed to writer finis
to the litigation, there is no obligation to hold forth on the issue. It is not
our mission to give advice to other person who might be interested to
give advice to other persons who might be interested to know the
validity or invalidity of their sales or purchases. That is the work of
lawyers and juriscounsults.
There is much to what Mr. Justice Padilla explains regarding any
eagerness to solve the constitutional problem. It must be remembered
that the other departments of the Government are not prevented from
passing on constitutional question arising in the exercise of their official
powers. (Cooley, Constitutional Limitations, 8th ed., p. 101.) This
Tribunal was not established, nor is it expected to play the role of an
overseer to supervise the other Government departments, with the
obligation to seize any opportunity to correct what we may believe to
be erroneous application of the constitutional mandate. I cannot agree
to the suggestion that the way the incumbent Secretary of Justice has
interpreted the fundamental law, no case will ever arise before the
court, because the registers of deeds under his command, will transfer
on thier books all sales to aliens. It is easy to perceive several
probabilities: (1) a new secretary may entertain opposite views; (2)
parties legally affected like heirs or or creditors of the seller may
wish to avoid the conveyance to aliens, invoking the constitutional
inhibition. Then, in a truly contested case, with opposing litigants
actively arguing their sides we shall be in a position to do full justice. It
is not enough that briefs as in this case have been filed; it is
desirable, perhaps essential, to make sure that in a motion for
reconsideration, or in a re-hearing in case of tie, our attention shall be
invited to points inadequately touched or improperly considered.
It is stated that sales to aliens of residential lots are currently being
effected. No matter. Those sales will be subject to the final decision we
shall reach in a properly submitted litigation. To spell necessity out of
the existence of such conveyances, might amount to begging the issue

with the assumption that such transfers are obviously barred by the
Organic Law. And yet sales to foreigners of residential lots have taken
place since our Constitution was approved in 1935, and no one
questioned their validity in Court until nine years later in 1945, after the
Japanese authorities had shown distaste for such transfers.
The Court should have, I submit, ample time to discuss this allimportant point, and reflect upon the conflicting politico-economic
philosophies of those who advocate national isolation against
international cooperation, and vice-versa. We could also delve into
several aspects necessarily involved, to wit:
(a) Whether the prohibition in the Constitution operated to curtail the
freedom to dispose of landowners at the time of its adoption; or
whether it merely affected the rights of those who should become
landowners after the approval of the Constitution;7
(b) What consequences would a ruling adverse to aliens have upon
our position and commitments in the United Nations Organization, and
upon our treaty-making negotiations with other nations of the worlds;
and
(c) When in 1941 Krivenko acquired this land he was a Russian citizen.
Under the treaties between the United States and Russia, were
Russian nationals allowed to acquire residential lots in places under
the jurisdiction of the United States? If so, did our Constitution have the
effect of modifying such treaty during the existence of the
Commonwealth Government?
The foregoing view and doubts induced me to vote for dismissal of the
appeal as requested by the parties, and for withholding of any ruling on
the constitutional prohibition. However, I am now ready to cast my
vote. I am convinced that the organic law bans the sales of agricultural
lands as they are popularly understood not including residential,
commercial, industrial or urban lots. This belief is founded on the
reasons ably expounded by Mr. Justice Paras, Mr. Justice Padilla and
Mr. Justice Tuason. I am particularly moved by the consideration that a
restricted interpretation of the prohibition, if erroneous or contrary to
the poeple's desire, may be remedied by legislation amplifying it;
whereas a liberal and wide application, if erroneous, would need the
cumbersome and highly expensive process of a constitutional
amendment.
PADILLA, J., dissenting:
The question submitted for decision is whether a parcel of land of
private ownership suitable or intended for residence may be alienated
or sold to an alien.
Section 5, Article XIII, of the Constitution provides:
Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to
individuals, corporations, or associations qualified to acquire
or hold lands of the public domain in the Philippines.
The majority holds that a parcel of land of privateownership suitable or
intended or used for residence is included in the term "private
agricultural land" and comes within the prohibition of the Constitution.
In support of the opinion that lands of private ownership suitable for
residence are included in the term "private agricultural land" and
cannot be alienated or sold to aliens, the majority invokes the decision
of this Court in Mapa vs. Insular Government (10 Phil., 175), which
holds that urban lands of the public domain are included in the term
"public agricultural land." But the opinion of the majority overlooks the
fact that the inclusion by this Court of public lands suitable for
residence in the term "public agricultural land" was due to the
classification made by the Congress of the United States in the Act of 1
July 1902, commonly known as the Philippine Bill. In said Act, lands of
the public domain were classified into agricultural, timber and mineral.
The only alienable or disposable lands of the public domain were those
belonging to the first class. Hence a parcel of land of the public domain
suitable for residence, which was neither timber nor mineral, could not
be disposed of or alienated unless classified as public agricultural land.
The susceptibility of a residential lot of the public domain of being
cultivated is not the real reason for the inclusion of such lot in the
classification of public agricultural land, for there are lands, such as
foreshore lands, which would hardly be susceptible of cultivation
(Ibaez de Aldecoa vs. Insular Government, 13 Phil., 159, 167-168),
and yet the same come under the classification of public agricultural
land. The fact, therefore, that parcels of land of the public domain
suitable for residence are included in the classification of public
agricultural land, is not a safe guide or index of what the framers of the
Constitution intended to mean by the term "private agricultural land." It
is contrary to the rules of statutory construction to attach technical
meaning to terms or phrases that have a common or ordinary meaning
as understood by he average citizen.

At the time of the adoption of the Constitution (8 February 1935), the

Public Land Act in force was Act No. 2874. Under this Act, only citizens
of the Philippine Islands or of the United States and corporations or
associations described in section 23 thereof, and citizens of countries
the laws of which grant to citizens of the Philippine Islands the same
right to acquire the public land as to their own citizens, could acquire
by purchase agricultural land of the public domain (section 23, Act No.
2874). This was the general rule. There was an exception. Section
24of the Act provides:
No person, corporation, association or partnership other than
those mentioned in the last preceding section may acquire or
own agricultural public land or land of any other
denomination or classification, not used for industrial or
residence purposes, that is at the time or was originally,
really or presumptively, of the public domain, or any
permanent improvement thereon, or any real right on such
land and improvement:Provided, however, That persons,
corporations, associations, or partnerships which at the date
upon which this Act shall take effect, hold agricultural public
lands or land of any other denomination not used for
industrial or residence purposes, that belonged originally,
really or presumptively, to the public domain, or permanent
improvements on such lands, or a real right upon such lands
and improvements, having acquired the same under the
laws and regulations in force at the date of such acquisition,
shall be authorized to continue holding the same as if such
persons, corporations, associations, or partnerships were
qualified under the last preceding section; but they shall not
encumber, convey, or alienate the same to persons,
corporations, associations or partnerships not included in
section twenty-three of this Act, except by reason of
hereditary succession, duly legalized and acknowledged by
competent Courts. (Emphasis supplied.)
Section 57 of the Act, dealing with lands of the public domain suitable
for residential, commercial, industrial, or other productive purposes
other than agricultural, provides:
Any tract of land comprised under this title may be leased or
sold, as the case may be, to any person, corporation, or
association authorized to purchase or lease public lands for
agricultural purposes. . . .Provided further, That any person,
corporation, association, or partnership disqualified from
purchasing public land for agricultural purposes under the
provisions of this Act, may purchase or lease land included
under this title suitable for industrial or residence purposes,
but the title or lease granted shall only be valid while such
land issued for the purposes referred to. (Emphasis
supplied.)

with timber, mineral and private agricultural lands, constitute the

mainstay of the nation. Act No. 2874 was in force for nearly sixteen
years from 1919 to 1935. There is nothing recorded in the journals
of proceedings of the Constituent Assembly regarding the matter which
would have justified a departure from the policy theretofore adopted.
If under the law in force at the time of the adoption of the Constitution,
aliens could acquire by purchase or lease lands of the public domain,
that were neither timber nor mineral, held for industrial or residence
purposes, how can it be presumed that the framers of the Constitution
intended to exclude such aliens from acquiring by purchase private
lands suitable for industrial or residence purposes? If pursuant to the
law in force at the time of the adoption of the Constitution, lands of the
public domain and improvements thereon acquired or held for
industrial or residence purposes were not included in the prohibition
found in section 121 of ActNo. 2874, there is every reason for believing
that the framers of the Constitution, who were familiar with the law then
in force, did not have the intention of applying the prohibition contained
in section 5, Article XIII, of the Constitution to lands of private
ownership suitable or intended or used for residence, there being
nothing recorded in the journals of proceedings of the Constituent
Assembly regarding the matter which, as above stated, would have
justified a departure from the policy then existing. If the term "private
agricultural land" comprehends lands of private ownership suitable or
intended or used for residence, as held by the majority, there was no
need of implementing a self-executory prohibition found in the
Constitution. The prohibition to alienate such lands found in section
123 of Commonwealth Act No. 141 is a clear indication and proof that
section 5, Article XIII, of the Constitution does not apply to lands of
private ownership suitable or intended or used for residence. The term
"private agricultural land" means privately owned lands devoted to
cultivation, to the raising of agricultural products, and does not include
urban lands of private ownership suitable for industrial or residence
purposes. The use of the adjective "agricultural" has the effect of
excluding all other private lands that are not agricultural. Timber and
mineral ands are not, however, included among the excluded, because
these lands could not and can never become private lands. From the
land grants known as caballerias and peonias under the Laws of Indies
down to those under the Royal Decrees of 25 June 1880 and 13
February 1894, the Philippine Bill, Act No. 926, the Jones Law, Act No.
2874, the Constitution, and Commonwealth Act No. 141, timber and
mineral lands have always been excluded from alienation. The repeal
by sections 23, 60, 123 of Commonwealth Act No. 141 of the exception
provided for in sections 24, 57, 121 of Act No. 2874, did not change the
meaning of the term "private agricultural land," as intended by the
framers of the Constitution and understood by the people that adopted
it.
The next question is whether the court below was justified under the in
confirming the refusal of the Register of Deeds of Manila to record the
sale of the private land for residence purposes to the appellant who is
an alien.

Section 121 of the Act provides:

No land originally acquired in any manner under the
provisions of the former Public Land Act or of any other Act,
ordinance, royal order, royal decree, or any other provision
of law formerly in force in the Philippine Islands with regard
to public lands, terrenos baldios y realengos, or lands of any
other denomination that were actually or presumptively of
the public domain, or by royal grant or in any other form, nor
any permanent improvement on such land, shall be
encumbered, alienated, or conveyed, except to persons,
corporations, or associations who may acquire land of the
public domain under this Act; . . .Provided, however, That
this prohibition shall not be applicable to the conveyance or
acquisition by reason of hereditary succession duly
acknowledged and legalized by competent Courts, nor to
lands and improvements acquired or held for industrial or
residence purposes, while used for such purposes: . . .
(Emphasis supplied.)
Under and pursuant to the above quoted provisions of Act No. 2874,
lands of the public domain, that were neither timber nor mineral, held
for industrial or residence purposes, could be acquired by aliens
disqualified from acquiring by purchase or lease public agricultural
lands (sections 24, 57, 121, Act No. 2874). The delegates to the
Constituent Assembly were familiar with the provisions of the Public
Land Act referred to. The prohibition to alienate public agricultural
lands to disqualified persons, corporations or associations did not
apply to "lands and improvements acquired or held for industrial or
residence purposes, while used for such purposes." Even under the
provisions of Act No. 926, the first Public Land Act, lots for townsites
could be acquired by any person irrespective of citizenship, pursuant to
section 47 of the said Act. In spite of the nationalistic spirit that
pervades all the provisions of Act No. 2874, the Philippine Legislature
did not deem it necessary to exclude aliens from acquiring and owning
lands of the public domain suitable for industrial or residence
purposes. It adopted the policy of excluding aliens from acquiring
agricultural lands of the public domain not "suitable for residential,
commercial, industrial, or other productive purposes," which, together

There is no evidence to show the kind of land, the deed of sale of

which is sought to be recorded by the appellant whether it is one of
those described in section 123 of Commonwealth Act No. 141; or a
private land that had never been a part of the public domain
(Carino vs. Insular Government, 212 U.S., 449; Oh Cho vs. Director of
Lands, 43 Off. Gaz., 866). If it is the latter, the prohibition of section
123 of Commonwealth Act No. 141 does not apply. If it is the former,
section 123 of Commonwealth Act No. 141, which providesthat
No land originally acquired in any manner under the
provisions of any previous Act, ordinance, royal order, royal
decree, or any other provision of law formerly in force in the
Philippines with regard to public lands,terrenos baldios y
realengos, or lands of any other denomination that were
actually or presumptively of the public domain, or by royal
grant or in any other form, nor any permanent improvement
on such land, shall be encumbered, alienated, or conveyed,
except to persons, corporations or associations who may
acquire land of the public domain under this Act or to
corporate bodies organized in the Philippines whose
charters authorize them to do so: . . .
is similar in nature to section 121 of Act No. 2874. This Court held the
last mentioned section unconstitutional, for it violates section 3 of the
Act of Congress of 29 August 1916, commonly known as the Jones
Law (Central Capizvs. Ramirez, 40 Phil., 883). Section 123 of
Commonwealth Act No. 141, following the rule laid down in the
aforecited case, must also be declared unconstitutional, for it violates
section 21 (1), Article VI, of the Constitution, which is exactly the same
as the one infringed upon by section 121 of Act No. 2874. This does
not mean that a law may not be passed by Congress to prohibit
alienation to foreigners of urban lands of private ownership; but in so
doing, it must avoid offending against the constitutional provision
referred to above.
Before closing, I cannot help but comment on the action taken by the
Court in considering the merits of the case, despite the withdrawal of

the appeal by the appellants, consented to by the appellee. If

discretion was to be exercised, this Court did not exercise it wisely.
Courts of last resort generally avoid passing upon constitutional
questions if the case where such questions are raised may be decided
on other grounds. Courts of last resort do not express their opinion on
a consitutional question except when it is the very lis
mota (Yangco vs. Board of Public Utility Commissioners, 36 Phil., 116,
120; Co Chiong vs. Dinglasan, p. 122, ante). Moreover, the
interpretation of the provisions of the Constitution is no exclusive of the
courts. The other coordinate branches of the government may interpret
such provisions acting on matters coming within their jurisdiction. And
although such interpretation is only persuasive and not binding upon
the courts, nevertheless they cannot be deprived of such power. Of
course, the final say on what is the correct interpretation of a
constitutional provision must come from and be made by this Court in
an appropriate action submitted to it for decision. The correct
interpretation of a constitutional provision is that which gives effect to
the intent of its framers and primarily to the understanding of such
provision by the poeple that adopted it. This Court is only an interpreter
of the instrument which embodies what its framers had in mind and
especially what the people understood it to be when they adopted it.
The eagerness of this Court to express its opinion on the constitutional
provision involved in this case, notwithstanding of the withdrawal of the
appeal, is unusualf or a Court of last resort. It seems as if it were afraid
to be deprived by the other coordinate branches of the government of
its prerogative to pass upon the constitutional question herein involved.
If all the members of the Court were unanimous in the interpretation of
the constitutional provision under scrutiny, that eagerness might be
justified, but when some members of the Court do not agree to the
interpretation placed upon such provision, that eagerness becomes
recklessness. The interpretation thus placed by the majority of the
Court upon the constitutional provision referred to will be binding upon
the other coordinate branches of the government. If, in the course of
time, such opinion should turn out to be erroneous and against the
welfare of the country,an amendment to the Constitution a costly
process would have to be proposed and adopted. But, if the Court
had granted the motion for the withdrawal of the appeal, it would not
have to express its opinion upon the constitutional provision in
question. It would let the other coordinate branches of the Government
act according to their wisdom, foresight and patriotism. They, too,
possess those qualities and virtues. These are not of the exclusive
possession of the members of this Court. The end sought to be
accomplished by the decision of this Court may be carried out by the
enactment of a law. And if the law should turn out to be against the
well-being of the people, its amendment or repeal would not be as
costly a process as a constitutional amendment.
In view of the denial by this Court of the motion to dismiss the appeal,
as prayed for by the appellant and consented to by the appellee, I am
constrained to record my opinion, that, for the reasons hereinbefore set
forth, the judgment under review should be reversed.

TUASON, J., dissenting:

The decision concludes with the assertion that there is no choice. "We
are construing" it says, "the Constitution as we see it and not as we
may wish it to be. If this is the solemn mandate of the Constitution, we
cannot compromise it even in the name of equity." We wish deep in our
heart that we were given the light to see as the majority do and could
share their opinion. As it is, we perceive things the other way around.
As we see it, the decision by-passed what according to our humble
understanding is the plain intent of the Constitution and groped out of
its way in search of the ideal result. The denial by this Court of the
motion to withdraw the appeal to which the Solicitor General gave his
conformity collides with the professed sorrow that the decision cannot
be helped.
Section 5, Article XIII, of the Constitution reads:
5. Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to
individuals, corporations, or associations qualified to acquire
or hold lands of the public domain in the Philippines.
The sole and simple question at issue is, what is the meaning of the
term "agricultural land" as used in this section? Before answering the
question, it is convenient to refresh our memory of the pertinent rule in
the interpretation of constitutions as expounded in decisions of courts
of last resort and by law authors.
It is a cardinal rule in the interpretation of constitutions that
the instrument must be a construed so to give effect to the
intention of the people who adopted it. This intention is to be
sought in the constitution itself, and the apparent meaning of
the words employed is to be taken as expressing it, except in
cases where the assumption would lead to absurdity,

ambiguity, or contradiction. Black on Interpretation of Laws,

2nd ed., p. 20.)
Every word employed in the constitution is to be expounded
in its plain, obvious, and common sense, unless the context
furnishes some ground to control, qualify, or enlarge it.
Constitutions are not designed for metaphysical or logical
subtleties, for niceties of expression, for critical propriety, for
elaborate shades of meaning, or for the exercise of
philosophical acuteness or judicial research. They are
instruments of a practical nature founded on the common
business of human life adapted to common wants, designed
for common use, and fitted for common understandings. The
people make them, the people adopt them, the people must
be supposed to read them with the help of common sense,
and cannot be presumed to admit in them any recondite
meaningor any extraordinary gloss. (1 Story, Const. sec.
451.)
Marshall , Ch. J., says:
The framers of the Constitution, and the people who adopted
it, "must be understood to have employed words in their
natural sense, and to have intended what they have said."
(Gibbons vs. Ogdon, 9 Wheat, 1, 188; 6 Law. ed., 23).
Questions as to the wisdom, expediency, or justice of
constitutional provisions afford no basis for construction
where the intent to adopt such provisions is expressed in
clear and unmistakable terms. Nor can construction read into
the provisions of a constitution some unexpressed general
policy or spirit, supposed to underline and pervade the
instrument and to render it consonant to the genius of the
institutions of the state. The courts are not at liberty to
declare an act void because they deem it opposed to the
spirit of the Constitution. (12 C.J., 702-703.)
There is no obscurity or ambiguity in the section of the Constitution
above quoted, nor does a literal interpretation of the words "agricultural
land" lead to any un-the majority opinion, the phrase has no technical
meaning, and the same could not have been used in any sense other
than that in which it is understood by the men in the street.
That there are lands of private ownership will not be denied, inspite of
the fiction tha all lands proceed from the sovereign. And, that lands of
private ownership are known as agricultural, residential, commercial
and industrial, is another truth which no one can successfully dispute.
In prohibiting the alienation of private agricultural land to aliens, the
Constitution, by necessary implication, authorizes the alienation of
other kinds of private property. The express mention of one thing
excludes all others of the same kind.
Let us then ascertain the meaning of the word "agricultural" so that by
process of elimination we can see what lands do not fall within the
purview of the constitutional inhibition. Webster's New international
Dictionary defines this word as "of or pertaining to agriculture
connected with, or engaged in, tillage; as, the agricultural class;
agricultural implements, wages, etc." According to this definition and
according to the popular conception of the word, lands in cities and
towns intended or used for buildings or other kinds of structure are
never understood to mean agricultural lands. They are either
residential, commercial, or industrial lands. In all city plannings,
communities are divided into residential, commercial and industrial
sections. It would be extremely out of the ordinary, not to say
ridiculous, to imagine that the Constitutional Convention considered a
lot on the Escolta with its improvement as agricultural land.
If extrinsic evidence is needed, a reference to the history of the
constitutional provision under consideration will dispel all doubts that
urban lands were in the minds of the framers of the Constitution as
properties that may be assigned to foreigners.
Dean Aruego, himself a member of the Constitutional Convention, is
authority for the statement that the committee on nationalization and
preservation of lands and other natural resources in its report
recommended the incorporation into the Constitution of the following
provision:
SEC. 4. Save in cases of hereditary succession, no land of
private ownership shall be transferred or assigned by the
owner thereof except to individuals, corporations, or
associations qualified to acquire or hold lands of the public
domain in the Philippine Islands; and the Government shall
regulate the transfer or assignment of land now owned by
persons, or corporations,or associations not qualified under
the provisions of this Constitution to acquire or hold lands in
the Philippine Islands.

In Article XIII, entitled "General Provisions," of the first draft of the

Constitution, the sub-committee of seven embodied the following
provision which had been recommended in the reports of the
committee on agricultural development, national defense, industry, and
nationalization and preservation of lands and other natural resources:
SEC. 16. Save in cases of hereditary succession, no land of
private ownership shall be transferred or assigned by the
owner thereof except to individuals, corporations, or
associations qualified to acquire or hold lands of the public
domain in the Philippines.
But on January 22, 1935, the sub-committee of seven submitted to the
Convention a revised draft of the articleo n General Provisions of the
first draft, which revised draft had been prepared by the committee in
consultation with President Quezon. The revised draft as it touches
private lands provides as follows:
Save in cases of hereditary succession, no agricultural land
of private ownership shall be transferred or assigned by the
owner thereof except to individuals, corporations, or
associations qualified to acquire or hold lands, of the public
domain in the Philippine Islands. (2 The Framing of the
Philippine Constitution, Aruego, 595-599.)
The last-quoted proposal became section 5 of Article XIII of the
Constitution in its final form with sligh alteration in the phraseology.
It will thus be seen that two committees in their reports and the subcommittee of seven in its first draft of the Constitution all proposed to
prescribe the transfer to non-Filipino citizens of any land of private
ownership without regard to its nature or use, but that the last
mentioned sub-committee later amended that proposal by putting the
word "agricultural" before the word "land." What are we to conclude
from this modification? Its self-evident purpose was to confine the
prohibition to agricultural lands, allowing the ownership by foreigners of
private lands that do not partake of agricultural character. The insertion
of the word "agricultural" was studied and deliberated, thereby
eliminating any possibility that its implication was not comprehended.
In the following paragraphs we shall, in our inadequate way, attempt to
show that the conclusions in this Court's decision are erroneous either
because the premises are wrong or because the conclusions do not
follow the premises.
According to the decision, the insertion of the word "agricultural" was
not intended to change the scope of the provision. It says that "the
wording of the first draft was amended for no other purpose than to
clarify concepts and avoid uncertainties."
If this was the intention of the Constitutional Assembly, that could not
have devised a better way of messing up and obscuring the meaning
of the provision than what it did. If the purpose was "to clarify concepts
and avoid uncertainties," the insertion of the word "agricultural" before
the word "land" produced the exact opposite of the result which the
change was expected to accomplish as witness the present sharp
and bitter controversy which would not have arisen had they let well
enough alone.
But the assumption is untenable. To brush aside the introduction of the
word "agricultural" into the final draft as "merely one of words" is utterly
unsupported by evidence, by the text of the Constitution, or by sound
principles of construction. There is absolutely no warrant or the
statement that the Constitutional Convention, which was guided by
wise men, men of ability and experience in different fields of endeavor,
used the termafter mature deliberation and reflection and after
consultation with the President, without intending to give it its natural
signification and connotation. "We are not at liberty to presume that the
framers of the Constitution, or the people who adopted it, did not
understand the force of language." (People vs. Rathbone, 32 N.Y.S.,
108.) The Constitution will be scanned in vain for any reasonable
indication that its authors made the change with intention that it should
not operate according to the rules of grammar and the ordinary
process of drawing logical inferences. The theory is against the
presumption, based on human experience, that the framers of a
constitution "have expressed themselves in careful and measured
terms, corresponding with the immense importance of the powers
delegated, leaving as little as possible to implication." (1 Cooley's
Constitutional Limitations, 8th ed., 128, 129.) "As men, whose intention
require no concealment, generally employ the words which most
directly and aptly express the ideas they intend to convey, the
enlightened patriots who framed our constitution, and the people who
adopted it, must be understood to have employed words in their
natural sense and to have intended what they have said."
(Gibbons vs. Ogden, ante.)
When instead of prohibiting the acquisition of private land of any kind
by foreigners, as originally proposed, the prohibition was changed to

private agricultural lands, the average man's faculty of reasoning tells

him that other lands may be acquired. The elementary rules of speech
with which men of average intelligence, and, above all, the members of
the Constitutional Assembly were familiar, inform us that the object of a
descriptive adjective is to specify a thing as distinct from another. It is
from this process of reasoning that the maxim expressio unius est
exclusio alterius stems; a familiar rule of interpretation often quoted,
and admitted as agreeable to natural reason.
If then a foreigner may acquire private lands that are not agricultural,
what lands are they? Timber land or mineral land, or both? As the
decision itself says these lands are not susceptible of private
ownership, the answer can only be residential, commercial, industrial
or other lands that are not agricultural. Whether a property is more
suitable and profitable to the owners as residential, commercial or
industrial than if he devotes it to the cultivation of crops is a matter that
has to be decided according to the value of the property, its size, and
other attending circumstances.
The main burden of this Court's argument is that, as lands of the public
domain which are suitable for home building are considered
agricultural land, the Constitution intended that private residential,
commercial or industrial lands should be considered also agricultural
lands. The Court says that "what the members of the Constitutional
Convention had in mind when they drafted the Constitution was this
well-known classification (timber, mineral and agricultural) and its
technical meaning then prevailing."
As far as private lands are concerned, there is no factual or legal basis
for this assumption. The classification of public lands was used for one
purpose not contemplated in the classification of private lands. At the
outset, it should be distinctively made clear that it was this Court's
previous decisions and not an Act of Congress which declared that
public lands which were not forest or mineral were agricultural lands.
Little reflection on the background of this Court's decisions and the
nature of the question presented in relation to the peculia rprovisions of
the enactments which came up for construction, will bring into relief the
error of applying to private lands the classification of public lands.
In the first place, we cannot classify private lands in the same manner
as public lands for the very simple and manifest reason that only lands
pertaining to one of the three groups of public lands agricultural
can find their way into the hands of private persons. Forest lands and
mineral lands are preserved by the State for itself and for posterity.
Granting what is possible, that there are here and there forest lands
and mineral lands to which private persons have obtained patents or
titles, it would be pointless to suppose that such properties are the
ones which section 5 of Article XIII of the Constitution wants to
distinguish from private agricultural lands as lienable. The majority
themselves will not admit that the Constitution which forbids the
alienation or private agricultural lands allows the conveyance of private
forests and mines.
In the second place, public lands are classified under special
conditions and with a different object in view. Classification of public
lands was and is made for purposes of administration; for the purpose
principally of segregating lands that may be sold from lands that should
be conserved. The Act of July 1, 1902, of the United States Congress
designated what lands of the public domain might be alienated and
what should be kept by the State. Public lands are divided into three
classes to the end that natural resources may be used without waste.
Subject to some exceptions and limitation, agricultural lands may be
disposed of by the Government. Preservation of forest and mineral
lands was and is a dominant preoccupation. These are important parts
of the country's natural resources. Private non-agricultural land does
not come within the category of natural resources. Natural resources
are defined in Webster's Standard Dictionary as materials supplied or
produced by nature. The United States Congress evinced very little if
any concern with private lands.
It should also be distinctively kept in mind that the Act of Congress of
the United States above mentioned was an organic law and dealt with
vast tracts of untouched public lands. It was enacted by a Congress
whose members were not closely familiar with local conditions
affecting lands. Under the circumstances, it was natural that the
Congress employed "words in a comprehensive sense as expressive
of general ideas rather than of finer shades of thought or of narrow
distinctions. "The United States Congress was content with laying
down a broad outline governing the administration, exploitation, and
disposition of the public wealth, leaving the details to be worked out by
the local authorities and courts entrusted with the enforcement and
interpretation of the law.
It was a result of this broad classification that questions crept for a
definition of the status of scattered small parcels of public lands that
were neither forest, mineral, nor agricultural, and with which the
Congress had not bothered itself to mention separately or specifically.
This Court, forced by nature of its duty to decide legal controversies,
ruled that public lands that were fit for residential purposes, public
swamps and other public lands that were neither forest nor mineral,

were to be regarded as agricultural lands. In other words, there was an

apparent void, often inevitable in a law or constitution, and this Court
merely filled that void. It should be noted that this Court did not say that
agricultural lands and residential lands are the same or alike in their
character and use. It merely said that for the purpose of judging their
alienability, residential, commercial or industrial lands should be
brought under the class of agricultural lands.
On the other hand, section 5 of Article XIII of the Constitution treats of
private lands with a different aim. This Court is not now confronted with
any problem for which there is no specific provision, such as faced it
when the question of determining the character of public residential
land came up for decision. This Court is not called to rule whether a
private residential land is forest, mineral or agricultural. This Court is
not, in regard to private lands, in the position where it found itself with
reference to public lands, compelled by the limited field of its choice for
a name to call public residential lands, agricultural lands. When it
comes to determining the character of private non-agricultural lands,
the Court's task is not to compare it with forests, mines and agricultural
lands, to see which of these bears the closest resembrance to the land
in question. Since there are no private timber nor mineral lands, and if
there were, they could not be transferred to foreigners, and since the
object of section 5 of Article XIII of the Constitution is radically at
variance withthat of the laws covering public lands, we have to have
different standards of comparison and have to look of the intent of this
constitutional provision from a different angle and perspective. When a
private non-agricultural land demands to know where it stands, we do
not acquire, is it mineral, forest or agricultural? We only ask, is it
agricultural? To ascertain whether it is within the inhibition of section 5
of Article XIII.

is the sense fixed upon the words in legal and constitutional history
where they have been employed for the protection of popular rights." (1
Cooley's Constitutional Limitations, 8th ed., 132-133.) Viewed from this
angle, "agricultural land" does not possess the quality of a technical
term. Even as applied to public lands, and even among lawyers and
judges, how many are familiar with the decisions of this Court which
hold that public swamps and public lands more appropriate for
buildings and other structures than for agriculture are agricultural
lands? The same can be truthfully said of members of the
Constitutional Assembly.
The speeches of delegates Montilla and Ledesma cannot serve as a
means of interpretation. The sentiments expressed in those speeches,
like the first drafts of section 5 of Article XIII, may have reflected the
sentiments of the Convention in the first stages of the deliberation or
down to its close. If they were, those sentiments were relaxed and not
given full sway for reasons on which we need not speculate. Speeches
in support of a project can be a valuable criterion for judging the
intention of a law or constitution only if no changes were afterward
affected. If anything, the change in section 5 of Article XIII wrought in
the face of a strong advocacy for complete and absolute
nationalization of all lands, without exception, offers itself as the best
proof that to the framers of the Constitution the change was not
"merely one of words" but represented something real and substantial.
Firm and resolute convictions are expressed in a document in strong,
unequivocal and unqualified language. This is specially true when the
instrument is a constitution, "the most solemn and deliberate of human
writings, always carefully drawn, and calculated for permanent
endurance."

The last question in turn resolves itself into what is understood by

agricultural land. Stripped of the special considerations which dictated
the classification of public lands into three general groups, there is no
alternative but to take the term "agricultural land" in its natural and
popular signification; and thus regarded, it imports a distinct
connotation which involves no absurdity and no contradiction between
different parts of the organic law. Its meaning is that agricultural land is
specified in section 5 of Article XIII to differentiate it from lands that are
used or are more suitable for purposes other than agriculture.

The decision quotes from the Framing of the Constitution by Dean

Aruego a sentence which says that one of the principles underlying the
provision of Article XIII of the Constitution is "that lands, minerals,
forests and other natural resources constitute the exclusive heritage of
the Filipino Nation." In underlying the word lands the Court wants to
insinuate that all lands without exceptions are included. This is nothing
to be enthusiastic over. It is hyperbole, "a figure of speech in which the
statement expresses more than the truth" but "is accepted as a legal
form of expression." It is an expression that "lies but does not deceive."
When we say men must fight we do not mean all men, and every one
knows we don't.

It would profit us to take notice of the admonition of two of the most

revered writers on constitutional law, Justice Story and Professor
Cooley:

The decision says:

"As a general thing, it is to be supposed that the same word is used in

the same sense wherever it occurs in a constitution. Here again,
however, great caution must be observed in applying an arbitrary rule;
for, as Mr. Justice Story has well observed; `It does not follow, either
logically or grammatically, that because a word is found in one
connection in the Constitution with a definite sense, therefore the same
is to be adopted in every other connection in which it occurs. This
would be to suppose that the framers weighed only the force of single
words, as philologists or critics, and not whole clauses and objects, as
statesmen and practical reasoners. And yet nothing has been more
common than to subject the Constitution to this narrow and
mischievous criticism. Men of ingenious and subtle minds, who seek
for symmetry and harmony in language, having found in the
Constitution a word used in some sense which falls in with their
favorite theory of interpreting it, have made that the standard by which
to measure its use in every other part of the instrument. They have
thus stretched it, as it were, on the bed of Procrustes, lopping off its
meaning when it seemed too large for their purposes, and extending it,
when it seemed too short. They have thus distorted it to the most
unnatural shapes, and crippled where they have sought only to adjust
its proportions according to their own opinions? And he gives many
instances where, in the National Constitution, it is very manifest the
same word is employed in different meanings. So that, while the rule
may be sound as one of presumption merely, its force is but slight, and
it must readily give way to a different intent appearing in the
instrument." (1 Cooley's Constitutional Limitations, 8th ed., 135.)
As to the proposition that the words "agricultural lands" have been
given a technical meaning and that the Constitution has employed
them in that sense, it can only be accepted in reference to public lands.
If a technical import has been affixed to the term, it can not be
extended to private lands if we are not to be led to an absurdity and if
we are avoid the charge that we are resorting to subtle and ingenious
refinement to force from the Constitution a meaning which its framers
never held. While in the construction of a constitution words must be
given the technical meaning which they have acquired, the rule is
limited to the "well-understood meaning" "which the people must be
supposed to have had in view in adopting them." To give an example.
"When the constitution speaks of an ex post facto law, it means a law
technically known by that designation; the meaning of the phrase
having become definite in the history of constitutional law, and
being so familiar to the people that it is not necessary to employ
language of a more popular character to designate it." In reality, this is
not a departure from the general rule that the language used is to be
taken in the sense it conveys to the popular mind, "for the technical
sense in these cases is the sense popularly understood, because that

It is true that in section 9 of said Commonwealth Act No.

141,"alienable or disposable public lands" which are the
same as "public agricultural lands" under the Constitution,
are classified into agricultural, residential, commercial,
industrial and for other purposes. This simply means that the
term "public agricultural lands" has both a broad and a
particular meaning. Under its broad or general meaning, as
used in the Constitution, it embraces all lands that are
neither timber nor mineral. This broad meaning is
particularized in section 9 of Commonwealth Act No. 141
which classifies "public agricultural lands" for purposes of
alienation or disposition, into lands that are strictly
agricultural or actually devoted to cultivation for agricultural
purposes; lands that are residential; commercial; industrial;
or lands for other purposes. The fact that these lands are
made alienable or disposable under Commonwealth Act No.
141, in favor of Filipino Citizen, is a conclusive indication of
their character as public agricultural lands under said statute
and under the Constitution."
If I am not mistaken in my understanding of the line of reasoning in the
foregoing passage, my humble opinion is that there is no logical
connection between the premise and the conclusion. What to me
seems clearly to emerge from it is that Commonwealth Act No. 141, so
far from sustaining that Court's theory, actually pulls down its case
which it has built upon the foundation of parallel classification of public
and private lands into forest, mineral and agricultural lands, and the
inexistence of such things as residential, industrial or commercial
lands. It is to be noted that Act No. 141, section 9, classifies disposable
lands into agricultural, industrial, residential, commercial, etc. And
these are lands of the public domain.
The fact that the provisions regarding alienation of private lands
happens to be included in Article XIII, which is entitled "Conservation
and Utilization of Natural Resources," is no ground for treating public
lands and private lands on the same footing. The inference should
rather be the exact reverse. Agricultural lands, whether public or
private, are natural resources. But residential, commercial, and
industrial lands, as we have seen, are not natural resources either in
the sense these words convey to the popular mind or as defined in the
dictionary. This fact may have been one factor which prompted the
elimination of private non-agricultural lands from the range of the
prohibition, along with reasons, of foreign policy, economics and
politics.

From the opinion of Secretary of Justice Jose A. Santos in 1939, the

majority can not derive any comfort unless we cling to the serious
argument that as public lands go so go private lands. In that opinion
the question propounded was whether a piece of public land which
was more profitable as a homesite might not be sold and considered
as agricultural. The illustrious Secretary answered yes, which was
correct. But the classification of private lands was not directly or
indirectly involved. It is the opinion of the present Secretary of Justice
that is to the point. If the construction placed by the law-officer of the
government on a constitutional provision may properly be invoked, as
the majority say but which I doubt, as representing the true intent of the
instrument, this Court, if it is to be consistent, should adopt Secretary
Ozaeta's view. If the Solicitor General's attitude as interested counsel
for the government in a judicial action is as the decision also
suggests but which, I think, is still more incorrect both in theory and in
practice then this Court should have given heed to the motion for
withdrawal of the present appeal, which had been concurred in by the
Solicitor General in line presumably with the opinion of the head of his
department.
The Court fears that "this constitutional purpose of conserving
agricultural resources in the hands of Filipino citizens may easily be
defeated by the Filipino citizens themselves who may alienate their
agricultural lands in favor of aliens." It reasons that "it would certainly
be futile to prohibit the alienation of public agricultural lands to aliens if,
after all, they may be freely so alienated upon their becoming private
agricultural lands in the hands of Filipino citizens." Sections122 and
123 of Act No. 141 should banish this fear. These sections, quoted and
relied upon in the majority opinion, prevent private lands that have
been acquired under any of the public land laws from falling into alien
possession in fee simple. Without this law, the fear would be wellfounded if we adopt the majority's theory, which we precisely reject,
that agricultural and residential lands are synonymous, be they public
or private. The fear would not materialize under our theory, that only
lands which are not agricultural may be owned by persons other than
FIlipino citizens.
Act No. 141, by the way, supplies the best argument against the
majority's interpretation of section 5 of Article XIII. Prohibiting the
acquisition by foreigners of any lands originally acquired in any manner
under its provisions or under the provisions of any previous law,
ordinace, royal order, royal decree, or any other law formerly enforced
in the Philippines with regard to public lands, etc., it is a mute eloquent
testimony that in the minds of the legislature, whose interpretation the
majority correctly say should be looked to as authoritative, the
Constitution did not carry such prohibition. For if the Constitution
already barred the alienation of lands of any kind in favor of aliens, the
provisions of sections 122 and 123 of Commonwealth Act No. 141
would have been superfluous.
The decision says that "if under Article XIV section 8, of the
Constitution, an alien may not even operate a small jeepney for hire, it
is certainly not hard to understand that neither is he allowed to own a
piece of land." There is no similitude between owning a lot for a home
or a factory or a store and operating a jeepney for hire. It is not the
ownership of a jeepney that is forbidden; it is the use of it for public
service that is not allowed. A foreigner is not barred from owning the
costliest motor cars, steamships or airplanes in any number, for his
private use or that of his friends and relatives. He can not use a
jeepney for hire because the operation of public utilities is reserved to
Filipino nationals, and the operation of a jeepney happens to be within
this policy. The use of a jeepney for hire maybe insignificant in itself but
it falls within a class of industry that performs a vital function in the
country's economic life, closely associated with its advancing
civilization, supplying needs so fundamental for communal living and
for the development of the country's economy, that the government
finds need of subjecting them to some measure of control and the
Constitution deems it necessary to limit their operation by Filipino
citizens. The importance of using a jeepney for hire cannot be sneered
at or minimized just as a vote for public office by a single foreign citizen
can not be looked at with a shrug of the shoulder on the theory that it
would not cause a ripple in the political complexion or scene of the
nation.
This Court quotes with approval from the Solicitor General's brief this
passage: "If the term `private agricultural lands' is to be construed as
not including residential lots or lands of similar nature, the result will be
that aliens may freely acquire and possess not only residential lots and
houses for themselves but entire subdivisions and whole towns and
cities, and that they may validly buy and hold in their names lands of
any area for building homes, factories, industrial plants, fisheries,
hatcheries, schools, health and vacation resorts, markets, golf
courses, playgrounds, airfields and a host of other uses and purposes
that are not, in appellant's words, strictly agricultural." Arguments like
this have no place where there is no ambiguity in the constitution or
law. The courts are not at liberty to disregard a provision that is clear
and certain simply because its enforcement would work inconvenience
or hardship or lead to what they believe pernicious results. Courts have
nothing to do with inconvenience or consequences. This role is
founded on sound principles of constitutional government and is so
well known as to make citations of authorities presumptuous.

Granting the possibility or probability of the consequences which this

Court and the Solicitor General dread, we should not overlook the fact
that there is the Congress standing guard to curtail or stop such
excesses or abuses if and when the menace should show its head.
The fact that the Constitution has not prohibited, as we contend, the
transfer of private non-agricultural lands to aliens does not prevent the
Congress from passing legislation to regulate or prohibit such transfer,
to define the size of private lands a foreigner may possess in fee
simple, or to specify the uses for which lands may be dedicated, in
order to prevent aliens from conducting fisheries, hatcheries, vacation
resorts, markets, golf-courses, cemeteries. The Congress could, if it
wants, go so far as to exclude foreigners from entering the country or
settling here. If I may be permitted to guess, the alteration in the
original draft of section 5 of Article XIII may have been prompted
precisely by the thought that it is the better policy to leave to the
political departments of the Government the regulation or absolute
prohibition of all land ownership by foreigners, as the changed,
changing and ever-changing conditions demand. The Commonwealth
Legislature did that with respect to lands that were originally public
lands, through Commonwealth Act No. 141, and the Legislative
Assembly during the Japanese occupation extended the prohibition to
all private lands, as Mr. Justice Paras has pointed out. In the present
Congress, at least two bills have been introduced proposing
Congressional legislation in the same direction. All of which is an
infallible sign that the Constitution does not carry such prohibition, in
the opinion of three legislatures, an opinion which, we entirely agree
with the majority, should be given serious consideration by the courts
(if needed there were any doubt), both as a matter of policy, and also
because it may be presumed to represent the true intent of the
instrument. (12 C.J., 714.) In truth, the decision lays special emphasis
on the fact that "many members of the National Assembly who
approved the new Act (No. 141) had been members of the
Constitutional Convention." May I add that Senator Francisco, who is
the author of one of the bills I have referred to, in the Senate, was a
leading, active and influential member of the Constitutional
Convention?

Footnotes
1

En vista de la circular num. 128 del Departamento de

Justicia fechada el 12 de Agosto, 1947, la cual enmienda la
circular num. 14 en el sentido de autorizar el registro de la
venta de terrenos urbanos a extranjeros, y en vista del
hecho de que el Procurador General se ha unido a la
mocion para la retirada de la apelacion, ya no existe
ninguna controversia entre las partes y la cuestion es ahora
academica. Por esta razon, la Corte ya no tiene jurisdiccion
sobre el caso (Traduccion; las cursivas son nuestras).
2

Vease regla 64, seccion 3, incisos c y d, Reglamento de los

Tribunales.
3

Vease el asunto de Vera contra Avelino (77 Phil.,

192); vease tambien el asunto de Mabanag contraLopez
Vito (78 Phil., 1).
4

El Congreso puede determinar por ley la extencion del

terreno privado agricola que los individuos, corporaciones, o
asociaciones pueden adquirir y poseer, sujeto alos derechos
existentes antes de la promulgacion de dicha ley.
5

Vease los siguientes asuntos: Mapa contra Gobierno

Insular, 10 Jur. Fil., 178; Montano contra Gobierno Insular,
12 Jur. Fil., 592; Santiago contra Gobierno Insular, 12 Jur.
Fil., 615; Ibaez de Aldecoa contraGobierno Insular, 13 Jur.
Fil., 163; Ramos contra Director de Terrenos, 39 Jur. Fil.,
184; y Jocson contraDirector de Montes, 39 Jur. Fil., 569;
Ankron contra Gobierno de Filipinas, 40 Jur. Fil., 10.
6

Osorio y Gallardo.

Cf. Buchanan vs. Worley, 245 U.S. 60, 38 S. Ct. 16.

G.R. No. 108998 August 24, 1994

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
THE COURT OF APPEALS AND SPOUSES MARIO B. LAPIA AND
FLOR DE VEGA, respondents.
Byron V. Belarmino and Juan B. Belarmino for private respondents.

BIDIN, J.:
Can a foreign national apply for registration of title over a parcel of land
which he acquired by purchase while still a citizen of the Philippines,
from a vendor who has complied with the requirements for registration
under the Public Land Act (CA 141)?
The Republic would have us rule on the negative and asks this Court
to nullify the decision of the appellate court which affirmed the
judgment of the court a quo in granting the application of respondent
spouses for registration over the lots in question.
On June 17, 1978, respondent spouses bought Lots 347 and 348,
Cad. s38-D, as their residence with a total area of 91.77 sq. m.
situated in San Pablo City, from one Cristeta Dazo Belen (Rollo, p. 41).
At the time of the purchase, respondent spouses where then naturalborn Filipino citizens.
On February 5, 1987, the spouses filed an application for registration
of title of the two (2) parcels of land before the Regional Trial Court of
San Pablo City, Branch XXXI. This time, however, they were no longer
Filipino citizens and have opted to embrace Canadian citizenship
through naturalization.
An opposition was filed by the Republic and after the parties have
presented their respective evidence, the court a quo rendered a
decision confirming private respondents' title to the lots in question, the
dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, this Court
hereby approves the said application and confirms
the title and possession of herein applicants over
Lots 347 and 348, Ap-04-003755 in the names of
spouses Mario B. Lapia and Flor de Vega, all of
legal age, Filipino citizens by birth but now
Canadian citizens by naturalization and residing at
14 A. Mabini Street, San Pablo City and/or 2011170-124 Street, Edmonton, Alberta T5M-OK9,
Canada.
Once this Decision becomes final, let the
corresponding decree of registration be issued. In
the certificate of title to be issued, there shall be
annotated an easement of .265 meters road rightof-way.
SO ORDERED. (Rollo, p. 25)
On appeal, respondent court affirmed the decision of the trial court
based on the following ratiocination:
In the present case, it is undisputed that both
applicants were still Filipino citizens when they
bought the land in controversy from its former
owner. For this reason, the prohibition against the
acquisition of private lands by aliens could not
apply. In justice and equity, they are the rightful
owners of the subject realty considering also that
they had paid for it quite a large sum of money.
Their purpose in initiating the instant action is
merely to confirm their title over the land, for, as
has been passed upon, they had been the owners
of the same since 1978. It ought to be pointed out
that registration is not a mode of acquiring
ownership. The Torrens System was not
established as a means for the acquisition of title
to private land. It is intended merely to confirm and
register the title which one may already have
(Municipality of Victorias vs. Court of Appeals,
G.R. No. L-31189, March 31, 1987). With
particular reference to the main issue at bar, the
High Court has ruled that title and ownership over
lands within the meaning and for the purposes of
the constitutional prohibition dates back to the time
of their purchase, not later. The fact that the
applicants-appellees are not Filipino citizens now
cannot be taken against them for they were not
disqualified from acquiring the land in question
(Bollozos vs. Yu Tieng Su, G.R. No. L-29442,
November 11, 1987). (Rollo, pp. 27-28)
Expectedly, respondent court's disposition did not merit petitioner's
approval, hence this present recourse, which was belatedly filed.
Ordinarily, this petition would have been denied outright for having
been filed out of time had it not been for the constitutional issue
presented therein.

At the outset, petitioner submits that private respondents have not

acquired proprietary rights over the subject properties before they
acquired Canadian citizenship through naturalization to justify the
registration thereof in their favor. It maintains that even privately owned
unregistered lands are presumed to be public lands under the principle
that lands of whatever classification belong to the State under the
Regalian doctrine. Thus, before the issuance of the certificate of title,
the occupant is not in the jurisdical sense the true owner of the land
since it still pertains to the State. Petitioner further argued that it is only
when the court adjudicates the land to the applicant for confirmation of
title would the land become privately owned land, for in the same
proceeding, the court may declare it public land, depending on the
evidence.
As found by the trial court:
The evidence thus presented established that
applicants, by themselves and their predecessorsin-interest, had been in open, public, peaceful,
continuous, exclusive and notorious possession
and occupation of the two adjacent parcels of land
applied for registration of title under a bona-fide
claim of ownership long before June 12, 1945.
Such being the case, it is conclusively presumed
that all the conditions essential to the confirmation
of their title over the two adjacent parcels of land
are sought to be registered have been complied
with thereby entitling them to the issuance of the
corresponding certificate of title pursuant to the
provisions of Presidential Decree No. 1529,
otherwise known as the Property Registration
Decree. (Rollo, p. 26)
Respondent court echoed the court a quo's observation, thus:
The land sought to be registered has been
declared to be within the alienable and disposable
zone established by the Bureau of Forest
Development (Exhibit "P"). The investigation
conducted by the Bureau of Lands, Natural
Resources District (IV-2) reveals that the disputed
realty had been occupied by the applicants "whose
house of strong materials stands thereon"; that it
had been declared for taxation purposes in the
name of applicants-spouses since 1979; that they
acquired the same by means of a public
instrument entitled "Kasulatan ng Bilihang
Tuluyan" duly executed by the vendor, Cristeta
Dazo Belen, on June 17, 1978 (Exhibits "I" and
"J"); and that applicants and their predecessors in
interest had been in possession of the land for
more than 30 years prior to the filing of the
application for registration. But what is of great
significance in the instant case is the circumstance
that at the time the applicants purchased the
subject lot in 1978, both of them were Filipino
citizens such that when they filed their application
for registration in 1987, ownership over the land in
dispute had already passed to them. (Rollo, p., 27)
The Republic disagrees with the appellate court's concept of
possession and argues:
17. The Court of Appeals found that the land was
declared for taxation purposes in the name of
respondent spouses only since 1979. However,
tax declarations or reality tax payments of property
are not conclusive evidence of ownership. (citing
cases)
18. Then again, the appellate court found that
"applicants (respondents) and their predecessorsin-interest had been in possession of the land for
more than 30 years prior to the filing of the
application for registration." This is not, however,
the same as saying that respondents have been in
possession "since June 12, 1945." (PD No. 1073,
amending Sec. 48 [b], CA NO. 141; sec. also Sec.
14, PD No. 1529). So there is a void in
respondents' possession. They fall short of the
required possession since June 12, 1945 or prior
thereto. And, even if they needed only to prove
thirty (30) years possession prior to the filing of
their application (on February 5, 1987), they would
still be short of the required possession if the
starting point is 1979 when, according to the Court
of Appeals, the land was declared for taxation
purposes in their name. (Rollo, pp. 14-15)

The argument is myopic, to say the least. Following the logic of

petitioner, any transferee is thus foreclosed to apply for registration of
title over a parcel of land notwithstanding the fact that the transferor, or
his predecessor-in-interest has been in open, notorious and exclusive
possession thereof for thirty (30) years or more. This is not, however,
what the law provides.

of judicial or other sanction, ceases to be public

land and becomes private property. . . .
Herico in particular, appears to be squarely
affirmative:
. . . Secondly, under the
provisions of Republic Act
No. 1942, which the
respondent Court held to be
inapplicable to the petitioner's
case, with the latter's proven
occupation and cultivation for
more than 30 years since
1914, by himself and by his
predecessors-in-interest, title
over the land has vested on
petitioner so as to segregate
the land from the mass of
public land. Thereafter, it is no
longer disposable under the
Public Land Act as by free
patent . . .

As petitioner itself argues, Section 48 of the Public Land Act (CA 141)
reads:
Sec. 48. The following-described citizens of the
Philippines, occupying lands of the public domain
or claiming interest therein, but whose titles have
not been perfected or completed, may apply to the
Court of First Instance (now Regional Trial Court)
of the province where the land is located for
confirmation of their claims and the issuance of a
certificate of title therefor under the Land
Registration Act, to wit:
xxx xxx xxx
(b) Those who by themselves or through their
predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession
and occupation of agricultural lands of the public
domain, under a bona fide claim of acquisition or
ownership, for at least thirty years immediately
preceding the filing of the application for
confirmation of title except when prevented by
wars or force majeure. These shall be conclusively
presumed to have performed all the conditions
essential to a Government grant and shall be
entitled to a certificate of title under the provisions
of this chapter. (Emphasis supplied)
As amended by PD 1073:
Sec. 4. The provisions of Section 48(b) and
Section 48(c), Chapter VIII, of the Public Land Act
are hereby amended in the sense that these
provisions shall apply only to alienable and
disposable lands of the public domain which have
been in open, continuous, exclusive and notorious
possession and occupation by the applicant
himself or thru his predecessor-in-interest, under
a bona fide claim of acquisition or ownership,
since June 12, 1945.
It must be noted that with respect to possession and occupation of the
alienable and disposable lands of the public domain, the law employs
the terms "by themselves", "the applicant himself or through his
predecessor-in-interest". Thus, it matters not whether the
vendee/applicant has been in possession of the subject property for
only a day so long as the period and/or legal requirements for
confirmation of title has been complied with by his predecessor-ininterest, the said period is tacked to his possession. In the case at bar,
respondents' predecessors-in-interest have been in open, continuous,
exclusive and notorious possession of the disputed land not only since
June 12, 1945, but even as early as 1937. Petitioner does not deny
this except that respondent spouses, in its perception, were in
possession of the land sought to be registered only in 1978 and
therefore short of the required length of time. As aforesaid, the
disputed parcels of land were acquired by private respondents through
their predecessors-in-interest, who, in turn, have been in open and
continued possession thereof since 1937. Private respondents stepped
into the shoes of their predecessors-in-interest and by virtue thereof,
acquired all the legal rights necessary to confirm what could otherwise
be deemed as an imperfect title.
At this juncture, petitioner's reliance in Republic v. Villanueva (114
SCRA 875 [1982]) deserves scant consideration. There, it was held
that before the issuance of the certificate of title, the occupant is not in
the juridical sense the true owner of the land since it still pertains to the
State.
Suffice it to state that the ruling in Republic v. Villanueva (supra), has
already been abandoned in the 1986 case of Director of Lands v.
Intermediate Appellate Court (146 SCRA 509; and reiterated in Director
of Lands v. Iglesia ni Cristo, 200 SCRA 606 [1991]) where the Court,
through then Associate Justice, now Chief Justice Narvasa, declared
that:
(The weight of authority is) that open, exclusive
and undisputed possession of alienable public
land for the period prescribed by law creates the
legal fiction whereby the land, upon completion of
the requisite period ipso jure and without the need

xxx xxx xxx

As interpreted in several
cases, when the conditions as
specified in the foregoing
provision are complied with,
the possessor is deemed to
have acquired, by operation
of law, a right to a grant, a
government grant, without the
necessity of a certificate of
title being issued. The land,
therefore, ceases to be of the
public domain and beyond the
authority of the Director of
Lands to dispose of. The
application for confirmation is
mere formality, the lack of
which does not affect the
legal sufficiency of the title as
would be evidenced by the
patent and the Torrens title to
be issued upon the strength
of said patent.
Nothing can more clearly demonstrate the logical
inevitability of considering possession of public
land which is of the character and duration
prescribed by the statute as the equivalent of an
express grant from the State than the dictum of
the statute itself (Section 48 [b]) that the
possessor(s) ". . . shall be conclusively presumed
to have performed all the conditions essential to a
Government grant and shall be entitled to a
certificate of title ..." No proof being admissible to
overcome a conclusive presumption, confirmation
proceedings would, in truth be little more than a
formality, at the most limited to ascertaining
whether the possession claims is of the required
character and length of time; and registration
thereunder would not confer title, but simply
recognize a title already vested. The proceedings
would not originally convert the land from public to
private land, but only confirm such a conversion
already affected by operation of law from the
moment the required period of possession
became complete. As was so well put in Cario,
". . .(There are indications that registration was
expected from all, but none sufficient to show that,
for want of it, ownership actually gained would be
lost. The effect of the proof, wherever made, was
not to confer title, but simply to establish it, as
already conferred by the decree, if not by earlier
law. (Emphasis supplied)
Subsequent cases have hewed to the above pronouncement such that
open, continuous and exclusive possession for at least 30 years of
alienable public land ipso jure converts the same to private property
(Director of Lands v. IAC, 214 SCRA 604 [1992]; Pineda v. CA, 183
SCRA 602 [1990]). This means that occupation and cultivation for
more than 30 years by an applicant and his predecessors-in-interest,
vest title on such applicant so as to segregate the land from the mass
of public and (National Power Corporation v. CA, 218 SCRA 41
[1993]).

The Public Land Act requires that the applicant must prove that (a) the
land is alienable public land and (b) his possession, in the concept
above stated, must be either since time immemorial or for the period
prescribed in the Public Land Act (Director of Lands v. Buyco, 216
SCRA 78 [1992]). When the conditions set by law are complied with,
the possessor of the land, by operation of law, acquires a right to a
grant, a government grant, without the necessity of a certificate of title
being issued (National Power Corporation v. CA, supra). As such, the
land ceases to be a part of the public domain and goes beyond the
authority of the Director of Lands to dispose of.
In other words, the Torrens system was not established as a means for
the acquisition of title to private land (Municipality of Victorias v. CA,
149 SCRA 32 [1987]). It merely confirms, but does not confer
ownership. As could be gleaned from the evidence adduced, private
respondents were able to establish the nature of possession of their
predecessors-in-interest. Evidence was offered to prove that their
predecessors-in-interest had paid taxes on the subject land and
introduced improvements thereon (Exhibits "F" to "F9"). A certified true
copy of the affidavit executed by Cristeta Dazo and her sister Simplicia
was also formally offered to prove that the subject parcels of land were
inherited by vendor Cristeta Dazo from her father Pedro Dazo with the
conformity of her only sister Simplicia (Exhibit "G"). Likewise, a report
from the Bureau of Lands was presented in evidence together with a
letter from the Bureau of Forest Development, to prove that the
questioned lots were part of the alienable and disposable zone of the
government and that no forestry interest was affected (CA GR No.
28953, Records, p. 33).
In the main, petitioner seeks to defeat respondents' application for
registration of title on the ground of foreign nationality. Accordingly, the
ruling in Director of Lands v. Buyco (supra) supports petitioner's thesis.
We disagree.
In Buyco, the applicants therein were likewise foreign nationals but
were natural-born Filipino citizens at the time of their supposed
acquisition of the property. But this is where the similarity ends. The
applicants in Buyco sought to register a large tract of land under the
provisions of the Land Registration Act, and in the alternative, under
the provisions of the Public Land Act. The land registration court
decided in favor of the applicants and was affirmed by the appellate
court on appeal. The Director of Lands brought the matter before us on
review and we reversed.
This Court, speaking through Justice Davide, Jr.,
stated:
As could be gleaned from the evidence adduced,
the private respondents do not rely on fee simple
ownership based on a Spanish grant or
possessory information title under Section 19 of
the Land Registration Act; the private respondents
did not present any proof that they or their
predecessors-in-interest derived title from an old
Spanish grant such as (a) the "titulo real" or royal
grant (b) the "concession especial" or especial
grant; (c) the "composicion con el estado" title or
adjustment title; (d) the "titulo de compra" or title
by purchase; and (e) the "informacion posesoria"
or possessory information title, which could
become a "titulo gratuito" or a gratuitous title
(Director of Forestry v. Muoz, 23 SCRA 1183
[1968]). The primary basis of their claim is
possession, by themselves and their
predecessors-in-interest, since time immemorial.
If indeed private respondents and their
predecessors have been in possession since time
immemorial, the rulings of both courts could be
upheld for, as this Court stated in Oh Cho v.
Director of Lands (75 Phil. 890 [1946]):
. . . All lands that were not
acquired from the
Government, either by
purchase or by grant, belong
to the public domain. An
exception to the rule would be
any land that should have
been in the possession of an
occupant and of his
predecessors in interest since
time immemorial, for such
possession would justify the
presumption that the land had
never been part of the public
domain or that if had been a
private property even before

the Spanish conquest (Cario

v. Insular Government, 41 Phil
935 [1909]; 212 U.S. 449; 53
Law. Ed., 594) The applicant
does not come under the
exception, for the earliest
possession of the lot by his
first predecessor in interest
began in 1880.
. . . alienable public land held
by a possessor, personally or
through his predecessors-ininterest, openly, continuously
and exclusively for the
prescribed statutory period
(30 years under the Public
Land Act, as amended) is
converted to private property
by the mere lapse or
completion of said
period, ipso jure. (Director of
Lands v. Intermediate
Appellate Court, supra)
It is obvious from the foregoing rule that the
applicant must prove that (a) the land is alienable
public land and (b) his possession, in the concept
above stated, must be either since time
immemorial, as ruled in both Cario and Susi, or
for the period prescribed in the Public Land Act. As
to the latter, this Court, in Gutierrez Hermanos v.
Court of Appeals (178 SCRA 37 [1989]), adopted
the rule enunciated by the Court of Appeals, per
then Associate Justice Hugo R. Gutierrez, Jr., . . .,
that an applicant for registration under Section 48
of the Public Land Act must secure a certification
from the Government that the lands which he
claims to have possessed as owner for more than
thirty (30) years are alienable and disposable. It is
the burden of the applicant to prove its positive
averments.
In the instant case, private respondents offered no
evidence at all to prove that the property subject of
the application is an alienable and disposable
land. On the contrary, the entire property . . . was
pasture land (and therefore inalienable under the
then 1973 Constitution).
. . . (P)rivate respondents' evidence miserably
failed to establish their imperfect title to the
property in question. Their allegation of
possession since time immemorial, . . ., is patently
baseless. . . . When referring to possession,
specifically "immemorial possession," it means
possession of which no man living has seen the
beginning, and the existence of which he has
learned from his elders (Susi v. Razon, supra).
Such possession was never present in the case of
private respondents. . . .
. . ., there does not even exist a reasonable basis
for the finding that the private respondents and
their predecessors-in-interest possessed the land
for more than eighty (80) years, . . .
xxx xxx xxx
To this Court's mind, private respondents failed to
prove that (their predecessor-in-interest) had
possessed the property allegedly covered by Tax
Declaration No. 15853 and made the subject of
both his last will and testament and the project of
partition of his estate among his heirs in such
manner as to remove the same from the public
domain under the Cario and Susi doctrines.
Thus, (when the predecessor-in-interest) died on
31 May 1937, he transmitted no right whatsoever,
with respect to the said property, to his heirs. This
being the case, his possession cannot be tacked
to that of the private respondents for the latter's
benefit pursuant to Section 48(b) of the Public
Land Act, the alternative ground relied upon in
their application . . .
xxx xxx xxx

Considering that the private respondents became

American citizens before such filing, it goes
without saying that they had acquired no vested
right, consisting of an imperfect title, over the
property before they lost their Philippine
citizenship. (Emphasis supplied)
Clearly, the application in Buyco were denied registration of title not
merely because they were American citizens at the time of their
application therefor. Respondents therein failed to prove possession of
their predecessor-in-interest since time immemorial or possession in
such a manner that the property has been segregated from public
domain; such that at the time of their application, as American citizens,
they have acquired no vested rights over the parcel of land.
In the case at bar, private respondents were undoubtedly natural-born
Filipino citizens at the time of the acquisition of the properties and by
virtue thereof, acquired vested rights thereon, tacking in the process,
the possession in the concept of owner and the prescribed period of
time held by their predecessors-in-interest under the Public Land Act.
In addition, private respondents have constructed a house of strong
materials on the contested property, now occupied by respondent
Lapias mother.

respondents' predecessors-in-interest have been in open, continuous

and exclusive possession and occupation thereof under claim of
ownership prior to June 12, 1945 or since 1937. The law provides that
a natural-born citizen of the Philippines who has lost his Philippine
citizenship may be a transferee of a private land up to a maximum area
of 1,000 sq.m., if urban, or one (1) hectare in case of rural land, to be
used by him as his residence (BP 185).
It is undisputed that private respondents, as vendees of a private land,
were natural-born citizens of the Philippines. For the purpose of
transfer and/or acquisition of a parcel of residential land, it is not
significant whether private respondents are no longer Filipino citizens
at the time they purchased or registered the parcels of land in
question. What is important is that private respondents were formerly
natural-born citizens of the Philippines, and as transferees of a private
land, they could apply for registration in accordance with the mandate
of Section 8, Article XII of the Constitution. Considering that private
respondents were able to prove the requisite period and character of
possession of their predecessors-in-interest over the subject lots, their
application for registration of title must perforce be approved.
The dissenting opinion, however, states that the requirements in BP
185, must also be complied with by private respondents. Specifically, it
refers to Section 6, which provides:

But what should not be missed in the disposition of this case is the fact
that the Constitution itself allows private respondents to register the
contested parcels of land in their favor. Sections 7 and 8 of Article XII
of the Constitution contain the following pertinent provisions, to wit:

Sec. 6. In addition to the requirements provided for

in other laws for the registration of titles to lands,
no private land shall be transferred under this Act,
unless the transferee shall submit to the register of
deeds of the province or city where the property is
located a sworn statement showing the date and
place of his birth; the names and addresses of his
parents, of his spouse and children, if any; the
area, the location and the mode of acquisition of
his landholdings in the Philippines, if any; his
intention to reside permanently in the Philippines;
the date he lost his Philippine citizenship and the
country of which he is presently a citizen; and
such other information as may be required under
Section 8 of this Act.

Sec. 7. Save in cases of hereditary succession, no

private lands shall be transferred or conveyed
except to individuals, corporations, or associations
qualified to acquire or hold lands of the public
domain.
Sec. 8. Notwithstanding the provisions of Section
7 of this Article, a natural-born citizen of the
Philippines who has lost his Philippine citizenship
may be a transferee of private lands, subject to
limitations provided by law. (Emphasis supplied)
Section 8, Article XII of the 1987 Constitution above quoted is similar to
Section 15, Article XIV of the then 1973 Constitution which reads:
Sec. 15. Notwithstanding the provisions of Section
14 of this Article, a natural-born citizen of the
Philippines who has lost his citizenship may be a
transferee of private land, for use by him as his
residence, as the Batasang Pambansa may
provide.
Pursuant thereto, Batas Pambansa Blg. 185 was passed into law, the
relevant provision of which provides:
Sec. 2. Any natural-born citizen of the Philippines
who has lost his Philippine citizenship and who
has the legal capacity to enter into a contract
under Philippine laws may be a transferee of a
private land up to a maximum area of one
thousand square meters, in the case of urban
land, or one hectare in the case of rural land, to be
used by him as his residence. In the case of
married couples, one of them may avail of the
privilege herein granted; Provided, That if both
shall avail of the same, the total area acquired
shall not exceed the maximum herein fixed.

The Court is of the view that the requirements in Sec. 6 of BP 185 do

not apply in the instant case since said requirements are primarily
directed to the register of deeds before whom compliance therewith is
to be submitted. Nowhere in the provision is it stated, much less
implied, that the requirements must likewise be submitted before the
land registration court prior to the approval of an application for
registration of title. An application for registration of title before a land
registration court should not be confused with the issuance of a
certificate of title by the register of deeds. It is only when the judgment
of the land registration court approving the application for registration
has become final that a decree of registration is issued. And that is the
time when the requirements of Sec. 6, BP 185, before the register of
deeds should be complied with by the applicants. This decree of
registration is the one that is submitted to the office of the register of
deeds for issuance of the certificate of title in favor of the applicant.
Prior to the issuance of the decree of registration, the register of deeds
has no participation in the approval of the application for registration of
title as the decree of registration is yet to be issued.
WHEREFORE, the petition is DISMISSED and the decision appealed
from is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Regalado, Davide,
Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug,
Kapunan, and Mendoza, JJ.,concur.

In case the transferee already owns urban or rural

lands for residential purposes, he shall still be
entitled to be a transferee of an additional urban or
rural lands for residential purposes which, when
added to those already owned by him, shall not
exceed the maximum areas herein authorized.
From the adoption of the 1987 Constitution up to the present, no other
law has been passed by the legislature on the same subject. Thus,
what governs the disposition of private lands in favor of a natural-born
Filipino citizen who has lost his Philippine citizenship remains to be BP
185.
Even if private respondents were already Canadian citizens at the time
they applied for registration of the properties in question, said
properties as discussed above were already private lands;
consequently, there could be no legal impediment for the registration
thereof by respondents in view of what the Constitution ordains. The
parcels of land sought to be registered no longer form part of the public
domain. They are already private in character since private

Separate Opinions

CRUZ, J., dissenting:

With all due respect, I have to dissent.
The ponencia begins by posing the issue thus:

Can a foreign national apply for registration of title

over a parcel of land which he acquired by
purchase while still a citizen of the Philippines,
from a vendor who has complied with the
requirements for registration under the Public
Land Act (CA 141)?
There is no question that the property is private land and thus subject
to registration by qualified persons. It was really needless to elaborate
on Buyco, which is clearly inapplicable here. We can agree that the
ruling case is Director of Lands v. Intermediate Appellate Court, which
is not challenged in this petition.
But I think the ponencia misses the point. The finding that the
respondent spouses were natural-born Filpinos at the time they
acquired the land does not settle the question posed.

B.P. Blg. 185 would, of course, apply to subsequent purchases of land

by the respondent spouses, that is, purchases made after they were
naturalized as Canadian nationals.

# Separate Opinions

CRUZ, J., dissenting:

With all due respect, I have to dissent.

The ponencia begins by posing the issue thus:
Can a foreign national apply for registration of title
over a parcel of land which he acquired by
purchase while still a citizen of the Philippines,
from a vendor who has complied with the
requirements for registration under the Public
Land Act (CA 141)?

The important point is that the respondent spouses are no longer

citizens of the Philippines but naturalized Canadians. It does not follow
that because they were citizens of the Philippines when they acquired
the land, they can register it in their names now even if they are no
longer Filipinos.
Section 7 of Article XII of the Constitution is irrelevant because it is not
disputed that the respondent spouses were qualified to acquire the
land in question when it was transferred to them.
Section 8 of the same article is not applicable either because it speaks
of a transfer of private land to a former natural-born citizen of the
Philippines after he became a foreigner.
Thus it states:
Sec. 8. Notwithstanding the provisions of Section
7 of this Article, a natural-born citizen of the
Philippines who has lost his Philippine citizenship
may be a transferee of private lands, subject to
limitations provided by law.
Even if it be assumed that the provision is applicable, it does not
appear that the private respondents have observed "the limitations
provided by law."
The ponencia finds that all the requisites for the registration of the land
in the private respondents' name have been complied with. I do not
believe so for there is no showing that B.P. 185 has also been
enforced.
The view has been expressed that we should confine ourselves to the
requirements for registration under the Public Land Act. I respectfully
submit that the requirements in B.P. 185 have been read into the Act
and should also be applied.
Strict compliance is necessary because of the special privilege granted
to former Filipinos who have become foreigners by their own choice. If
we can be so strict with our own citizens, I see no reason why we
should be less so with those who have renounced our country.
Feliciano, J.: concurring
I agree with the great bulk of the majority opinion written by Mr. Justice
Bidin and the result reached therein.
This separate statement is concerned only with the last two (2)
paragraphs, just before the dispositive portion, of the majority opinion.
In my view, it should be stressed that B.P. Blg. 185 which took effect on
16 March 1982, does not purport to cover the set of facts before the
Court in this case: i.e., the respondent spouses became transferees
(on 17 June 1978) of the land here involved while they were naturalborn Philippine citizens who happened sometime later to have been
naturalized as citizens of another country. B.P. Blg. 185, as far as I can
determine, addresses itself only to a situation of persons who were
already foreign nationals at the time they became transferees
of private land in the Philippines, but who were previously natural-born
Philippine citizens. It is difficult, therefore, to see how B.P. Blg. 185 can
become applicable to the present situation even at the subsequent
time when the respondent spouses would come before the Register of
Deeds. B.P. Blg. 185, especially Section 6 thereof, imposes certain
requirements, including a specific limitation on the quantity of land (not
more than 1,000 square meters) which may be acquired thereunder,
an amount limitation which must not be exceeded both by the land of
which such foreign national becomes transferee and by such land
taken together with other land previously acquired by such foreign
national. (2nd paragraph, Section 2, B.P. Blg. 185)

There is no question that the property is private land and thus subject
to registration by qualified persons. It was really needless to elaborate
on Buyco, which is clearly inapplicable here. We can agree that the
ruling case is Director of Lands v. Intermediate Appellate Court, which
is not challenged in this petition.
But I think the ponencia misses the point. The finding that the
respondent spouses were natural-born Filpinos at the time they
acquired the land does not settle the question posed.
The important point is that the respondent spouses are no longer
citizens of the Philippines but naturalized Canadians. It does not follow
that because they were citizens of the Philippines when they acquired
the land, they can register it in their names now even if they are no
longer Filipinos.
Section 7 of Article XII of the Constitution is irrelevant because it is not
disputed that the respondent spouses were qualified to acquire the
land in question when it was transferred to them.
Section 8 of the same article is not applicable either because it speaks
of a transfer of private land to a former natural-born citizen of the
Philippines after he became a foreigner.
Thus it states:
Sec. 8. Notwithstanding the provisions of Section
7 of this Article, a natural-born citizen of the
Philippines who has lost his Philippine citizenship
may be a transferee of private lands, subject to
limitations provided by law.
Even if it be assumed that the provision is applicable, it does not
appear that the private respondents have observed "the limitations
provided by law."
The ponencia finds that all the requisites for the registration of the land
in the private respondents' name have been complied with. I do not
believe so for there is no showing that B.P. 185 has also been
enforced.
The view has been expressed that we should confine ourselves to the
requirements for registration under the Public Land Act. I respectfully
submit that the requirements in B.P. 185 have been read into the Act
and should also be applied.
Strict compliance is necessary because of the special privilege granted
to former Filipinos who have become foreigners by their own choice. If
we can be so strict with our own citizens, I see no reason why we
should be less so with those who have renounced our country.
Feliciano, J.: concurring
I agree with the great bulk of the majority opinion written by Mr. Justice
Bidin and the result reached therein.
This separate statement is concerned only with the last two (2)
paragraphs, just before the dispositive portion, of the majority opinion.
In my view, it should be stressed that B.P. Blg. 185 which took effect on
16 March 1982, does not purport to cover the set of facts before the
Court in this case: i.e., the respondent spouses became transferees
(on 17 June 1978) of the land here involved while they were natural-

born Philippine citizens who happened sometime later to have been

naturalized as citizens of another country. B.P. Blg. 185, as far as I can
determine, addresses itself only to a situation of persons who were
already foreign nationals at the time they became transferees
of private land in the Philippines, but who were previously natural-born
Philippine citizens. It is difficult, therefore, to see how B.P. Blg. 185 can
become applicable to the present situation even at the subsequent
time when the respondent spouses would come before the Register of
Deeds. B.P. Blg. 185, especially Section 6 thereof, imposes certain
requirements, including a specific limitation on the quantity of land (not
more than 1,000 square meters) which may be acquired thereunder,
an amount limitation which must not be exceeded both by the land of
which such foreign national becomes transferee and by such land
taken together with other land previously acquired by such foreign
national. (2nd paragraph, Section 2, B.P. Blg. 185)
B.P. Blg. 185 would, of course, apply to subsequent purchases of land
by the respondent spouses, that is, purchases made after they were
naturalized as Canadian nationals.
G.R. No. L-17587

September 12, 1967

PHILIPPINE BANKING CORPORATION, representing the estate of

JUSTINA SANTOS Y CANON FAUSTINO, deceased, plaintiffappellant,
vs.
LUI SHE in her own behalf and as administratrix of the intestate
estate of Wong Heng, deceased,defendant-appellant.
Nicanor S. Sison for plaintiff-appellant.
Ozaeta, Gibbs & Ozaeta for defendant-appellant.

CASTRO, J.:
Justina Santos y Canon Faustino and her sister Lorenzo were the
owners in common of a piece of land in Manila. This parcel, with an
area of 2,582.30 square meters, is located on Rizal Avenue and opens
into Florentino Torres street at the back and Katubusan street on one
side. In it are two residential houses with entrance on Florentino Torres
street and the Hen Wah Restaurant with entrance on Rizal Avenue.
The sisters lived in one of the houses, while Wong Heng, a Chinese,
lived with his family in the restaurant. Wong had been a long-time
lessee of a portion of the property, paying a monthly rental of P2,620.
On September 22, 1957 Justina Santos became the owner of the
entire property as her sister died with no other heir. Then already well
advanced in years, being at the time 90 years old, blind, crippled and
an invalid, she was left with no other relative to live with. Her only
companions in the house were her 17 dogs and 8 maids. Her
otherwise dreary existence was brightened now and then by the visits
of Wong's four children who had become the joy of her life. Wong
himself was the trusted man to whom she delivered various amounts
for safekeeping, including rentals from her property at the corner of
Ongpin and Salazar streets and the rentals which Wong himself paid
as lessee of a part of the Rizal Avenue property. Wong also took care
of the payment; in her behalf, of taxes, lawyers' fees, funeral expenses,
masses, salaries of maids and security guard, and her household
expenses.
"In grateful acknowledgment of the personal services of the lessee to
her," Justina Santos executed on November 15, 1957 a contract of
lease (Plff Exh. 3) in favor of Wong, covering the portion then already
leased to him and another portion fronting Florentino Torres street. The
lease was for 50 years, although the lessee was given the right to
withdraw at any time from the agreement; the monthly rental was
P3,120. The contract covered an area of 1,124 square meters. Ten
days later (November 25), the contract was amended (Plff Exh. 4) so
as to make it cover the entire property, including the portion on which
the house of Justina Santos stood, at an additional monthly rental of
P360. For his part Wong undertook to pay, out of the rental due from
him, an amount not exceeding P1,000 a month for the food of her dogs
and the salaries of her maids.
On December 21 she executed another contract (Plff Exh. 7) giving
Wong the option to buy the leased premises for P120,000, payable
within ten years at a monthly installment of P1,000. The option, written
in Tagalog, imposed on him the obligation to pay for the food of the
dogs and the salaries of the maids in her household, the charge not to
exceed P1,800 a month. The option was conditioned on his obtaining
Philippine citizenship, a petition for which was then pending in the
Court of First Instance of Rizal. It appears, however, that this
application for naturalization was withdrawn when it was discovered
that he was not a resident of Rizal. On October 28, 1958 she filed a
petition to adopt him and his children on the erroneous belief that
adoption would confer on them Philippine citizenship. The error was
discovered and the proceedings were abandoned.

On November 18, 1958 she executed two other contracts, one (Plff
Exh. 5) extending the term of the lease to 99 years, and another (Plff
Exh. 6) fixing the term of the option of 50 years. Both contracts are
written in Tagalog.
In two wills executed on August 24 and 29, 1959 (Def Exhs. 285 &
279), she bade her legatees to respect the contracts she had entered
into with Wong, but in a codicil (Plff Exh. 17) of a later date (November
4, 1959) she appears to have a change of heart. Claiming that the
various contracts were made by her because of machinations and
inducements practiced by him, she now directed her executor to
secure the annulment of the contracts.
On November 18 the present action was filed in the Court of First
Instance of Manila. The complaint alleged that the contracts were
obtained by Wong "through fraud, misrepresentation, inequitable
conduct, undue influence and abuse of confidence and trust of and
(by) taking advantage of the helplessness of the plaintiff and were
made to circumvent the constitutional provision prohibiting aliens from
acquiring lands in the Philippines and also of the Philippine
Naturalization Laws." The court was asked to direct the Register of
Deeds of Manila to cancel the registration of the contracts and to order
Wong to pay Justina Santos the additional rent of P3,120 a month from
November 15, 1957 on the allegation that the reasonable rental of the
leased premises was P6,240 a month.
In his answer, Wong admitted that he enjoyed her trust and confidence
as proof of which he volunteered the information that, in addition to the
sum of P3,000 which he said she had delivered to him for safekeeping,
another sum of P22,000 had been deposited in a joint account which
he had with one of her maids. But he denied having taken advantage
of her trust in order to secure the execution of the contracts in
question. As counterclaim he sought the recovery of P9,210.49 which
he said she owed him for advances.
Wong's admission of the receipt of P22,000 and P3,000 was the cue
for the filing of an amended complaint. Thus on June 9, 1960, aside
from the nullity of the contracts, the collection of various amounts
allegedly delivered on different occasions was sought. These amounts
and the dates of their delivery are P33,724.27 (Nov. 4, 1957);
P7,344.42 (Dec. 1, 1957); P10,000 (Dec. 6, 1957); P22,000 and
P3,000 (as admitted in his answer). An accounting of the rentals from
the Ongpin and Rizal Avenue properties was also demanded.
In the meantime as a result of a petition for guardianship filed in the
Juvenile and Domestic Relations Court, the Security Bank & Trust Co.
was appointed guardian of the properties of Justina Santos, while
Ephraim G. Gochangco was appointed guardian of her person.
In his answer, Wong insisted that the various contracts were freely and
voluntarily entered into by the parties. He likewise disclaimed
knowledge of the sum of P33,724.27, admitted receipt of P7,344.42
and P10,000, but contended that these amounts had been spent in
accordance with the instructions of Justina Santos; he expressed
readiness to comply with any order that the court might make with
respect to the sums of P22,000 in the bank and P3,000 in his
possession.
The case was heard, after which the lower court rendered judgment as
follows:
[A]ll the documents mentioned in the first cause of action,
with the exception of the first which is the lease contract of
15 November 1957, are declared null and void; Wong Heng
is condemned to pay unto plaintiff thru guardian of her
property the sum of P55,554.25 with legal interest from the
date of the filing of the amended complaint; he is also
ordered to pay the sum of P3,120.00 for every month of his
occupation as lessee under the document of lease herein
sustained, from 15 November 1959, and the moneys he has
consigned since then shall be imputed to that; costs against
Wong Heng.
From this judgment both parties appealed directly to this Court. After
the case was submitted for decision, both parties died, Wong Heng on
October 21, 1962 and Justina Santos on December 28, 1964. Wong
was substituted by his wife, Lui She, the other defendant in this case,
while Justina Santos was substituted by the Philippine Banking
Corporation.
Justina Santos maintained now reiterated by the Philippine Banking
Corporation that the lease contract (Plff Exh. 3) should have been
annulled along with the four other contracts (Plff Exhs. 4-7) because it
lacks mutuality; because it included a portion which, at the time, was
in custodia legis; because the contract was obtained in violation of the
fiduciary relations of the parties; because her consent was obtained
through undue influence, fraud and misrepresentation; and because

the lease contract, like the rest of the contracts, is absolutely

simulated.

Q Did you explain carefully to your client, Doa Justina, the

contents of this document before she signed it?

Paragraph 5 of the lease contract states that "The lessee may at any
time withdraw from this agreement." It is claimed that this stipulation
offends article 1308 of the Civil Code which provides that "the contract
must bind both contracting parties; its validity or compliance cannot be
left to the will of one of them."

A I explained to her each and every one of these conditions

and I also told her these conditions were quite onerous for
her, I don't really know if I have expressed my opinion, but I
told her that we would rather not execute any contract
anymore, but to hold it as it was before, on a verbal month to
month contract of lease.

We have had occasion to delineate the scope and application of article

1308 in the early case of Taylor v. Uy Tieng Piao.1 We said in that
case:
Article 1256 [now art. 1308] of the Civil Code in our opinion
creates no impediment to the insertion in a contract for
personal service of a resolutory condition permitting the
cancellation of the contract by one of the parties. Such a
stipulation, as can be readily seen, does not make either the
validity or the fulfillment of the contract dependent upon the
will of the party to whom is conceded the privilege of
cancellation; for where the contracting parties have agreed
that such option shall exist, the exercise of the option is as
much in the fulfillment of the contract as any other act which
may have been the subject of agreement. Indeed, the
cancellation of a contract in accordance with conditions
agreed upon beforehand is fulfillment.2
And so it was held in Melencio v. Dy Tiao Lay 3 that a "provision in a
lease contract that the lessee, at any time before he erected any
building on the land, might rescind the lease, can hardly be regarded
as a violation of article 1256 [now art. 1308] of the Civil Code."
4

The case of Singson Encarnacion v. Baldomar cannot be cited in

support of the claim of want of mutuality, because of a difference in
factual setting. In that case, the lessees argued that they could occupy
the premises as long as they paid the rent. This is of course untenable,
for as this Court said, "If this defense were to be allowed, so long as
defendants elected to continue the lease by continuing the payment of
the rentals, the owner would never be able to discontinue it;
conversely, although the owner should desire the lease to continue the
lessees could effectively thwart his purpose if they should prefer to
terminate the contract by the simple expedient of stopping payment of
the rentals." Here, in contrast, the right of the lessee to continue the
lease or to terminate it is so circumscribed by the term of the contract
that it cannot be said that the continuance of the lease depends upon
his will. At any rate, even if no term had been fixed in the agreement,
this case would at most justify the fixing of a period5 but not the
annulment of the contract.
Nor is there merit in the claim that as the portion of the property
formerly owned by the sister of Justina Santos was still in the process
of settlement in the probate court at the time it was leased, the lease is
invalid as to such portion. Justina Santos became the owner of the
entire property upon the death of her sister Lorenzo on September 22,
1957 by force of article 777 of the Civil Code. Hence, when she leased
the property on November 15, she did so already as owner thereof. As
this Court explained in upholding the sale made by an heir of a
property under judicial administration:
That the land could not ordinarily be levied upon while
in custodia legis does not mean that one of the heirs may not
sell the right, interest or participation which he has or might
have in the lands under administration. The ordinary
execution of property in custodia legis is prohibited in order
to avoid interference with the possession by the court. But
the sale made by an heir of his share in an inheritance,
subject to the result of the pending administration, in no wise
stands in the way of such administration.6
It is next contended that the lease contract was obtained by Wong in
violation of his fiduciary relationship with Justina Santos, contrary to
article 1646, in relation to article 1941 of the Civil Code, which
disqualifies "agents (from leasing) the property whose administration or
sale may have been entrusted to them." But Wong was never an agent
of Justina Santos. The relationship of the parties, although admittedly
close and confidential, did not amount to an agency so as to bring the
case within the prohibition of the law.
Just the same, it is argued that Wong so completely dominated her life
and affairs that the contracts express not her will but only his. Counsel
for Justina Santos cites the testimony of Atty. Tomas S. Yumol who
said that he prepared the lease contract on the basis of data given to
him by Wong and that she told him that "whatever Mr. Wong wants
must be followed."7
The testimony of Atty. Yumol cannot be read out of context in order to
warrant a finding that Wong practically dictated the terms of the
contract. What this witness said was:

Q But, she did not follow your advice, and she went with the
contract just the same?
A She agreed first . . .
Q Agreed what?
A Agreed with my objectives that it is really onerous and that
I was really right, but after that, I was called again by her and
she told me to follow the wishes of Mr. Wong Heng.
xxx

xxx

xxx

Q So, as far as consent is concerned, you were satisfied that

this document was perfectly proper?
xxx

xxx

xxx

A Your Honor, if I have to express my personal opinion, I

would say she is not, because, as I said before, she told me
"Whatever Mr. Wong wants must be followed."8
Wong might indeed have supplied the data which Atty. Yumol
embodied in the lease contract, but to say this is not to detract from the
binding force of the contract. For the contract was fully explained to
Justina Santos by her own lawyer. One incident, related by the same
witness, makes clear that she voluntarily consented to the lease
contract. This witness said that the original term fixed for the lease was
99 years but that as he doubted the validity of a lease to an alien for
that length of time, he tried to persuade her to enter instead into a
lease on a month-to-month basis. She was, however, firm and
unyielding. Instead of heeding the advice of the lawyer, she ordered
him, "Just follow Mr. Wong Heng."9 Recounting the incident, Atty.
Yumol declared on cross examination:
Considering her age, ninety (90) years old at the time and
her condition, she is a wealthy woman, it is just natural when
she said "This is what I want and this will be done." In
particular reference to this contract of lease, when I said
"This is not proper," she said "You just go ahead, you
prepare that, I am the owner, and if there is any illegality, I
am the only one that can question the illegality."10
Atty. Yumol further testified that she signed the lease contract in the
presence of her close friend, Hermenegilda Lao, and her maid,
Natividad Luna, who was constantly by her side.11 Any of them could
have testified on the undue influence that Wong supposedly wielded
over Justina Santos, but neither of them was presented as a witness.
The truth is that even after giving his client time to think the matter
over, the lawyer could not make her change her mind. This persuaded
the lower court to uphold the validity of the lease contract against the
claim that it was procured through undue influence.
Indeed, the charge of undue influence in this case rests on a mere
inference12 drawn from the fact that Justina Santos could not read (as
she was blind) and did not understand the English language in which
the contract is written, but that inference has been overcome by her
own evidence.
Nor is there merit in the claim that her consent to the lease contract, as
well as to the rest of the contracts in question, was given out of a
mistaken sense of gratitude to Wong who, she was made to believe,
had saved her and her sister from a fire that destroyed their house
during the liberation of Manila. For while a witness claimed that the
sisters were saved by other persons (the brothers Edilberto and
Mariano Sta. Ana)13 it was Justina Santos herself who, according to her
own witness, Benjamin C. Alonzo, said "very emphatically" that she
and her sister would have perished in the fire had it not been for
Wong.14 Hence the recital in the deed of conditional option (Plff Exh. 7)
that "[I]tong si Wong Heng ang siyang nagligtas sa aming dalawang
magkapatid sa halos ay tiyak na kamatayan", and the equally emphatic
avowal of gratitude in the lease contract (Plff Exh. 3).
As it was with the lease contract (Plff Exh. 3), so it was with the rest of
the contracts (Plff Exhs. 4-7) the consent of Justina Santos was
given freely and voluntarily. As Atty. Alonzo, testifying for her, said:

[I]n nearly all documents, it was either Mr. Wong Heng or

Judge Torres and/or both. When we had conferences, they
used to tell me what the documents should contain. But, as I
said, I would always ask the old woman about them and
invariably the old woman used to tell me: "That's okay. It's all
right."15
But the lower court set aside all the contracts, with the exception of the
lease contract of November 15, 1957, on the ground that they are
contrary to the expressed wish of Justina Santos and that their
considerations are fictitious. Wong stated in his deposition that he did
not pay P360 a month for the additional premises leased to him,
because she did not want him to, but the trial court did not believe him.
Neither did it believe his statement that he paid P1,000 as
consideration for each of the contracts (namely, the option to buy the
leased premises, the extension of the lease to 99 years, and the fixing
of the term of the option at 50 years), but that the amount was returned
to him by her for safekeeping. Instead, the court relied on the
testimony of Atty. Alonzo in reaching the conclusion that the contracts
are void for want of consideration.
Atty. Alonzo declared that he saw no money paid at the time of the
execution of the documents, but his negative testimony does not rule
out the possibility that the considerations were paid at some other time
as the contracts in fact recite. What is more, the consideration need
not pass from one party to the other at the time a contract is executed
because the promise of one is the consideration for the other.16
With respect to the lower court's finding that in all probability Justina
Santos could not have intended to part with her property while she was
alive nor even to lease it in its entirety as her house was built on it,
suffice it to quote the testimony of her own witness and lawyer who
prepared the contracts (Plff Exhs. 4-7) in question, Atty. Alonzo:
The ambition of the old woman, before her death, according
to her revelation to me, was to see to it that these properties
be enjoyed, even to own them, by Wong Heng because
Doa Justina told me that she did not have any relatives,
near or far, and she considered Wong Heng as a son and his
children her grandchildren; especially her consolation in life
was when she would hear the children reciting prayers in
Tagalog.17
She was very emphatic in the care of the seventeen (17)
dogs and of the maids who helped her much, and she told
me to see to it that no one could disturb Wong Heng from
those properties. That is why we thought of the ninety-nine
(99) years lease; we thought of adoption, believing that thru
adoption Wong Heng might acquire Filipino citizenship;
being the adopted child of a Filipino citizen.18
This is not to say, however, that the contracts (Plff Exhs. 3-7) are valid.
For the testimony just quoted, while dispelling doubt as to the intention
of Justina Santos, at the same time gives the clue to what we view as
a scheme to circumvent the Constitutional prohibition against the
transfer of lands to aliens. "The illicit purpose then becomes the
illegal causa"19 rendering the contracts void.
Taken singly, the contracts show nothing that is necessarily illegal, but
considered collectively, they reveal an insidious pattern to subvert by
indirection what the Constitution directly prohibits. To be sure, a lease
to an alien for a reasonable period is valid. So is an option giving an
alien the right to buy real property on condition that he is granted
Philippine citizenship. As this Court said in Krivenko v. Register of
Deeds:20
[A]liens are not completely excluded by the Constitution from
the use of lands for residential purposes. Since their
residence in the Philippines is temporary, they may be
granted temporary rights such as a lease contract which is
not forbidden by the Constitution. Should they desire to
remain here forever and share our fortunes and misfortunes,
Filipino citizenship is not impossible to acquire.
But if an alien is given not only a lease of, but also an option to buy, a
piece of land, by virtue of which the Filipino owner cannot sell or
otherwise dispose of his property,21 this to last for 50 years, then it
becomes clear that the arrangement is a virtual transfer of ownership
whereby the owner divests himself in stages not only of the right to
enjoy the land ( jus possidendi, jus utendi, jus fruendi and jus abutendi)
but also of the right to dispose of it ( jus disponendi) rights the sum
total of which make up ownership. It is just as if today the possession
is transferred, tomorrow, the use, the next day, the disposition, and so
on, until ultimately all the rights of which ownership is made up are
consolidated in an alien. And yet this is just exactly what the parties in
this case did within the space of one year, with the result that Justina
Santos' ownership of her property was reduced to a hollow concept. If
this can be done, then the Constitutional ban against alien landholding

in the Philippines, as announced in Krivenko v. Register of Deeds,22 is

indeed in grave peril.
It does not follow from what has been said, however, that because the
parties are in pari delicto they will be left where they are, without relief.
For one thing, the original parties who were guilty of a violation of the
fundamental charter have died and have since been substituted by
their administrators to whom it would be unjust to impute their
guilt.23 For another thing, and this is not only cogent but also important,
article 1416 of the Civil Code provides, as an exception to the rule
on pari delicto, that "When the agreement is not illegal per se but is
merely prohibited, and the prohibition by law is designed for the
protection of the plaintiff, he may, if public policy is thereby enhanced,
recover what he has paid or delivered." The Constitutional provision
that "Save in cases of hereditary succession, no private agricultural
land shall be transferred or assigned except to individuals,
corporations, or associations qualified to acquire or hold lands of the
public domain in the Philippines"24 is an expression of public policy to
conserve lands for the Filipinos. As this Court said in Krivenko:
It is well to note at this juncture that in the present case we
have no choice. We are construing the Constitution as it is
and not as we may desire it to be. Perhaps the effect of our
construction is to preclude aliens admitted freely into the
Philippines from owning sites where they may build their
homes. But if this is the solemn mandate of the Constitution,
we will not attempt to compromise it even in the name of
amity or equity . . . .
For all the foregoing, we hold that under the Constitution
aliens may not acquire private or public agricultural lands,
including residential lands, and, accordingly, judgment is
affirmed, without costs.25
That policy would be defeated and its continued violation sanctioned if,
instead of setting the contracts aside and ordering the restoration of
the land to the estate of the deceased Justina Santos, this Court
should apply the general rule of pari delicto. To the extent that our
ruling in this case conflicts with that laid down in Rellosa v. Gaw Chee
Hun 26 and subsequent similar cases, the latter must be considered
as pro tanto qualified.
The claim for increased rentals and attorney's fees, made in behalf of
Justina Santos, must be denied for lack of merit.
And what of the various amounts which Wong received in trust from
her? It appears that he kept two classes of accounts, one pertaining to
amount which she entrusted to him from time to time, and another
pertaining to rentals from the Ongpin property and from the Rizal
Avenue property, which he himself was leasing.
With respect to the first account, the evidence shows that he received
P33,724.27 on November 8, 1957 (Plff Exh. 16); P7,354.42 on
December 1, 1957 (Plff Exh. 13); P10,000 on December 6, 1957 (Plff
Exh. 14) ; and P18,928.50 on August 26, 1959 (Def. Exh. 246), or a
total of P70,007.19. He claims, however, that he settled his accounts
and that the last amount of P18,928.50 was in fact payment to him of
what in the liquidation was found to be due to him.
He made disbursements from this account to discharge Justina Santos'
obligations for taxes, attorneys' fees, funeral services and security
guard services, but the checks (Def Exhs. 247-278) drawn by him for
this purpose amount to only P38,442.84.27 Besides, if he had really
settled his accounts with her on August 26, 1959, we cannot
understand why he still had P22,000 in the bank and P3,000 in his
possession, or a total of P25,000. In his answer, he offered to pay this
amount if the court so directed him. On these two grounds, therefore,
his claim of liquidation and settlement of accounts must be rejected.
After subtracting P38,442.84 (expenditures) from P70,007.19
(receipts), there is a difference of P31,564 which, added to the amount
of P25,000, leaves a balance of P56,564.3528 in favor of Justina
Santos.
As to the second account, the evidence shows that the monthly income
from the Ongpin property until its sale in Rizal Avenue July, 1959 was
P1,000, and that from the Rizal Avenue property, of which Wong was
the lessee, was P3,120. Against this account the household expenses
and disbursements for the care of the 17 dogs and the salaries of the 8
maids of Justina Santos were charged. This account is contained in a
notebook (Def. Exh. 6) which shows a balance of P9,210.49 in favor of
Wong. But it is claimed that the rental from both the Ongpin and Rizal
Avenue properties was more than enough to pay for her monthly
expenses and that, as a matter of fact, there should be a balance in
her favor. The lower court did not allow either party to recover against
the other. Said the court:

[T]he documents bear the earmarks of genuineness; the

trouble is that they were made only by Francisco Wong and
Antonia Matias, nick-named Toning, which was the way
she signed the loose sheets, and there is no clear proof that
Doa Justina had authorized these two to act for her in such
liquidation; on the contrary if the result of that was a deficit
as alleged and sought to be there shown, of P9,210.49, that
was not what Doa Justina apparently understood for as the
Court understands her statement to the Honorable Judge of
the Juvenile Court . . . the reason why she preferred to stay
in her home was because there she did not incur in any
debts . . . this being the case, . . . the Court will not
adjudicate in favor of Wong Heng on his counterclaim; on
the other hand, while it is claimed that the expenses were
much less than the rentals and there in fact should be a
superavit, . . . this Court must concede that daily expenses
are not easy to compute, for this reason, the Court faced
with the choice of the two alternatives will choose the middle
course which after all is permitted by the rules of proof, Sec.
69, Rule 123 for in the ordinary course of things, a person
will live within his income so that the conclusion of the Court
will be that there is neither deficit nor superavit and will let
the matter rest here.
Both parties on appeal reiterate their respective claims but we agree
with the lower court that both claims should be denied. Aside from the
reasons given by the court, we think that the claim of Justina Santos
totalling P37,235, as rentals due to her after deducting various
expenses, should be rejected as the evidence is none too clear about
the amounts spent by Wong for food29 masses30 and salaries of her
maids.31 His claim for P9,210.49 must likewise be rejected as his
averment of liquidation is belied by his own admission that even as late
as 1960 he still had P22,000 in the bank and P3,000 in his possession.
ACCORDINGLY, the contracts in question (Plff Exhs. 3-7) are annulled
and set aside; the land subject-matter of the contracts is ordered
returned to the estate of Justina Santos as represented by the
Philippine Banking Corporation; Wong Heng (as substituted by the
defendant-appellant Lui She) is ordered to pay the Philippine Banking
Corporation the sum of P56,564.35, with legal interest from the date of
the filing of the amended complaint; and the amounts consigned in
court by Wong Heng shall be applied to the payment of rental from
November 15, 1959 until the premises shall have been vacated by his
heirs. Costs against the defendant-appellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P.,
Zaldivar, Sanchez and Angeles, JJ., concur.

Separate Opinions

FERNANDO, J., concurring:

With the able and well-written opinion of Justice Castro, I am in full
agreement. The exposition of the facts leaves nothing to be desired
and the statement of the law is notable for its comprehensiveness and
clarity. This concurring opinion has been written solely to express what
I consider to be the unfortunate and deplorable consequences of
applying the pari delicto concept, as was, to my mind, indiscriminately
done, to alien landholding declared illegal under the Krivenko doctrine
in some past decisions.
It is to be remembered that in Krivenko v. The Register of Deeds of
Manila,1 this Court over strong dissents held
that residential and commercial lots may be considered agricultural
within the meaning of the constitutional provision prohibiting the
transfer of any private agricultural land to individuals, corporations or
associations not qualified to acquire or hold lands of the public domain
in the Philippines save in cases of hereditary succession.
That provision of the Constitution took effect on November 15, 1935
when the Commonwealth Government was established. The
interpretation as set forth in the Krivenko decision was only handed
down on November 15, 1947. Prior to that date there were many who
were of the opinion that the phrase agricultural land should be
construed strictly and not be made to
cover residential and commercial lots. Acting on that belief, several
transactions were entered into transferring such lots to alien vendees
by Filipino-vendors.
After the Krivenko decision, some Filipino vendors sought recovery of
the lots in question on the ground that the sales were null and void. No

definite ruling was made by this Court until September of 1953, when
on the 29th of said month, Rellosa v. Gaw Chee Hun,2 Bautista v. Uy
Isabelo,3 Talento v. Makiki,4 Caoile v. Chiao Peng5 were decided.
Of the four decisions in September, 1953, the most extensive
discussion of the question is found in Rellosa v. Gaw Chee Hun, the
opinion being penned by retired Justice Bautista Angelo with the
concurrence only of one Justice, Justice Labrador, also retired. Former
Chief Justice Paras as well as the former Justices Tuason and
Montemayor concurred in the result. The necessary sixth vote for a
decision was given by the then Justice Bengzon, who had a twoparagraph concurring opinion disagreeing with the main opinion as to
the force to be accorded to the two cases,6 therein cited. There were
two dissenting opinions by former Justices Pablo and Alex Reyes. The
doctrine as announced in the Rellosa case is that while the sale by a
Filipino-vendor to an alien-vendee of a residential or a commercial lot
is null and void as held in the Krivenko case, still the Filipino-vendor
has no right to recover under a civil law doctrine, the parties being in
pari delicto. The only remedy to prevent this continuing violation of the
Constitution which the decision impliedly sanctions by allowing the
alien vendees to retain the lots in question is either escheat or
reversion. Thus: "By following either of these remedies, or by
approving an implementary law as above suggested, we can enforce
the fundamental policy of our Constitution regarding our natural
resources without doing violence to the principle of pari delicto."7
Were the parties really in pari delicto? Had the sale by and between
Filipino-vendor and alien-vendee occurred after the decision in
the Krivenko case, then the above view would be correct that both
Filipino-vendor and alien-vendee could not be considered as innocent
parties within the contemplation of the law. Both of them should be
held equally guilty of evasion of the Constitution.
Since, however, the sales in question took place prior to
the Krivenko decision, at a time when the assumption could be
honestly entertained that there was no constitutional prohibition against
the sale of commercial or residential lots by Filipino-vendor to alienvendee, in the absence of a definite decision by the Supreme Court, it
would not be doing violence to reason to free them from the imputation
of evading the Constitution. For evidently evasion implies at the very
least knowledge of what is being evaded. The new Civil Code
expressly provides: "Mistakes upon a doubtful or difficult question of
law may be the basis of good faith."8
According to the Rellosa opinion, both parties are equally guilty of
evasion of the Constitution, based on the broader principle that "both
parties are presumed to know the law." This statement that the sales
entered into prior to the Krivenko decision were at that time already
vitiated by a guilty knowledge of the parties may be too extreme a
view. It appears to ignore a postulate of a constitutional system,
wherein the words of the Constitution acquire meaning through
Supreme Court adjudication.1awphl.nt
Reference may be made by way of analogy to a decision adjudging a
statute void. Under the orthodox theory of constitutional law, the act
having been found unconstitutional was not a law, conferred no rights,
imposed no duty, afforded no protection.9 As pointed out by former
Chief Justice Hughes though in Chicot County Drainage District v.
Baxter State Bank:10 "It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality
must be taken with qualifications. The actual existence of a statute,
prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always
be erased by a new judicial declaration. The effect of subsequent ruling
as to invalidity may have to be considered in various aspects, with
respect to particular relations, individual and corporate, and particular
conduct, private and official. Questions of rights claimed to have
become vested, of status, of prior determinations deemed to have
finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand
examination."
After the Krivenko decision, there is no doubt that continued
possession by alien-vendee of property acquired before its
promulgation is violative of the Constitution. It is as if an act granting
aliens the right to acquire residential and commercial lots were
annulled by the Supreme Court as contrary to the provision of the
Constitution prohibiting aliens from acquiring private agricultural land.
The question then as now, therefore, was and is how to divest the alien
of such property rights on terms equitable to both parties. That
question should be justly resolved in accordance with the mandates of
the Constitution not by a wholesale condemnation of both parties for
entering into a contract at a time when there was no ban as yet arising
from the Krivenko decision, which could not have been anticipated.
Unfortunately, under the Rellosa case, it was assumed that the parties,
being in pari delicto, would be left in the situation in which they were,
neither being in a position to seek judicial redress.

Would it not have been more in consonance with the Constitution, if

instead the decision compelled the restitution of the property by the
alien-vendee to the Filipino-vendor? Krivenko decision held in clear,
explicit and unambigous language that: "We are deciding the instant
case under section 5 of Article XIII of the Constitution which is more
comprehensive and more absolute in the sense that it prohibits the
transfer to aliens of any private agricultural land including residential
land whatever its origin might have been . . . . This prohibition [Rep.
Act No. 133] makes no distinction between private lands that are
strictly agricultural and private lands that are residential or commercial.
The prohibition embraces the sale of private lands of any kind in favor
of aliens, which is again a clear implementation and a legislative
interpretation of the constitutional prohibition. . . . It is well to note at
this juncture that in the present case we have no choice. We are
construing the Constitution as it is and not as we may desire it to be.
Perhaps the effect of our construction is to preclude aliens, admitted
freely into the Philippines, from owning sites where they may build their
homes. But if this is the solemn mandate of the Constitution, we will
not attempt to compromise it even in the name of amity or equity."11
Alien-vendee is therefore incapacitated or disqualified to acquire and
hold real estate. That incapacity and that disqualification should date
from the adoption of the Constitution on November 15, 1935. That
incapacity and that disqualification, however, was made known to
Filipino-vendor and to alien-vendee only upon the promulgation of
the Krivenko decision on November 15, 1947. Alien-vendee, therefore,
cannot be allowed to continue owning and exercising acts of ownership
over said property, when it is clearly included within the Constitutional
prohibition. Alien-vendee should thus be made to restore the property
with its fruits and rents to Filipino-vendor, its previous owner, if it could
be shown that in the utmost good faith, he transferred his title over the
same to alien-vendee, upon restitution of the purchase price of course.
The Constitution bars alien-vendees from owning the property in
question. By dismissing those suits, the lots remained in alien hands.
Notwithstanding the solution of escheat or reversion offered, they are
still at the moment of writing, for the most part in alien hands. There
have been after almost twenty years no proceedings for escheat or
reversion.
Yet it is clear that an alien-vendee cannot consistently with the
constitutional provision, as interpreted in theKrivenko decision,
continue owning and exercising acts of ownership over the real estate
in question. It ought to follow then, if such a continuing violation of the
fundamental law is to be put an end to, that the Filipino-vendor, who in
good faith entered into, a contract with an incapacitated person,
transferring ownership of a piece of land after the Constitution went
into full force and effect, should, in the light of the ruling in
the Krivenko case, be restored to the possession and ownership
thereof, where he has filed the appropriate case or proceeding. Any
other construction would defeat the ends and purposes not only of this
particular provision in question but the rest of the Constitution itself.
The Constitution frowns upon the title remaining in the alien-vendees.
Restoration of the property upon payment of price received by Filipino
vendor or its reasonable equivalent as fixed by the court is the answer.
To give the constitutional provision full force and effect, in consonance
with the dictates of equity and justice, the restoration to Filipino-vendor
upon the payment of a price fixed by the court is the better remedy. He
thought he could transfer the property to an alien and did so. After
the Krivenko case had made clear that he had no right to sell nor an
alien-vendee to purchase the property in question, the obvious solution
would be for him to reacquire the same. That way the Constitution
would be given, as it ought to be given, respect and deference.
It may be said that it is too late at this stage to hope for such a solution,
the Rellosa opinion, although originally concurred in by only one
justice, being too firmly imbedded. The writer however sees a welcome
sign in the adoption by the Court in this case of the concurring opinion
of the then Justice, later Chief Justice, Bengzon. Had it been followed
then, the problem would not be still with us now. Fortunately, it is never
too late not even in constitutional adjudication.

Jakosalem vs. Rafols, 73 Phil. 628 (1942).

T.s.n., pp. 73-74, June 20, 1960.

T.s.n., pp. 70-71, 73-74, June 20, 1960 (emphasis added).

T.s.n., pp. 54-55, June 6, 1960.

10

T.s.n., p. 86, June 20, 1960 (emphasis added).

11

T.s.n., pp. 69-70, June 20, 1960.

12

Article 1332 of the Civil Code provides that "When one of

the parties is unable to read or if the contract is in a
language not understood by him, and mistake or fraud is
alleged, the person enforcing the contract must show that
the terms thereof have been fully explained to the former."
13

T.s.n., p. 11, June 21, 1960.

14

T.s.n., pp. 119-120, June 20, 1960.

15

T.s.n., p. 76, June 6, 1960.

16

Rodriguez v. Rodriguez, G.R. L-23002, July 31, 1967;

Enriquez de la Cavada v. Diaz, 37 Phil. 982 (1918) ; see also
Puato v. Mendoza, 64 Phil. 457 (1937).
17

T.s.n., p. 79, June 6, 1960 (emphasis added).

18

T.s.n., p. 121, June 20, 1960.

19

Rodriguez v. Rodriguez, supra, note 16.

20

79 Phil. 461, 480-481 (1947) (emphasis added). The

statement in Smith, Bell & Co. v. Register of Deeds, 96 Phil.
53, 61-62 (1954), to the effect that an alien may lease lands
in the Philippines for as long as 99 years under article 1643
of the Civil Code, is obiter as the term of the lease in that
case for 25 years only, renewable for a like period, and the
character (whether temporary or permanent) of rights under
a 99-year lease was not considered.
21

The contract (Plff Exh. 6) of November 18, 1958 provides

that "Sa loob nang nabanggit na panahon limangpung (50)
taon na hindi pa ginagamit ni WONG o kaniyang kaanak ang
karapatan nilang bumili, ay ang nabanggit na lupa ay hindi
maaring ipagbili, ibigay, isangla, o itali ng MAY-ARI sa iba"
[Within the said period of fifty (50) years during which neither
WONG nor any of his children has exercised the option to
buy, the said piece of land cannot be sold, donated,
mortgaged or encumbered in favor of other persons by the
owner].
22

Supra, note 20.

23

Cf. Rellosa v. Gaw Chee Hun, 93 Phil. 827, 836 (1953)

(Cesar Bengzon, J., concurring) : "Perhaps the innocent
spouse of the seller and his creditors are not barred from
raising the issue of invalidity."
24

Const. art. XIII sec. 5.

25

Supra, note 20, at 480-481.

26

93 Phil. 827 (1953).

27

Footnotes
1

43 Phil. 873 (1922).

Id. at 876.

55 Phil. 99 (1930).

77 Phil. 470 (1946).

Civ. Code, art. 1197.

According to the lower court the amount should be

P38,422.94, but the difference appears to be the result of an
error in addition.
28

According to the trial court the amount should be

P56,554.25, but the difference appears to be due to the error
pointed out in note 27.
29

T.s.n., pp. 6-8, July 26, 1960.

30

T.s.n., p. 35, July 26, 1960.

31

T.s.n., pp. 31-35, July 26, 1960.

law. When the acquisition appears in a public

document, the capacity of the parties has already
been passed upon by competent authority, and
even established by appeals taken from final
judgments and administrative remedies against
the qualification of registrars, and the possibility of
error is remote under such circumstances; but,
unfortunately, private documents and even verbal
agreements far exceed public documents in
number, and while no one should be ignorant of
the law, the truth is that even we who are called
upon to know and apply it fall into error not
infrequently. However, a clear, manifest, and truly
unexcusable ignorance is one thing, to which
undoubtedly refers article 2, and another and
different thing is possible and excusable error
arising from complex legal principle and from the
interpretation of conflicting doctrines.

FERNANDO, J., concurring:

1

79 Phil. 461 (1947).

93 Phil. 827.

93 Phil. 843.

93 Phil. 855.

93 Phil. 861. See also Arambulo v. Cua So, (1954) 95 Phil.

749; Dinglasan v. Lee Bun Ting, (1956) 99 Phil. 427.

"But even ignorance of the law may be based

upon an error of fact, or better still, ignorance of a
fact is possible as to the capacity to transmit and
as to the intervention of certain persons,
compliance with certain formalities and
appreciation of certain acts, and error of law is
possible in the interpretation of doubtful
doctrines.'" (Manresa, Commentaries on the
Spanish Civil Code, Volume IV, pp. 100, 101 and
102.)

Bough v. Cantiveros, (1919) 40 Phil. 210 and Perez v.

Herranz (1902) 7 Phil. 693.
7

At p. 835.

Art. 526, par. 3. The above provision is merely a reiteration

of the doctrine announced in the case ofKasilag v.
Rodriguez decided on December 7, 1939 (69 Phil. 217), the
pertinent excerpt follows:
9

"This being the case, the question is whether good

faith may be premised upon ignorance of the laws.
Manresa, commenting on article 434 in connection
with the preceding article, sustains the affirmative.
He says:
"'We do not believe that in real life there are not
many cases of good faith founded upon an error of

Norton v. Shelby County, (1886) 118 U.S. 425.

10

308 U.S. 731 (1940).

11

79 Phil. 461, 480 (1947).