FUA CAM LU, plaintiff-appellee, vs. YAP FAUCO and YAP SINGCO, defendants-appellants.

July 30, 1943 | G.R. No. 48797

Yulo, C.J.
ELAM

FACTS:
Cast
Mr. Fauco and Mr. Singco Mr. Fua = plaintiff, appellee
 Plaintiff-appellee, Fua Cam Lu, obtained in Civil Case No. 42125 of CFI Manila a judgment sentencing the defendants-appellants,
Yap Fauco and Yap Singco, to pay P1,538 with legal interest and costs.
o By virtue of Writ of Execution, a parcel of land belonging to Fauco and Singco, assessed at P3,550 and situated in Sorsogon,
was levied upon by Provincial Sheriff (made a notice; posted, and published in the Press, that said land would be sold at
public auction).

 1933 – Then, Fauco and Singco executed a mortgage in favor of Fua, wherein it was stipulated that the obligation under
judgment in Civil Case 42125 was reduced to P1,200 payable in 4 installments of P300; that to secure payment of said P1,200, a
camarin belonging to Fauco and Singco, and built on the land, was mortgaged to Fua. As a result of this agreement, the sale of
the land advertised by the provincial sheriff did not take place.
 However, pursuant to an alias Writ of Execution issued by CFI Manila, the Provincial Sheriff, w/o publication of notice, sold said
land at a public auction to Fua for P1,923. The Provincial Sheriff executed a final deed in favor of Fua.
 Fauco and Singco refused to vacate land.

 1939 - Fua instituted present action against Fauco and Singco due to their refusal to recognize Fua's title, and to vacate
the land.
 Fauco and Singco’s defense: their obligation under the judgment in Civil Case No. 42125 was novated by mortgage executed by
them in favor of Fua, and that Sheriff's sale via alias WOE was void for lack of necessary publication.
 Lower Court: declared Fua as owner of land, ordering Fauco and Singco to deliver the same to him.
 Fauco and Singco seek reversal of judgment.

ISSUE: WoN there was novation of the obligation thru the execution of mortgage by Fauco and Singco in favor of Fua. --YES

RULING:
Fauco and Singco averred: There was novation – obligation to pay 1,528 was novated to payment of 1,200 payable in 4
installments + mortgage x x x
Fua averred: There was NO novation.
Court ruled (in favor of Fauco and Singco):
 Court concurred with the theory that Fauco and Singco's liability under the judgment in the civil case was extinguished by
settlement evidenced by mortgage executed by them in favor of Fua.
 Although the said mortgage did not expressly cancel the old obligation, this was impliedly novated by reason of incompatibility
from fact that -- judgment was for P1,538 payable at one time, did not provide for attorney's fees, and was not secured; the
new obligation is for P1,200 payable in installments, stipulates attorney's fees, and is secured by a mortgage.
 Fua, however, argues that the later agreement merely extended time of payment, and did not take away his concurrent right to
have the judgment executed. Court ruled, this could not have been the purpose for executing the mortgage, because it was
recited that Fauco and Singco promised to pay P1,200 to Fua as settlement of judgment in that civil case. Said judgment cannot
be said to have been settled, unless it was extinguished.

 On another note, Court ruled that the Sheriff's sale in favor of Fua is void because no notice was published.
o Lack of new publication is shown by Fua's own evidence; he admitted that there was no new publication, and this
destroyed the presumption of regularity of performance of official duty.
o In his brief, Fua merely argued "Sec 460 of Act 190 authorized the Sheriff to adjourn any sale upon execution to any date
agreed upon in writing by the parties . . . and does not require the Sheriff to publish anew the public sale which was
adjourned."
o Here, Fua correctly stated the law but failed to show that it supports his side. There was no any written agreement
between the parties to adjourn the sale advertised. Also, it is not pretended that the sale in favor of Fua was by virtue of a
mere adjournment, it appearing that it was made pursuant to an alias writ of execution.

DISPOSITION:
The appealed judgment is; therefore, reversed and the defendants- appellants, who are hereby declared to be the owners of the
land in question, are absolved from the complaint, with costs against the appellee. So ordered.