480 Phil. 111
CARPIO MORALES, J.:
The defendant Gregorio Averia, Sr. had established that he had paid plaintiff Domingo Averia P10,000.00 although denied by the latter but Domingo Averia did not deny receiving the amount of P5,000.00 on July 10, 1983 given by Gregorio Averia’s wife Agrifina. According to the testimony of defendant’s witness, plaintiff Domingo Averia sold on July 10, 1983 his inheritance share in the property [consisting of a] house and lot located at 725 Extremadura because he was in . . . need of money and that he was paid P5,000.00 on July 10, 1983 by Agrifina Averia and another P5,000.00 by Major Gregorio Averia inside his room at the Makati Police Department three (3) days later. The reason why Domingo Averia became insistent in claiming his inheritance is the fact that Gregorio Averia refused the request of Domingo Averia and his children to occupy the portion of subject house which was sold to him by their mother and it was for this reason that they sought the assistance of the Citizens Legal Assistance Office (CLAO), Atty. Benjamin Roxas in writing defendant Gregorio Averia to allow him (Domingo Averia) to occupy a portion of subject house but plaintiff Domingo Averia did not tell his brothers and sisters that he had already sold his 1/6 share of the inheritance although verbally in favor of Gregorio Averia and his wife.Accordingly, the trial court disposed as follows, quoted verbatim:
In the light of the foregoing, the Court, after a circumspect assessment of the evidence presented by both parties, hereby declares, that defendant Gregorio Averia then a major of police precinct in Makati was the person responsible for the expenses in litigation in Civil Case No. 79955, involving the property and their mother had indeed awarded him with ½ portion of the property and that Domingo Averia sold 1/6 of [his] share of the remaining ½ portion of the property to defendant Gregorio. (Underscoring supplied)
WHEREFORE, the remaining 5/6 of ½ of the property may still be subject of partition among the remaining heirs but the summary settlement of the remaining estate of the 5/6 remaining portion of the estate . . . may be sold and the proceeds thereof be distributed among the heirs in accordance with the aliquot portions of each and every heir of the deceased Macaria Francisco.Both parties are hereby ordered to shoulder their respective expenses for attorney’s fees and litigation costs. (Underscoring supplied)
the appellate court reversed the decision of the trial court.
- THE TRIAL COURT ERRED IN ITS FINDING THAT THERE WAS A SALE OF ONE-HALF OF THE DECEASED MACARIA F. AVERIA’S INTEREST AND OWNERSHIP OVER THE SUBJECT PROPERTY IN FAVOR OF DEFENDANT-APPELLEE GREGORIO AVERIA.
- THE TRIAL COURT ERRED IN ALLOWING THE RECEPTION OF PAROL EVIDENCE TO THE EFFECT THAT PLAINTIFF-APPELLANT DOMINGO AVERIA HAD ALREADY DISPOSED OF HIS ONE SIXTH (1/6) SHARE OF THE SUBJECT PROPERTY IN FAVOR OF DEFENDANT-APPELLEE GREGORIO AVERIA (Emphasis supplied),
[T]he alleged conveyances purportedly made by Macaria Francisco and plaintiff-appellant Domingo Averia are unenforceable as the requirements under the Statute of Frauds have not been complied with. Article 1403, 2(e) of the New Civil Code is explicit:The appellate court thus remanded the case to the trial court.Art. 1403. The following contracts are unenforceable, unless they are ratified:The two (2) transactions in question being agreements for the sale of real property or of an interest therein are in clear contravention of the prescription that it must be in writing and subscribed by the party charged or by an agent thereof. Hence, the strong insistence by defendants-appellees on the verbal conveyances cannot be made the basis for the alleged ownership over the undivided interests claimed by Gregorio Averia.
(1) x x x
(2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement thereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party charged, or by this agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents:
(a) x x x;
(b) x x x;
(e) an agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;
(f) x x x”
The parol evidence upon which the trial court anchored its award in favor of defendant-appellee Gregorio Averia is irregular as such kind of evidence is foreclosed by Article 1403 of the Civil Code that no evidence of the alleged agreements can be received without the writing of secondary evidence which embodies the sale of the real property. The introduction of the testimonies of Gregorio Averia’s witnesses were timely objected to by plaintiffs-appellants. Since the testimonies of defendants-appellees’ witnesses are inadmissible, then such exclusion has pulled the rug under the assailed decision of the trial court and it has no more leg to stand on.
In the vain attempt to salvage the situation, defendants-appellees however argue that the Article 1403 or the Statute of Frauds does not apply because the same only refers to purely executory contracts and not to partially or completely executed contracts.
This contention is untenable. It was not amply demonstrated how such alleged transfers were executed since plaintiffs-appellants have vigorously objected and opposed the claims of ownership by defendants-appellees. He who asserts a fact or the affirmative of an issue has the burden of proving it. Defendants-appellees miserably failed in this respect.
While this Court cannot discount the fact that either defendant-appellee Gregorio Averia or plaintiff-appellant Domingo Averia may have valid claims against the estate of Macaria Francsico, such matter can best be threshed out in the proceedings for partition before the court a quo bearing in mind that such partition is subject to the payment of the debts of the deceased under Article 1078 of the Civil Code. (Citations omitted; Emphasis and underscoring supplied)
WHEREFORE, the decision dated July 19, 1991 is reversed and set aside. The case is remanded to the court a quo which is directed to effect the partition of the subject property or if not, possible, sell the entire lot and distribute the proceeds of the sale based on equal shares among the children of the late Macaria Francisco after debts of the said deceased are paid or settled pursuant to Article 1078 of the Civil Code. (Underscoring supplied)Gregorio and Sylvanna’s motion for reconsideration having been denied by the appellate court, they lodged the Petition for Review on Certiorari at bar upon the following assignment of errors:
Petitioners contend that contrary to the findings of the Court of Appeals, they were able to amply establish, by the testimonies of credible witnesses, the conveyances to Gregorio of ½ of the Sampaloc property and 1/6 of the remaining half representing the share of Domingo.
- THE COURT OF APPEALS (SECOND DIVISION) ERRED IN ITS FINDING THAT THERE WAS NO SALE OF ONE-HALF (1/2) OF THE DECEASED MACARIA F. AVERIA’S INTEREST AND OWNERSHIP OVER THE SUBJECT PROPERTY IN FAVOR OF PETITIONER GREGORIO F. AVERIA.
- THE COURT OF APPEALS (SECOND DIVISION) ERRED IN ITS FINDING THAT THE RECEPTION OF PAROL EVIDENCE TO THE EFFECT THAT RESPONDENT DOMINGO AVERIA HAD ALREADY SOLD HIS ONE SIXTH (1/6) SHARE IN THE SUBJECT PROPERTY IN FAVOR OF PETITIONER GREGORIO AVERIA IS NOT IN ACCORDANCE WITH LAW.
ARTICLE 1403. The following contracts are unenforceable, unless they are ratified:Contrary then to the finding of the CA, the admission of parol evidence upon which the trial court anchored its decision in favor of respondents is not irregular and is not foreclosed by Article 1405.
x x x
(2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents:
x x x
(e) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;
x x x (Emphasis and underscoring supplied),
The statute of frauds is not applicable to contracts which are either totally or partially performed, on the theory that there is a wide field for the commission of frauds in executory contracts which can only be prevented by requiring them to be in writing, a fact which is reduced to a minimum in executed contracts because the intention of the parties becomes apparent by their execution, and execution concludes, in most cases, the rights of the parties. However it is not enough for a party to allege partial performance in order to render the Statute of Frauds inapplicable; such partial performance must be duly proved. But neither is such party required to establish such partial performance by documentary proof before he could have the opportunity to introduce oral testimony on the transaction. The partial performance may be proved by either documentary or oral evidence. (Emphasis, underscoring and italics supplied)The testimonies of petitioners’ witnesses being credible and straightforward, the trial court did not err in giving them credence.
Not only on account of Sylvana’s manner of testifying that her testimony should be given weight. Her testimony was against the interest of her mother Teresa whom she represented, her mother being also an heir of Macaria. If the transfer by Macaria to Gregorio of ½ of the property is upheld as valid and enforceable, then the share of the other heirs including Sylvanna’s mother would considerably be reduced.
Q: Are you the same Sylvana Vergara representing the defendant Teresa Averia in this case? WITNESS: A: Yes, sir. Q: Now on February 28, 1972, about 5:30 in the afternoon, where were you? A: As far as I can remember, I was inside my residence at 725 Extremadura at that date, and time. Q: On that date and time, where were you residing? A: At said address, 725 Extremadura Street, that time and date at 5:30 in the afternoon. Q: Who were your companions if you have any? A: I was there with my brothers and sisters and Uncle Gregorio and Auntie Agripina and the children and my grand mother and also the lady who is leading in the prayers because on that date it is the anniversary of the death of my grandfather. Q: What is the name of your grandmother? A: Macaria Averia, sir. Q: Now, this Gregorio Averia whom you identified to be your Uncle, is he the same Gregorio Averia who is also the defendant in this case? WITNESS: A: The same, sir. What is the name of your grandfather whom you said whose death anniversary you are then celebrating on that date? Roberto Romero, sir. Q: What actually you were doing that time 5:30? A: We had a gathering and merienda in recollection of the celebration (sic) of the death of my grandfather, sir. Q: When you said you were eating then, where were you eating then? A: It was beside my grandmother. Q: Where? A: At the dining room, sir. Q: So you were sitting at the dining table all of you? A: Yes, sir the others were a little bit near the table. Q: Who were seated in the dining table? A: The Spouses Gregorio and Agripina, my sister Beth and my cousins and my Lola Macaria. Q: When you were then seated in taking that ginatan as you stated what transpired? A: Somebody called up and the one who called up was the Secretary of a lawyer and they were asking for [payment of] expenses in connection with . . . [Criminal Case No. 79955]. Q: You said that it was Agripina who was the one who answered that telephone call. After answering it, what did she say to anyone seated in that table? A: Agripina said if Gregorio has some money, he will pay them but Gregorio said he will be responsible for the expenses. Q: Did you come to know how much was amount being asked? A: P500.00, sir. Q: What else happened after Gregorio said that he would answer for the expenses to be sent to the lawyer? A: My Lola said that she was embarrassed and ashame[d] because at that time she d[id] not have any money and it was the couple who was taking the expenses of the case. Q: When you said “Lola,” you are referring to Macaria Averia? A: Yes, sir. Q: What else transpired? A: Because of her embarrassment, she told [them that] one half (1/2) of the House and Lot will be given to the couple to cover the expenses of the case. ATTY. DOMINGO: Q: To whom did your grandmother say this? A: Well, she said that to Gregorio and Agripina and Gregorio told her, if that is what you wish, I will agree to your proposal. Q: What was the reply of your grand mother? A: My Lola told Gregorio that since you agree, you better prepare all the documents and we will make ready the documents for the division or partition. Q: Do you know what House and Lot one half (1/2) of which your grand mother was given (sic) to your Uncle and Auntie . . .? A: She is referring to the House and Lot where I used to live before. Q: You are referring to the House and Lot located at 725 Extremadura Street, Sampaloc, Manila. A: Yes, sir. x x x (Emphasis and underscoring supplied)