859 Phil. 440
REYES, J. JR., J.:
WHEREFORE, the Appeal is partially granted. The Decision dated September 15, 2010 rendered by the Regional Trial Court of Quezon City, Branch 81 in Civil Case No. Q-06-57416 is hereby AFFIRMED with MODIFICATIONS, as follows:From the above Decision of the CA, all the parties (Dy, Tanghal and Petitioners) filed their respective Motions for Partial Reconsideration/Partial Motions for Reconsideration.[6] Notable is the Motion[7] filed by petitioners wherein they prayed that the CA partially reconsider its Decision by granting their right of legal redemption over the one-third (1/3) share of Celia through the payment of one-third of the mortgage debt, without interest, to be exercised within a reasonable period to be set by the trial court.
1. The Deed of Real Estate Mortgage Contract dated February 23, 2005, Deed of Real Estate Mortgage dated August 24, 2005, and the Amendment of the Deed of Real Estate Mortgage dated September 9, 2005 are declared null and void only in so far as the interests of Plaintiffs-Appellees Angelina Bayan and Jaime Bayan are concerned;
2. The extra-judicial foreclosure proceedings, public auction sale and Sheriff's Sale conducted by Assisting Deputy Sheriff Rolando G. Acal of the office off the Clerk of Court, Regional Trial Court, Quezon City, are hereby inefficacious and have no legal force and effect only in so far as the interests of Plaintiffs-Appellees Angelina Bayan and Jaime Bayan are concerned;
3. The case is remanded to the Regional Trial Court of Quezon City: (a) determine the exact extent of the respective rights, interests, shares, and participation of Defendants-Appellants Tanghal and Dy and the Plaintiffs-Appellees over the subject properties, and (b) thereafter, to effect a final division, adjudication, and partition in accordance with law.
4. The Register of Deeds of Quezon City is hereby ordered to cancel the Certificates of Sale inscribed on Transfer Certificate of Title Nos. N-140606, N-140607 and N-140608 in favor of defendants Ma. Luisa Tanghal and Edward Dy and issue new ones in accordance with the determination of the RTC.
The RTC's pronouncements on moral damages and attorney's fees are affirmed in toto.
SO ORDERED.[5]
Considering Plaintiffs-Appellees Angelina and Jaime Bayan are raising the issue of their right of legal redemption only now in their motion for reconsideration, We are constrained to deny their Motion for Partial Reconsideration. The right of redemption was not prayed for much less alleged in the Complaint, hence, We cannot now include a determination of the same in Our resolution.[8] (Citations omitted)Dissatisfied with the resolution of the CA, petitioners filed the instant Petition with this Court, anchored on the following issues:
In their Motions for Partial Reconsideration/Partial Motions for Reconsideration, petitioners as co-owners of mortgagor Celia in the subject parcel of land, intended to exercise their right to legal redemption pursuant to Article 1620 of the Civil Code. The issue of right of legal redemption was neither raised in the RTC nor was even mentioned in the proceedings before the CA. As mentioned, it was raised for the very first time only in petitioners' Motion for Partial Reconsideration with the CA. We agree with the CA that this is not allowed. No question will be considered on appeal much more in the motion for reconsideration with the appellate court, when it was not raised in the court below. Otherwise, the court will be forced to make a judgment that goes beyond the issues and will adjudicate something in which the court did not hear the parties. As held by this Court:I.
Whether or not the Honorable Court of Appeals erred in ruling that the petitioners cannot raise their right of legal redemption for the first time on appeal even though it was not relevant to raise the same before the trial court's level.II.
Whether or not the Honorable Court of Appeals erred in not considering the fact that the mortgagees are not mortgagees-in-good-faith in denying petitioners the right of legal redemption.[9]
The rule is well-settled that points of law, theories, issues and arguments not adequately brought to the attention of the lower court need not be considered by the reviewing court as they cannot be raised for the first time on appeal, much more in a motion for reconsideration as in this case, because this would be offensive to the basic rules of fair play, justice and due process. This last ditch effort to shift to at new theory and raise a new matter in the hope of a favorable result is a pernicious practice that has consistently been rejected.[10] (Citation omitted; underlining supplied)Petitioners argued that they belatedly raised the issue of their right of legal redemption because it was only on appeal that the partial validity of the mortgage was entertained by the CA and that the latter had ruled that Celia had the right to sell or even mortgage her undivided interest in the property pursuant to Article 493[11] of the Civil Code.
Art. 1623. The right of legal pre-emption redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case maybe. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners.Thus, in the old case of Butte vs. Manuel Uy and Sons, Inc.,[13] the Court ruled that Art. 1623 of the Civil Code clearly and expressly prescribes that the 30 days for making the pre-emption or redemption are to be counted from notice in writing by the vendor. The reason for this is because the vendor of an undivided interest is in the best position to know who are his co-owners, who under the law must be notified of the sale.[14] As held in one case:
The right of redemption of co-owners excludes that of adjoining owners.
It is likewise the notification from the seller, not from anyone else, which can remove all doubts as to the fact of the sale, its perfection, and its validity, for in a contract of sale, the seller is in the best position to confirm whether consent to the essential obligation of selling the property and transferring ownership thereof to the vendee has been given.[15]Keeping in mind the rationale behind the written notice of sale by the vendor/s (co-owner/mortgagor) to the redemptioners, the Court in the case of Etcuban v. Court of Appeals[16] has clarified that even if it was not sent by the vendor as long as the redemptioners were notified in writing, the same is sufficient for their right to redeem to accrue, thus:
While it is true that written notice is required by the law (Art. 1623), it is equally true that the same Art. 1623 does not prescribe any particular form of notice, nor any distinctive method for notifying the redemptioner. So long, therefore, as the latter is informed in writing of the sale and the particulars thereof, the 30 days for redemption start running, and the redemptioner has no real cause to complain. In the Conejero case, we ruled that the furnishing of a copy of the disputed deed of sale to the redemptioner was equivalent to the giving of written notice required by law in "a more authentic manner than any other writing could have done," and that We cannot adopt a stand of having to sacrifice substance to technicality.[17] x x x (Citations omitted)In the case of Francisco v. Boiser,[18] the Court has adopted the rule that any written notice is sufficient such that it ruled that the receipt by petitioner of summons in a civil case amounted to actual knowledge of the sale on the basis of which petitioner may now exercise his right of redemption. Justifying its ruling, the Court cited an instance where a vendor can delay or even effectively prevent the meaningful exercise of the right of redemption by not immediately notifying the co-owner of the sale, thereby causing serious prejudice to a redemptioner's right of legal redemption.[19] To avoid this, the Court ruled that any written notice of sale (even if not sent by the vendor) is sufficient in order for the right of legal redemption of a co-owner to accrue.