Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 143286 April 14, 2004
PROCOPIO VILLANUEVA, NICOLAS RETUYA and PACITA
VILLANUEVA, petitioners,
vs.
COURT OF APPEALS and THE HEIRS OF EUSEBIA NAPISA RETUYA, respondents.
DECISION
CARPIO, J .:
This petition for review on certiorari
1
seeks the reversal of the Court of Appeals Decision dated
31 January 2000 as well as its Resolution dated 25 April 2000 in CA-G.R. No. CV-46716. The
assailed Decision dismissed petitioners appeal of the Decision of the Regional Trial Court,
Branch 55, Mandaue City ("trial court").
On 13 October 1988, Eusebia Napisa Retuya ("Eusebia") filed a complaint before the trial court
against her husband Nicolas Retuya ("Nicolas"), Pacita Villanueva ("Pacita"), and Nicolas son
with Pacita, Procopio Villanueva ("Procopio"). Eusebia sought the reconveyance from Nicolas
and Pacita of several properties listed in paragraph 2 of the complaint ("subject properties"),
claiming the subject properties are her conjugal properties with Nicolas. Eusebia also prayed for
accounting, damages and the delivery of rent and other income from the subject properties.
Antecedent Facts
The facts as found by the trial court are as follows:
Plaintiff Eusebia Napisa Retuya, is the legal wife of defendant Nicolas Retuya, having
been married to the latter on October 7, 1926. Out of the lawful wedlock, they begot five
(5) children, namely, Natividad, Angela, Napoleon, Salome, and Roberta. Spouses
Retuya resided at Tipolo, Mandaue City. During their marriage they acquired real
properties and all improvements situated in Mandaue City, and Consolacion, Cebu, more
particularly described as follows:
1. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24951;
2. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24952;
3. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24953;
4. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24954;
5. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24956;
6. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24957;
7. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24958;
8. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01042;
9. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01043;
10. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01046;
11. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01041;
12. A parcel of land located at Nawanao-Subangdaku, Mandaue City covered by tax dec. No. 01488;
13. A parcel of land located at Baklid, Mandaue City, covered by tax dec. No. 00492;
14. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01044;
15. A residential house located at Tipolo, Mandaue City covered by tax dec. No. 01050;
16. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01048;
17. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01051;
18. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01047;
19. A parcel of land located at Banilad, Mandaue City covered by tax dec. No. 02381;
20. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01049;
21. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01045;
22. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01450 (in the name of Pacita Villanueva).
Also, defendant, Nicolas Retuya, is co-owner of a parcel of land situated in Mandaue
City which he inherited from his parents Esteban Retuya and Balbina Solon as well as the
purchasers of hereditary shares of approximately eight (8) parcels of land in Mandaue
City.
Some of these properties above-mentioned earn income from coconuts and the other
lands/houses are leased to the following:
a) Mandaue Food Products Company for Lot 121-F, Lot 121-G and Lot 121-H
under TCT No. 11300 at an annual rental of P10,800.00;
b) Barben Wood Industries, Inc. for Lot 148 covered by TCT No. l731 for an
annual rental ofP21,600.00;
c) Metaphil, Inc. parcel of land consisting of 2,790.51 sq. meters at the rate
of P2,700.00 annually for the first five (5) years, and P3,240.00 for the second
years;
d) Benedicto Development Corp. for a portion of Lot 148 covered by TCT No.
1731 for a period of 20 years at an annual rate of P3,500.00 renewable for another
20 years after April 1, 1995 at an annual rate of P4,000.00;
e) Benedicto Development Corporation for a portion of Lot No. 148 covered by
Certificate of Title No. 1731 over an area of 6,000 sq. meters for an annual rental
of P9,500.00 for a period of 2 years from June 1, 1982;
f) Visayan Timber and Machinery Corp. over a parcel of land at Nawanaw,
Mandaue City, for a period of 2 years from June 1, 1987 and renewable for
another 12 years at an annual income ofP4,000.00;
g) House lessees listed in Exhibit "13" with total monthly rentals of P1,975.00 a
month for the 24 lessees or P24,700.00 annually. (Exhs. "7" to "13")
In 1945, defendant Nicolas Retuya no longer lived with his legitimate family and
cohabited with defendant, Pacita Villanueva, wherein defendant, Procopio Villanueva, is
their illegitimate son. Nicolas, then, was the only person who received the income of the
above-mentioned properties.
Defendant, Pacita Villanueva, from the time she started living in concubinage with
Nicolas, has no occupation, she had no properties of her own from which she could
derive income.
In 1985, Nicolas suffered a stroke and cannot talk anymore, cannot walk anymore and
they have to raise him up in order to walk. Natividad Retuya knew of the physical
condition of her father because they visited him at the hospital. From the time defendant
Nicolas Retuya suffered a stroke on January 27, 1985 and until the present, it is defendant
Procopio Villanueva, one of Nicolas illegitimate children who has been receiving the
income of these properties. Witness Natividad Retuya went to Procopio to negotiate
because at this time their father Nicolas was already senile and has a childlike mind. She
told defendant, Procopio that their father was already incapacitated and they had to talk
things over and the latter replied that it was not yet the time to talk about the matter.
Plaintiff, then, complained to the Barangay Captain for reconciliation/mediation but no
settlement was reached, hence, the said official issued a certification to file action.
Written demands were made by plaintiff, through her counsel, to the defendants,
including the illegitimate family asking for settlement but no settlement was reached by
the parties.
Further, plaintiffs witness, Natividad Retuya, testified that the parcel of land covered by
tax declaration marked Exhibit "T" was the property bought by her father from Adriano
Marababol for at the time of purchase of the property, defendant Pacita Villanueva had
no means of livelihood (TSN, p. 6).
The trial court rendered its Decision on 16 February 1994 in favor of Eusebia. The dispositive
portion of the Decision states:
WHEREFORE, in view of the foregoing considerations, judgment is rendered in favor of
the plaintiff Eusebia Napisa Retuya and against defendants Procopio Villanueva, Nicolas
Retuya and Pacita Villanueva:
1. Declaring the properties listed in paragraph 2 of the amended complaint as
conjugal properties of the spouses plaintiff Eusebia Retuya and the defendant
Nicolas Retuya;
2. Ordering the transfer of the sole administration of conjugal properties of the
spouses Eusebia Retuya and Nicolas Retuya in accordance with Art. 124 of the
Family Code to the plaintiff Eusebia Napisa Retuya;
3. Ordering defendant Procopio Villanueva to account and turnover all proceeds
or rentals or income of the conjugal properties from January 27, 1985 when he
took over as administrator thereof and until he shall have ceased administering
the same in accordance with the judgment of this Court;
4. Ordering defendants jointly and severally to reconvey the parcel of land
situated at Tipolo, Mandaue City now in the name of defendant Pacita Villanueva
under tax dec. No. 01450 and transfer the same into the names of the conjugal
partners Eusebia N. Retuya and Nicolas Retuya;
5. Ordering the City Assessors Office of Mandaue City to cancel tax declaration
No. 01450 in the name of Pacita Villanueva and direct the issuance of a new title
and tax declaration in the names of Eusebia Napisa Retuya and Nicolas Retuya;
6. Ordering defendants jointly and severally to reconvey that certain building of
strong materials located at Tipolo, Mandaue City under tax dec. No. 01450 into
the names of Eusebia Retuya and Nicolas Retuya;
7. Ordering defendants jointly and severally to pay plaintiff the sum
of P50,000.00 by way of attorneys fees and expenses of litigation in the sum
of P5,000.00 plus the costs.
SO ORDERED.
Petitioners appealed the trial courts decision to the Court of Appeals. Eusebia died on 23
November 1996. Thereafter, Eusebias heirs substituted her pursuant to the resolution of the
Court of Appeals dated 7 April 1997. The Court of Appeals eventually upheld the Decision of
the trial court but deleted the award of attorneys fees, ruling in this wise:
WHEREFORE, the decision dated February 16, 1994 is AFFIRMED with the
modification that the award of attorneys fees of P50,000.00 is deleted.
SO ORDERED.
Petitioners filed a Motion for Reconsideration on 23 February 2000 which the Court of Appeals
denied in a Resolution dated 11 May 2000.
Hence, this petition.
The Trial Courts Ruling
The trial court applied Article 116 of the Family Code, which reads:
Art. 116. All property acquired during the marriage, whether the acquisition appears to
have been made, contracted or registered in the name of one or both spouses, is presumed
conjugal unless the contrary is proved.
The trial court ruled that the documents and other evidence Eusebia presented constitute "solid
evidence" which proved that the subject properties were acquired during her marriage with
Nicolas. This made the presumption in Article 116 applicable to the subject properties. Thus, the
trial court ruled that Eusebia had proved that the subject properties are conjugal in nature. On the
other hand, the trial court found that petitioners failed to meet the standard of proof required to
maintain their claim that the subject properties are paraphernal properties of Nicolas. The trial
court added that Pacita presented no "factual solidity" to support her claim that she bought Lot
No. 152
2
exclusively with her own money.
The Court of Appeals Ruling
The Court of Appeals concurred with the findings of the trial court. The appellate court found
that Pacita failed to rebut the presumption under Article 116 of the Family Code that the subject
properties are conjugal. The appellate court dismissed Pacitas defense of prescription and laches
since she failed to have the issue included in the pre-trial order after raising it in her answer with
her co-petitioners.
The Issues
Petitioners Nicolas, Pacita and Procopio contend that both the trial and appellate courts erred in
ruling in favor of Eusebia. They seek a reversal and raise the following issues for resolution:
1. WHETHER THE COURT OF APPEALS ERRED IN SUSTAINING THE
DECLARATION OF THE TRIAL COURT THAT THE PROPERTIES LISTED IN
PARAGRAPH 2 OF THE COMPLAINT ARE CONJUGAL PROPERTIES OF
NICOLAS RETUYA AND EUSEBIA RETUYA ALTHOUGH THIS WAS NOT ONE
OF THE CAUSES OF ACTION IN EUSEBIAS COMPLAINT.
2. WHETHER THE COURT OF APPEALS ERRED IN APPLYING THE
PRESUMPTION THAT PROPERTIES ACQUIRED DURING THE EXISTENCE OF
THE MARRIAGE OF NICOLAS RETUYA AND EUSEBIA RETUYA ARE
CONJUGAL.
3. WHETHER THE COURT OF APPEALS ERRED IN NOT APPLYING INSTEAD
THE PRESUMPTION UNDER ARTICLE 148 OF THE FAMILY CODE IN FAVOR
OF CO-OWNERSHIP BETWEEN NICOLAS RETUYA AND PACITA
VILLANUEVA.
4. WHETHER THE COURT OF APPEALS ERRED IN NOT DECLARING THAT
THE ACTION FOR RECONVEYANCE OVER LOT NO. 152 IS ALREADY BARRED
BY PRESCRIPTION OR LACHES.
3

The Ruling of the Court
The petition lacks merit.
First I ssue: On the Alleged Failure
To Claim that the Properties are Conjugal
Petitioners contention that Eusebias complaint failed to state that the subject properties are
conjugal is absolutely without basis. A cursory reading of the complaint readily shows that the
complaint maintains that the subject properties are conjugal.
4
The first sentence of the second
paragraph of the complaint states:
2. The plaintiff Eusebia Retuya and defendant Nicolas Retuya are husband and wife
and conjugal owners of real properties and all improvements thereon situated in
Mandaue City and Consolacion, Cebu more particularly described as follows: (Emphasis
added)
The same claim is restated and repleaded throughout the complaint. Petitioners should know
better than to clutter their appeal with useless arguments such as this.
The other issues petitioners raise contest in essence the finding that the subject properties are
conjugal in nature. Apart from this, the only other issue raised is whether prescription or laches
bars Eusebias complaint. We shall resolve first the issue of prescription and laches.
Second I ssue: Prescription and Laches
We agree with the Court of Appeals observation that while petitioners did raise the issue of
prescription and laches in their Answer,
5
they failed to have the same included in the pre-trial
order for consideration during the trial. Now, petitioners wish to raise the issue on appeal by
relying on Section 1, Rule 9 of the Rules of Court, which provides:
Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim.
Petitioners are mistaken.
The determination of issues during the pre-trial conference bars the consideration of other
questions, whether during trial or on appeal.
6
Section 1 of Rule 9 covers situations where a
defense or objection is not raised in a motion to dismiss or an answer. What we have before us is
the exact opposite. Here, petitioners in fact raised in their answer the defense of prescription and
laches. However, despite raising the defense of prescription and laches in their answer,
petitioners failed to include this defense among the issues for consideration during the trial. The
non-inclusion of this defense in the pre-trial order barred its consideration during the trial.
Clearly, Section 1 of Rule 9 does not apply to the present case.
Pre-trial is primarily intended to insure that the parties properly raise all issues necessary to
dispose of a case.
7
The parties must disclose during pre-trial all issues they intend to raise during
the trial, except those involving privileged or impeaching matters.
8
Although a pre-trial order is
not meant to catalogue each issue that the parties may take up during the trial, issues not included
in the pre-trial order may be considered only if they are impliedly included in the issues raised or
inferable from the issues raised by necessary implication.
9
The basis of the rule is simple.
Petitioners are bound by the delimitation of the issues during the pre-trial because they
themselves agreed to the same.
10

Petitioners argue that in past instances we have reviewed matters raised for the first time during
appeal. True, but we have done so only by way of exception involving clearly meritorious
situations.
11
This case does not fall under any of those exceptions. The fact that the case
proceeded to trial, with the petitioners actively participating without raising the necessary
objection, all the more requires that they be bound by the stipulations they made at the pre-
trial.
12
Petitioners were well aware that they raised the defense of prescription and laches since
they included it in their answer. However, for reasons of their own, they did not include this
defense in the pre-trial.
Able counsels represented both parties. We see no claim that either counsel erred or was
negligent. This could only mean that petitioners counsel chose to waive, or did not consider
important, the defense of prescription and laches. Petitioners are bound by their counsels choice.
Other than arguing that it is allowable to raise the issue for the first time on appeal, we have no
explanation from petitioners why they suddenly decided to change their mind. Parties are not
allowed to flip-flop. Courts have neither the time nor the resources to accommodate parties who
choose to go to trial haphazardly. Moreover, it would be grossly unfair to allow petitioners the
luxury of changing their mind to the detriment of private respondents at this late stage. To put it
simply, since petitioners did not raise the defense of prescription and laches during the trial, they
cannot now raise this defense for the first time on appeal.
13

Third I ssue: Whether the Subject Properties Are Conjugal
We proceed to the crux of this petition.
We reiterate the basic rule that a petition for review should only cover questions of
law.
14
Questions of fact are not reviewable. The exceptions apply only in the presence of
extremely meritorious circumstances.
15
None exists in this case. We note with disfavor that most
of the issues raised in this petition are factual. We caution the petitioners that this practice of
deluging the Court with factual issues in defiance of well-settled rule, in the hope of having them
reviewed, is unacceptable.
The only issue proper for resolution is the question of whether the subject properties are
conjugal. Petitioners claim that the subject properties
16
are exclusive properties of Nicolas except
for Lot No. 152, which they claim is Pacitas exclusive property. This issue is easily resolved.
The Family Code provisions on conjugal partnerships govern the property relations between
Nicolas and Eusebia even if they were married before the effectivity of Family Code.
17
Article
105
18
of the Family Code explicitly mandates that the Family Code shall apply to conjugal
partnerships established before the Family Code without prejudice to vested rights already
acquired under the Civil Code or other laws. Thus, under the Family Code, if the properties are
acquired during the marriage, the presumption is that they are conjugal.
19
The burden of proof is
on the party claiming that they are not conjugal.
20
This is counter-balanced by the requirement
that the properties must first be proven to have been acquired during the marriage before they are
presumed conjugal.
21
Petitioners argue that Eusebia failed to prove this pre-requisite. We
disagree.
The question of whether the subject properties were acquired during the marriage of Nicolas and
Eusebia is a factual issue. Both the trial and appellate courts agreed that the subject properties
were in fact acquired during the marriage of Nicolas and Eusebia.
22
The tax
declarations
23
covering the subject properties, along with the unrebutted testimony of Eusebias
witnesses, establish this fact. We give due deference to factual findings of trial
courts,
24
especially when affirmed by the appellate court. A reversal of this finding can only
occur if petitioners show sufficient reason for us to doubt its correctness. Petitioners in the
present case have not.
Moreover, on whether Lot No. 152 is conjugal or not, the answer came from petitioners
themselves. Nicolas and Eusebia were married on 7 October 1926. Nicolas and Pacita started
cohabiting in 1936. Eusebia died on 23 November 1996. Pacita and Nicolas were married on 16
December 1996. Petitioners themselves admit that Lot No. 152 was purchased on 4 October
1957.
25
The date of acquisition of Lot No. 152 is clearly during the marriage of Nicolas and
Eusebia.
Since the subject properties, including Lot No. 152, were acquired during the marriage of
Nicolas and Eusebia, the presumption under Article 116 of the Family Code is that all these are
conjugal properties of Nicolas and Eusebia. The burden is on petitioners to prove that the subject
properties are not conjugal. The presumption in Article 116, which subsists "unless the contrary
is proved," stands as an obstacle to any claim the petitioners may have. The burden of proving
that a property is exclusive property of a spouse rests on the party asserting it and the evidence
required must be clear and convincing.
26
Petitioners failed to meet this standard.
Petitioners point out that the deed of sale, the transfer certificate of title and the tax declaration of
Lot No. 152 are all in the name of Pacita. Petitioners maintain that this can only mean that Pacita
is the real owner of Lot No. 152. We disagree. The totality of the evidence reveals that this was
merely just one of the several schemes Nicolas employed to deprive Eusebia of their conjugal
property. Ironically, petitioners themselves submitted in evidence a decision rendered by the
Regional Trial Court of Cebu, Branch IV, in Civil Case No. R-9602
27
involving the acquisition
of Lot No. 152.
The decision in Civil Case No. R-9602 stated that Tranquiliana Marababol Remulta testified that
the one who offered to buy the lot from her was none other than Nicolas Retuya.
28
Tranquiliana
narrated that at first she refused to sign the deed of sale because the buyer placed in the deed was
Pacita and not Nicolas, her understanding being that the buyer was Nicolas. We find that the trial
court in the present case correctly took into consideration the decision in Civil Case No. R-
9602.
29
Considering that the decision in Civil Case No. R-9602 has become final and executory,
its findings of fact involving the sale of Lot No. 152 to Nicolas and Pacita are conclusive and
binding on petitioners who introduced in evidence the decision.
Petitioners also point out that all the other tax declarations presented before the trial court are in
the name of Nicolas alone. Petitioners argue that this serves as proof of Nicolas exclusive
ownership of these properties. Petitioners are mistaken. The tax declarations are not sufficient
proof to overcome the presumption under Article 116 of the Family Code. All property acquired
by the spouses during the marriage, regardless in whose name the property is registered, is
presumed conjugal unless proved otherwise.
30
The presumption is not rebutted by the mere fact
that the certificate of title of the property or the tax declaration is in the name of one of the
spouses only.
31
Article 116 of the Family Code expressly provides that the presumption remains
even if the property is "registered in the name of one or both of the spouses."
In some of the documents that petitioners presented, Nicolas misrepresented his civil status by
claiming that he was single. Petitioners point to this as proof of Nicolas desire to exclude
Eusebia from the properties covered by the documents.
32
Petitioners further claim that this
supports their stand that the subject properties are not conjugal. This argument is baseless.
Whether a property is conjugal or not is determined by law and not by the will of one of the
spouses. No unilateral declaration by one spouse can change the character of conjugal property.
The clear intent of Nicolas in placing his status as single is to exclude Eusebia from her lawful
share in the conjugal property. The law does not allow this.
Petitioners point out that Pacita had the means to buy Lot No. 152. Even if Pacita had the
financial capacity, this does not prove that Pacita bought Lot No. 152 with her own money. To
rebut the presumption that Lot No. 152 is conjugal, petitioners must prove that Pacita used her
own money to pay for Lot No. 152. Petitioners failed to prove this.
Petitioners further argue that since Nicolas and Pacita were already cohabiting when Lot No. 152
was acquired, the lot cannot be deemed conjugal property of Nicolas and Eusebia. Petitioners
keep belaboring this point in their petition and memorandum.
Petitioners argument is flawed.
The cohabitation of a spouse with another person, even for a long period, does not sever the tie
of a subsisting previous marriage.
33
Otherwise, the law would be giving a stamp of approval to
an act that is both illegal and immoral. What petitioners fail to grasp is that Nicolas and Pacitas
cohabitation cannot work to the detriment of Eusebia, the legal spouse. The marriage of Nicolas
and Eusebia continued to exist regardless of the fact that Nicolas was already living with Pacita.
Hence, all property acquired from 7 October 1926, the date of Nicolas and Eusebias marriage,
until 23 November 1996, the date of Eusebias death, are still presumed conjugal. Petitioners
have neither claimed nor proved that any of the subject properties was acquired outside or
beyond this period.
Finally, petitioners reliance on Article 148 of the Family Code
34
is misplaced. A reading of
Article 148 readily shows that there must be proof of "actual joint contribution" by both the live-
in partners before the property becomes co-owned by them in proportion to their contribution.
The presumption of equality of contribution arises only in the absence of proof of
their proportionate contributions, subject to the condition that actual joint contribution is
proven first. Simply put, proof of actual contribution by both parties is required, otherwise there
is no co-ownership and no presumption of equal sharing. Petitioners failed to show proof of
actual contribution by Pacita in the acquisition of Lot No. 152. In short, petitioners failed to
prove that Pacita bought Lot No. 152 with her own money, or that she actually contributed her
own money to acquire it.
WHEREFORE, we DENY the petition. The Decision of the Court of Appeals dated 31 January
2000 in CA-G.R. CV No. 46716 is AFFIRMED.
SO ORDERED.
Davide, Jr., Panganiban, Ynares-Santiago, and Azcuna, JJ., concur.
















Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 156357 February 18, 2005
ENGR. GABRIEL V. LEYSON, DR. JOSEFINA L. POBLETE, FE LEYSON QUA,
CARIDAD V. LEYSON and ESPERANZA V. LEYSON, petitioners,
vs.
NACIANSINO BONTUYAN and MAURECIA B. BONTUYAN, respondents.
D E C I S I O N
CALLEJO, SR., J .:
This is a petition for review on certiorari of the Decision
1
of the Court of Appeals (CA), as well
as its Resolution in CA-G.R. CV No. 64471 denying the motion for reconsideration of the said
decision.
The Antecedents
Calixto Gabud was the owner of a parcel of land located in Barangay Adlawon, Mabolo, Cebu
City, which was declared for taxation purposes under Tax Declaration (T.D.) No. 03276-R in
1945
2
with the following boundaries:
North Calixto Gabud East Marcelo Cosido
South Pedro Bontuyan West Asuncion Adulfo.
3

Because of the construction of a provincial road, the property was divided into two parcels of
land covered by T.D. No. 03276-R and T.D. No. 01979-R. On February 14, 1948, Gabud
executed a Deed of Absolute Sale
4
over the property covered by T.D. No. 03276-R, as well as
the other lot covered by T.D. No. 01979-R, in favor of Protacio Tabal, married to Leodegaria
Bontuyan. On the basis of the said deed, T.D. No. 03276-R was cancelled by T.D. No. 13615-R
in the name of Protacio Tabal effective 1949.
5
On January 5, 1959, Tabal executed a Deed of
Sale
6
over the property covered by T.D. No. 13615-R in favor of Simeon Noval, married to
Vivencia Bontuyan, daughter of Gregorio Bontuyan, for P800.00. T.D. No. 13615-R was
cancelled by T.D. No. 100356 in the names of the spouses Noval.
7
Gregorio Bontuyan received a
copy of the said tax declaration in behalf of the spouses Noval.
8
The latter tax declaration was
then cancelled by T.D. No. 008876 under the same names effective 1967.
9

Subsequently, the property was surveyed by Cadastral Land Surveyor Mauro U. Gabriel on
January 22, 1964. The plan survey was approved on September 30, 1966.
10
The property covered
by T.D. No. 008876 was identified as Lot No. 17150 of Cebu Cadastre No. 12, while the
property covered by T.D. No. 01979-R was identified as Lot No. 13272. On May 22, 1968, the
spouses Noval executed a Deed of Absolute Sale
11
over the two lots covered by T.D. No. 008876
in favor of Lourdes V. Leyson for P4,000.00. Lourdes Leyson took possession of the property
and had it fenced. Despite the said sale, T.D. No. 008876 was cancelled by T.D. No. 21267
effective 1974.
12
Thereafter, T.D. No. 21267 was cancelled by T.D. No. 23821
13
which, in turn,
was cancelled by T.D. No. 01-17455 effective 1980.
14
In 1989, the latter was cancelled by a new
tax declaration, T.D. No. 01-001-00646. All these tax declarations were in the names of the
spouses Noval.
15

Meanwhile, Lourdes Leyson paid for the realty taxes over the property. However, the tax
declaration issued thereon continued to be under the names of the spouses Noval.
16

Despite his knowledge that the property had been purchased by his son-in-law and daughter, the
spouses Noval, Gregorio Bontuyan, who was then 91 years old, filed an application with the
Bureau of Lands for a free patent over Lot No. 17150 on December 4, 1968. He alleged therein
that the property was public land and was neither claimed nor occupied by any person,
17
and that
he first entered upon and began cultivating the same in 1918. Thus, on November 19, 1971, Free
Patent No. 510463 was issued over Lot No. 17150 in his favor, on the basis of which Original
Certificate of Title (OCT) No. 0-1619 was issued to and under his name on March 21,
1974.
18
Another parcel of land, Lot No. 13272, was also registered under the name of Gregorio
Bontuyan under OCT No. 0-1618. He then declared Lot No. 17150 for taxation purposes under
T.D. No. 13596 effective 1974.
19
On February 20, 1976, Gregorio Bontuyan executed a Deed of
Absolute Sale
20
over Lot No. 17150 in favor of his son, Naciansino Bontuyan.
On April 28, 1980, Gregorio Bontuyan, then 103 years old, executed another Deed of Absolute
Sale
21
over Lot Nos. 13272 and 17150, covered by OCT No. 0-1618 and OCT No. 0-1619,
respectively, in favor of Naciansino Bontuyan for P3,000.00. On the basis of the said deed, OCT
No. 0-1619 was cancelled by TCT No. 1392 in the name of Naciansino Bontuyan on December
2, 1980.
22
Gregorio Bontuyan died intestate on April 12, 1981.
23

On March 30, 1981, the spouses Bontuyan executed a Real Estate Mortgage over Lot No. 17150
covered by OCT No. 0-1619 in favor of the Development Bank of the Philippines (DBP) as
security for a loan of P11,200.00.
24
Naciansino Bontuyan had earlier executed an affidavit that
the property was not tenanted. Shortly thereafter, the spouses Bontuyan left the Philippines and
resided in the United States. Meanwhile, Lourdes Leyson died intestate.
The spouses Bontuyan returned to the Philippines in 1988 to redeem the property from DBP only
to discover that there were tenants living on the property installed by Engineer Gabriel Leyson,
one of the late Lourdes Leysons children. Despite being informed that the said spouses owned
the property, the tenants refused to vacate the same. The tenants also refused to deliver to the
spouses the produce from the property. The spouses Bontuyan redeemed the property from DBP
on September 22, 1989.
On February 12, 1993, Jose Bontuyan, Nieves Atilano, Pacifico Bontuyan, Vivencia Noval and
Naciansino Bontuyan, the surviving heirs of Gregorio Bontuyan, executed an Extrajudicial
Settlement
25
of the latters estate and adjudicated Lot No. 13272 in favor of Naciansino. Based
on the said deed, T.D. No. 01-001-00877 was issued to and under the name of Naciansino over
the said property starting 1994.
On June 24, 1993, Naciansino Bontuyan, through counsel, wrote Engr. Gabriel Leyson,
demanding that he be furnished with all the documents evidencing his ownership over the two
lots, Lots Nos. 17150 and 13272.
26
Engr. Leyson ignored the letter.
The spouses Bontuyan, thereafter, filed a complaint against Engr. Leyson in the Regional Trial
Court (RTC) of Cebu City for quieting of title and damages. They alleged that they were the
lawful owners of the two lots and when they discovered, upon their return from the United
States, that the property was occupied and cultivated by the tenants of Engr. Leyson, they
demanded the production of documents evidencing the latters ownership of the property, which
was ignored.
The spouses Bontuyan prayed that, after due proceedings, judgment be rendered in their favor,
thus:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court to
render judgment against the defendant and in favor of the plaintiffs, to wit:
(a) Confirming the ownership of the plaintiffs on the lots in question;
(b) Ordering defendant to pay the plaintiffs the amount of Twenty Thousand Pesos
(P20,000.00) as the share of the plaintiffs of the produce of the lots in question;
(c) Ordering defendant to pay plaintiffs the sum of P50,000.00 as reimbursement of
attorneys fees and the further sum of P500.00 as appearance fee every time the case is
called for trial;
(d) Ordering the defendant to pay plaintiffs the sum of P50,000.00 as moral damages and
exemplary damages may be fixed by the court;
(e) Ordering defendant to pay plaintiffs the sum of P5,000.00 as actual expenses for the
preparation and filing of the complaint;
(f) Ordering defendant to pay the costs; and
(g) Granting to plaintiffs such other reliefs and remedies just and equitable in the
premises.
27

In his answer to the complaint, Engr. Leyson averred, by way of affirmative defenses, that the
two lots were but portions of a parcel of land owned by Calixto Gabud, covered by T.D. No.
03276-R, and was subdivided into two parcels of land because of the construction of a provincial
road on the property; Gabud later sold the two lots to Protacio Tabal, who sold the same to
Simeon Noval, married to Vivencia Bontuyan, one of the children of Gregorio Bontuyan;
Simeon Noval later sold the property to Lourdes Leyson on May 22, 1968 who, forthwith, took
possession thereof as owner; and Gregorio Bontuyan was issued a free patent over the property
through fraud. Engr. Leyson concluded that the said patent, as well as OCT No. 0-1619 and TCT
No. 1392, were null and void and that the plaintiffs acquired no title over the property.
Engr. Leyson interposed a counterclaim against the spouses Bontuyan and repleaded as an
integral part thereof all the material allegations in his affirmative defense. He prayed that, after
due proceedings, judgment be rendered in his favor, thus:
a) Dismissing Plaintiffs complaint for failure to include indispensable parties;
b) Declaring the Defendant and his four (4) sisters, namely, Dr. Josefina L. Poblete, Mrs.
Fe L. Qua, Esperanza Leyson and Caridad Leyson as the true and legal owners and
possessors of the parcels of land in issue;
c) Declaring OCT No. 0-1619 in the name of Gregorio Bontuyan and TCT No. 1392 in
the name of Naciansino Bontuyan null and void and to order the Register of Deeds to
cancel the same and issue new ones in favor of the Defendant Gabriel V. Leyson and his
four (4) sisters, namely: Dr. Josefina L. Poblete, Mrs. Fe L. Qua, Esperanza V. Leyson
and Caridad V. Leyson;
d) And on the Counterclaim, to order Plaintiffs to pay the Defendant the following sums:
d-1) P50,000.00 as attorneys fees and appearance fee of P1,000.00 per hearing;
d-2) P500,000.00 as moral damages;
d-3) P20,000.00 as exemplary damages;
d-4) P10,000.00 as expenses of litigation.
Defendant further prays for such other reliefs just and equitable in the premises.
28

In due course, the other children of Lourdes Leyson, namely, Dr. Josefina L. Poblete, Fe Leyson
Qua, Caridad V. Leyson and Esperanza V. Leyson, were allowed to intervene as defendants.
They filed their answer-in-intervention wherein they adopted, in their counterclaim, paragraphs 7
to 26 of the answer of their brother, Engr. Leyson, the original defendant. They prayed that, after
due hearing, judgment be rendered in their favor as follows:
Wherefore, this Honorable Court is prayed to render judgment in favor of the Defendant and the
Defendants-in-Intervention and against the Plaintiffs as follows:
a) Promissory Plaintiffs complaint for failure to include indispensable parties and for
lack of cause of action;
b) Declaring the Defendant and his four (4) sisters, namely: Dr. Josefina L. Poblete; Mrs.
Fe L. Qua, Esperanza Leyson and Caridad Leyson as the true and legal owners and
possessors of the parcels of land in issue;
c) Declaring OCT No. 0-1619 in the name of Gregorio Bontuyan and TCT No. 1392 in
the name of Naciansino Bontuyan null and void and to order the Register of Deeds to
cancel the same and issue new ones in favor of the Defendant Gabriel V. Leyson and his
four (4) sisters, namely: Dr. Josefina L. Poblete, Mrs. Fe L. Qua, Esperanza V. Leyson
and Caridad V. Leyson;
d) On the Counterclaim, Plaintiffs should pay the Defendants the following sums:
d-1) P50,000.00 as attorneys fees and appearance fee of P1,000.00 per hearing;
d-2) P500,000.00 as moral damages to each Intervenor;
d-3) P50,000.00 as exemplary damages;
d-4) P15,000.00 as expenses of litigation.
Defendant further prays for such other reliefs just and equitable in the premises.
29

In their reply, the spouses Bontuyan averred that the counterclaim of the defendants for the
nullity of TCT No. 1392 and the reconveyance of the property was barred by laches and
prescription.
On January 21, 1999, the trial court rendered judgment in favor of the Leyson heirs and against
the spouses Bontuyan. The fallo of the decision reads:
WHEREFORE, foregoing considered judgment is hereby rendered dismissing plaintiffs
complaint for dearth of evidence declaring the defendant and the intervenors as the true and legal
owners and possessors of the subject parcels of land; declaring OCT No. 0-1619 in the name of
Gregorio Bontuyan and TCT No. 1392 in the name of Naciansino Bontuyan null and void;
ordering the Register of Deeds to cancel OCT No. 0-1619 and TCT No. 1392 and issue new ones
in favor of defendant Gabriel Leyson and intervenors Josefina Poblete, Fe Qua, Esperanza
Leyson and Caridad Leyson; ordering plaintiff to pay defendant and intervenors the following:
a) P50,000.00 attorneys fees;
b) 1,000.00 per appearance;
c) 100,000.00 moral damages for defendant and intervenors;
d) 10,000.00 exemplary damages; and
e) 10,000.00 litigation expenses.
SO ORDERED.
30

The trial court held that Simeon Noval had sold the lots to Lourdes Leyson on May 22, 1968,
who thus acquired title over the property.
The spouses Bontuyan appealed the decision to the CA which affirmed, with modification, the
decision of the RTC. The appellate court held that the Leyson heirs were the owners of Lot No.
13273, while the spouses Bontuyan were the owners of Lot No. 17150. The CA ruled that the
answer of the Leyson heirs to the complaint constituted a collateral attack of OCT No. 0-1619
which was proscribed by law. The Leyson heirs filed a motion for reconsideration of the decision
insofar as Lot No. 17150 was concerned, contending that their counterclaim for the nullification
of OCT No. 0-1619 contained in their answer constituted a direct attack on the said title. The CA
denied the motion.
The Leyson heirs then filed a petition for review with this Court and made the following
assignments of error:
First Assignment of Error
THE HONORABLE COURT OF APPEALS COMMITTED ERROR WHEN IT RULED THAT
THE NULLITY OR THE VALIDITY OF OCT NO. 0-1619 CANNOT BE RULED UPON IN
THESE PROCEEDINGS BROUGHT BY THE RESPONDENTS FOR THE QUIETING OF
THEIR TITLE.
Second Assignment of Error
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT
PETITIONERS ANSWER WITH COUNTERCLAIM, PRAYING FOR THE
CANCELLATION OF PLAINTIFFS TORRENS CERTIFICATE IS A MERE COLLATERAL
ATTACK ON THE TITLE.
31

Third Assignment of Error
THE APPELLATE COURT GRAVELY ERRED WHEN IT MODIFIED THE DECISION OF
THE REGIONAL TRIAL COURT DATED JANUARY 21, 1999 BY RULING THAT
PETITIONERS ARE DECLARED THE OWNERS OF LOT 13273 BUT RESPONDENTS
ARE DECLARED THE OWNERS OF LOT 17150 UNDER OCT NO. 0-1619 AND
PRESENTLY COVERED BY TCT NO. 1392 IN THE NAME OF NACIANSINO
BONTUYAN, DESPITE THE APPELLATE COURTS AFFIRMING THE FINDINGS OF
THE TRIAL COURT THAT FRAUD WAS COMMITTED BY GREGORIO BONTUYAN
(RESPONDENTS PREDECESSOR-IN-INTEREST) IN ACQUIRING TITLE OVER THE
SUBJECT PROPERTIES.
32

Fourth Assignment of Error
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT
RECONVEYANCE OF TITLE OF LOT 17150 COVERED BY OCT NO. 0-1619 AND
PRESENTLY COVERED BY TCT NO. 1392, IN FAVOR OF PETITIONERS HAD
PRESCRIBED.
33

Fifth Assignment of Error
THE APPELLATE COURT GRAVELY ERRED IN NOT GRANTING ATTORNEYS FEES
AND APPEARANCE FEES DESPITE RESPONDENTS FRAUD IN ACQUIRING TITLE
OVER THE SUBJECT PROPERTIES.
34

On the first two assignments of errors, the petitioners aver that the counterclaim in their answer
to the complaint constituted a direct attack of the validity of OCT No. 0-1619. They maintain
that the appellate courts reliance on the ruling of this Court in Cimafrancia v. Intermediate
Appellate Court
35
was misplaced. They assert that what is controlling is the ruling in Pro Line
Sports Center, Inc. v. Court of Appeals
36
wherein this Court held that the counterclaim of the
petitioners therein constituted a direct attack on a certificate of title. The petitioners, likewise,
cited Section 55 of Act No. 496, as amended, to buttress their stance. They plead that their
answer to the complaint should be liberally construed so as to afford them substantial justice.
On the other hand, the respondents assert that the decision of the CA is correct. They claim that
Lot No. 17150 was still public land when Lourdes Leyson purchased the same from Simeon
Noval, and that the property became private land only when Free Patent No. 510463 was issued
to and under the name of Gregorio Bontuyan.
We agree with the contention of the petitioners that the CA erred in not nullifying OCT No. 0-
1619 and TCT No. 1392 and ordering the respondents to reconvey the property covered by the
said title to the petitioners.
The respondents, as plaintiffs in the court a quo, were burdened to prove their claim in their
complaint that Gregorio Bontuyan was the owner of Lot No. 17150 and that they acquired the
property in good faith and for valuable consideration from him.
37
However, the respondents
failed to discharge this burden. The evidence on record shows that Calixto Gabud sold the
property to Protacio Tabal on February 14, 1948,
38
and that the latter sold the property to Simeon
Noval on January 5, 1959.
39
Simeon Noval then sold the property to Lourdes Leyson on May 22,
1968.
40
The respondents failed to adduce any evidence to prove that Lourdes Leyson, or even
Simeon Noval, sold the property to Gregorio Bontuyan, or to any of the respondents for that
matter. Since Gregorio Bontuyan was not the owner of the property, he could not have sold the
same to his son Naciansino Bontuyan and the latters wife, the respondents herein. As the Latin
adage goes: NEMO DAT QUOD NON HABET. Gregorio Bontuyan could not feign ignorance of
Simeon Novals ownership of the property, considering that the latter was his son-in-law, and
that he (Gregorio Bontuyan) was the one who received the owners copy of T.D. No. 100356
covering the property under the name of Simeon Noval.
41
At the dorsal portion of the said tax
declaration, there was even an annotation that the property was transferred to Simeon Noval as
shown by the deed of sale executed before Notary Public Gregorio A. Uriarte who notarized the
deed of sale over the property executed by Protacio Tabal in favor of Simeon Noval on January
5, 1959.
42
We note that the respondents failed to adduce in evidence any receipts of real property
tax payments made on the property under their names, which would have fortified their claim
that they were the owners of the property. We agree with the findings of the CA, thus:
This case involves two parcels of land Lot 17150 and Lot 13273. Lot 17150 is registered under
the Torrens System under the names of plaintiffs-appellants, while Lot 13273 remained to be
unregistered.
In this case, records show that defendant-appellee and intervenors-appellees are the true owners
of the subject lots. They have in their favor tax receipts covering the subject lots issued since
1945.
While, indeed, tax receipts and declarations are not incontrovertible evidence of ownership, such,
however, if accompanied with open, adverse, continuous possession in the concept of an owner,
as in this case, constitute evidence of great weight that person under whose name the real taxes
were declared has a claim of right over the land.
Further, defendant-appellee and intervenors-appellees presented before the trial court the Deed of
Absolute Sale dated February 14, 1948, executed by Calixto Gabud, conveying the subject lots in
favor of Protacio Tabal. The deed is a notarial document.
Likewise presented is the Deed of Absolute Sale of the subject lots dated January 5, 1959,
executed by Protacio Tabal in favor of spouses Simeon Noval and Vivencia Bontuyan. The
document is, likewise, a notarial document.
Defendant-appellee and intervenors-appellees also presented the Deed of Absolute Sale of the
subject lots dated May 22, 1968, executed by spouses Simeon Noval and Vivencia Bontuyan in
favor of Lourdes Leyson. The deed is a notarial document.
A notarial document is evidence of the facts in clear, unequivocal manner therein expressed. It
has in its favor the presumption of regularity. It is admissible in evidence without necessity of
preliminary proof as to its authenticity and due execution.
There exist (sic) no trace of irregularity in the transfers of ownership from the original owner,
Calixto Gabud, to defendant-appellee and intervenors-appellees.
Plaintiffs-appellants, on the other hand, offered no convincing evidence as to how their
predecessor-in-interest, Gregorio Bontuyan, acquired the subject lots. Plaintiffs-appellants
presented only the Free Patent and OCT No. 0-1619, covering Lot No. 17150, issued in the name
of Gregorio Bontuyan.
As to Lot No. 13273, We find no sufficient reason why defendant-appellee and intervenors-
appellees should be disturbed in their ownership and possession of the same.
43

As copiously shown by the record, Gregorio Bontuyan filed his application for a free patent with
the Bureau of Lands on December 4, 1968 in gross bad faith, thereby defrauding Lourdes Leyson
of the said property through deceit. Gregorio Bontuyan falsely declared in the said application:
(a) that he entered upon and cultivated the property since 1918 and that the property was not
claimed or occupied by any person; and (b) that Lot No. 17150 was located in Sirao, Cebu City,
when, in fact, the property was located in Adlawon, Cebu City. Lourdes Leyson was not notified
of the said application and failed to file any opposition thereto. Gregorio Bontuyan was then able
to secure Free Patent No. 510463 on November 19, 1971 and OCT No. 0-1619 on March 21,
1974. It appears in the said title that the propertys location was indicated as "Sirao, Cebu
City."
44
Indeed, the CA declared that Gregorio Bontuyan had acquired title to the property
through fraud:
However, as to Lot No. 17150, We find that despite the fraud committed by Gregorio Bontuyan
(plaintiffs-appellants predecessor-in-interest) in acquiring his title over the said lot, ownership
over the said lot should be adjudged in favor of plaintiffs-appellants.
Records, indeed, show that, at the time when Gregorio Bontuyan applied for Free Patent,
Gregorio Bontuyan was living with his daughter, Vivencia Bontuyan (defendant-appellees
predecessor-in-interest). Thus, Gregorio Bontuyan must have known that at the time when he
applied for free patent on December 1968, the subject lots were already sold on May 1968 by his
daughter Vivencia Bontuyan in favor of Lourdes Leyson, predecessor-in-interest of defendants-
appellees.
Moreover, records further show that Gregorio Bontuyan sold twice Lot [No.] 17150 to plaintiffs-
appellants. The first was in 1976 and the other was in 1980. Plaintiffs-appellants offered no
reasonable explanation why Gregorio Bontuyan have (sic) to sell twice Lot No. 17150 in favor of
plaintiffs-appellants.
As found by the trial court, these are badges of bad faith which affect the validity of the title of
Gregorio Bontuyan over the subject lots.
We are aware that the torrens system does not create or vest title. It only confirms and records
title already existing and vested. It does not protect a usurper from the true owner. It cannot be a
shield for the commission of fraud. It does not permit one to enrich himself at the expense of
another. Where one does not have any rightful claim over a real property, the torrens system of
registration can confirm or record nothing.
45

The findings of the CA affirmed the findings of the trial court in its decision, thus:
After having thoroughly analyzed the records and the evidences adduced during the trial of this
case, this Court is convinced and sincerely believes that the lots in question were originally
owned by Calixto Gabud as evidenced by T.D. [No.] 03276R marked as Exh. "1." In 1945, this
consisted of only one lot in Adlawon, Cebu City, as there was no provincial road yet. However in
1948, the said parcel of land was divided into two because a provincial road was constructed
passing through it. Hence, T.D. [No.] 03276R and T.D. [No.] 01979-R were issued to Calixto
Gabud. On February 16, 1948, Calixto Gabud sold the said parcels of land to spouses Protacio
Tabal and Ludegaria (sic) Bontuyan as evidenced by an Absolute Deed of Sale, Exh. "2." On
January 5, 1959, spouses Protacio Tabal and Ludegaria (sic) Bontuyan, in turn, sold the same
parcels of land to spouses Simeon Noval and Vivencia Bontuyan as evidenced by a Deed of Sale,
Exh. "4." It is noteworthy to mention at this point in time that Vivencia Bontuyan is one of the
daughters of Gregorio Bontuyan, the father of herein plaintiff Naciansino Bontuyan. In May
1968, spouses Simeon Noval and Vivencia Bontuyan sold the subject parcels of land to Lourdes
vs. (sic) Leyson, the mother of herein defendant as evidenced by a Deed of Sale marked as Exh.
"6." It is quite perplexing for the court to imagine that Gregorio Bontuyan, father of herein
plaintiff, who was then residing with spouses Simeon Noval and Vivencia Bontuyan at 179 C
San Jose dela Montaa, Mabolo, Cebu City, as reflected in his application for Free Patent (Exhs.
"8" & "26") dated December 4, 1968 was unaware of the sale of the subject parcels of land made
by his daughter Vivencia Bontuyan and spouse Simeon Noval to Lourdes Leyson. It is evident
that, after the sale from spouses Noval to Lourdes Leyson in May 1968, Gregorio Bontuyan
applied for Free Patent for the same parcels of land in December 1968 claiming to have
cultivated the land since 1918, stating therein the location as Sirao and not Adlawon which is the
true and correct location. Sirao and Adlawon are two different barangays which are not even
adjacent to each other. In fact, as borne out by Exh. "25," it is separated by Barangay Guba. In
1974, Free Patent No. 510463 and OCT# 0-1619 was issued to Gregorio Bontuyan covering
subject property, the location of which is in Barangay Sirao in consonance to his application.
Gregorio Bontuyans application for Free Patent over subject parcels of land had raised in the
mind of this Court reasonable badges of bad faith on his part as the subject parcels of land were
already sold by his daughter Vivencia Bontuyan and spouse Simeon Noval to Lourdes Leyson.
Another badge of bad faith is raised in the mind of this Court when he (Gregorio) sold the
subject parcels of land twice to his son Naciansino Bontuyan in 1976 and 1980, respectively,
wherein both Deeds of Sale were notarized by different Notary Publics, (Exhs. "10" & "16").
46

Considering that Lourdes Leyson was in actual possession of the property, the respondents
cannot, likewise, claim that they were in good faith when Gregorio Bontuyan allegedly sold the
property to them on April 28, 1980.1awphi1.nt
Anent the third and fourth assignments of error, we do not agree with the ruling of the CA that
the petitioners failed to directly attack the validity of OCT No. 0-1619. The CA failed to consider
the fact that, in their respective answers to the complaint, the petitioners inserted therein a
counterclaim wherein they repleaded all the material allegations in their affirmative defenses,
that Gregorio Bontuyan secured OCT No. 0-1619 through fraud and deceit and prayed for the
nullification thereof.
While Section 47 of Act No. 496 provides that a certificate of title shall not be subject to
collateral attack, the rule is that an action is an attack on a title if its object is to nullify the same,
and thus challenge the proceeding pursuant to which the title was decreed.l^vvphi1.net The attack
is considered direct when the object of an action is to annul or set aside such proceeding, or
enjoin its enforcement. On the other hand, an attack is indirect or collateral when, in an action to
obtain a different relief, an attack on the proceeding is nevertheless made as an incident
thereof.
47
Such action to attack a certificate of title may be an original action or a counterclaim in
which a certificate of title is assailed as void. A counterclaim is considered a new suit in which
the defendant is the plaintiff and the plaintiff in the complaint becomes the defendant. It stands
on the same footing and is to be tested by the same rules as if it were an independent
action.
48
Furthermore, since all the essential facts of the case for the determination of the titles
validity are now before the Court, to require the party to institute cancellation proceedings would
be pointlessly circuitous and against the best interest of justice.
49

The CA, likewise, erred in holding that the action of the petitioners to assail OCT No. 0-1619
and TCT No. 1392 and for the reconveyance of the property covered by the said title had already
prescribed when they filed their answer to the complaint.
Case law has it that an action for reconveyance prescribes in ten years, the point of reference
being the date of registration of the deed or the date of issuance of the certificate of title over the
property. In an action for reconveyance, the decree of registration is highly regarded as
incontrovertible. What is sought instead is the transfer of the property or its title, which has been
wrongfully or erroneously registered in another persons name, to its rightful or legal owner, or
to one who has a better right.
50

However, in a series of cases, this Court declared that an action for reconveyance based on fraud
is imprescriptible where the plaintiff is in possession of the property subject of the acts. In Vda.
de Cabrera v. Court of Appeals,
51
the Court held:
... [A]n action for reconveyance of a parcel of land based on implied or constructive trust
prescribes in ten years, the point of reference being the date of registration of the deed or the date
of the issuance of the certificate of title over the property, but this rule applies only when the
plaintiff or the person enforcing the trust is not in possession of the property, since if a person
claiming to be the owner thereof is in actual possession of the property, as the defendants are in
the instant case, the right to seek reconveyance, which in effect seeks to quiet title to the
property, does not prescribe. The reason for this is that one who is in actual possession of a piece
of land claiming to be the owner thereof may wait until his possession is disturbed or his title is
attacked before taking steps to vindicate his right, the reason for the rule being, that his
undisturbed possession gives him a continuing right to seek the aid of a court of equity to
ascertain and determine the nature of the adverse claim of a third party and its effect on his own
title, which right can be claimed only by one who is in possession.
Similarly, in the case of David v. Malay,
52
the same pronouncement was reiterated by the Court:
... There is settled jurisprudence that one who is in actual possession of a piece of land claiming
to be owner thereof may wait until his possession is disturbed or his title is attacked before
taking steps to vindicate his right, the reason for the rule being, that his undisturbed possession
gives him a continuing right to seek the aid of the court of equity to ascertain and determine the
nature of the adverse claim of a third party and its effect on his own title, which right can be
claimed only by one who is in possession. No better situation can be conceived at the moment
for Us to apply this rule on equity than that of herein petitioners whose ... possession of the
litigated property for no less than 30 years and was suddenly confronted with a claim that the
land she had been occupying and cultivating all these years, was titled in the name of a third
person. We hold that in such a situation the right to quiet title to the property, to seek its
reconveyance and annul any certificate of title covering it, accrued only from the time the one in
possession was made aware of a claim adverse to his own, and it is only then that the statutory
period of prescription commences to run against such possessor.1awphi1.nt
The paramount reason for this exception is based on the theory that registration proceedings
could not be used as a shield for fraud.
53
Moreover, to hold otherwise would be to put premium
on land-grabbing and transgressing the broader principle in human relations that no person shall
unjustly enrich himself at the expense of another.
54

In the present case, Lourdes Leyson and, after her death, the petitioners, had been in actual
possession of the property. The petitioners were still in possession of the property when they
filed their answers to the complaint which contained their counterclaims for the nullification of
OCT No. 0-1619 and TCT No. 1392, and for the consequent reconveyance of the property to
them. The reconveyance is just and proper in order to put a stop to the unendurable anomaly that
the patentees should have a Torrens title for the land which they and their predecessors never
possessed and which has been possessed by another in the concept of an owner.
55

On the fifth assignment of error, we rule for the petitioners. The award of attorneys and
appearance fees is better left to the sound discretion of the trial court, and if such discretion is
well exercised, as in this case, it will not be disturbed on appeal.
56
With the trial and the appellate
courts findings that the respondents were in bad faith, there is sufficient basis to award
attorneys and appearance fees to the petitioners. Had it not been for the filing of a baseless suit
by the respondents against the petitioners, the latter would not have sought the services of
counsel to defend their interests and represent them in this case.1awphi1.nt
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the
Court of Appeals declaring the respondents the owners of Lot No. 17150 covered by OCT No. 0-
1619 and TCT No. 1392; and setting aside the award of attorneys fees in favor of the petitioners
by the Regional Trial Court are REVERSED AND SETASIDE.
The Court hereby AFFIRMS the ownership of the petitioners of Lot No. 17150. OCT No. 0-1619
and TCT No. 1392 covering the said lot are hereby nullified. The Register of Deeds is
ORDERED to cancel TCT No. 1392 and to issue another title over the property in favor of the
petitioners as co-owners thereof. The trial courts award ofP50,000.00 for attorneys fees to the
petitioners is AFFIRMED. No pronouncement as to costs.
SO ORDERED.