Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

L-33762 December 29, 1977 POTENCIANA DUQUE, AMADEO DUQUE and ARSENIO DUQUE, petitioners, vs. PAZ DOMINGO, represented by her guardian ad litem, MARCOSA DUQUEVALENZUELA, Intestate Estate of JULIA DUQUE, in substitution of Julia Duque, and the COURT OF APPEALS, respondents. Antonio K. Aranda & Virgilio B. Jara for petitioners. Arturo Agustines for respondents.

FERNANDEZ, J.: This is a petition for certiorari to review the decision of the Court of Appeals in CAG.R. No. 43557-R entitled "JULIA DUQUE, for herself and as natural guardian of her daughter of unsound mind, PAZ DOMINGO, versus POTENCIANA DUQUE, AMADEO DUQUE and ARSENIO DUQUE", the dispositive part of which reads: WHEREFORE, the decision appealed from is hereby reversed and another one entered instead, declaring Julia Duque the absolute owner of lot 1083 currently covered by TCT No. T-25195 in the name of defendants; declaring said TCT No. T-25195 null and void; and ordering that a new certificate of title be issued in the name of Julia Duque. Without pronouncement as to costs. SO ORDERED.
1

files of the Bureau all of Lands during the war and plaintiffs could not secure a copy for attachment to the complaint; that on June 22, 1915, Faustino Duque transferred his Sale Certificate No. 1138 with the permission of Juana Duque to his brother, Mariano Duque, who later received in 1931 Transfer Certificate No. 7501 for Lot 1083 from the government; that since [he issuance of the sale certificate in 1909, Juana Duque had been in the exclusive possession of Lot 1083 as owner paying the installments stipulated in the contract to the government through Faustino Duque and Mariano Duque or reimbursing their advances therefor; that in 1927, Juana Duque verbally donated and delivered Lot 1083 to plaintiff Julia Duque, her niece; that from then on up to the present, the plaintiff Julia Duque has been in the exclusive ion of Lot 1083 as beneficial owner thereof; that Mariano Duque, the title holder, died and in 1957, his children, Emilio Duque, Potenciana Duque, Amadeo Duque and Arsenic Duque registered Lot 1083 in their names under Transfer Certificate of Title No. T19924 of the Registry of Deeds of Bulacan; that subsequently Emilio Duque died without issue and the defendants had Lot 1083 recorded in their names under Transfer Certificate of Title No. T- 25195 in 1959; that plaintiff, Julia Duque, requested the defendants to reconvey to her the title of Lot 1083 but they refused and still refuse to comply with her request; that Juana Duque, the owner of Lot 1083 died single, without issue and intestate in 1928 survived by her nephews, as legal heirs, Mariano Duque, Domingo Duque, Faustino Duque and Apolonio Duque; that the foregoing legal heirs the donation of Lot 1083 made by Juana Duque to plaintiff, Julia Duque, in or about 1927 and repudiated and abandoned all rights to contest it, as in fact they caused Lot 1083 to be declared for tax purposes in the name of Paz Domingo, the only child of Julia Duque, in or about 1933; and that the defendants had plaintiffs, 2 beneficial ownership of Lot 1083 after the death of their father, Mariano Duque. In their answer filed on October 5, 1966, the defendants averred as affirmative and special defenses that Lot 1083 of the Malinta Estate is owned in fee simple by defendants, Potenciana, Amadeo and Arsenio, all surnamed Duque, as evidenced by T.C.T. No. T25195 of the Registry of Deeds of Bulacan; that said property was y purchased in 1915 by defendants' father and predecessor-in-interest, Mariano Duque, from the government of the Philippine Islands; that the purchase price of the land being payable in installment, it was only in 1931, after full payment of said price, when Mariano Duque acquired ownership in fee simple over Lot 1083 by the issuance in his favor of T.C.T. No. 7501 of the Registry of Deeds of Bulacan by the government of the Philippine Islands; that from 1915 up to the present, over a period of 51 years, Mariano Duque, his heirs and successor in interest which include defendants herein have continuously treated, held and possessed Lot 1083 as their sole and exclusive property and that no one among them has recognize that the beneficial ownership thereof was in Julia Duque, Juana Duque, Paz or any third that the vanity of the grant in 1931 by the Government of the Philippine Islands of T.C.T. No. T-7501 in favor of Duque was never questioned by the plaintiffs in inspite of their knowledge about it, that in fact the plaintiffs were aware that from the issuance of said title in 1931 will in exercise of the rights of over the land, at least three conveyances involving Lot 1083 had been in the Office of the Registry of Deeds of Bulacan which in the grant of new certificates of title in the of the name of the parties; that notwithstanding their knowledge about these conveyances the plaintiffs kept silent and never raised any objections thereto; that although the plaintiffs and defendants belong to the same family, no allegation that earnest efforts towards a compromise have been made by the former is contained in the complaint; that under the circumstances, plaintiffs have no cause of action against the defendants; that even assuming that they have a cause of action, the same has been barred by the statute of stations and/or by laches

On September 5. 1966, Julia Duque, for herself and as, natural guardian of her daughter of unsound mind, Paz Domingo, instituted against Potenciana Duque, Amadeo Duque and Arsenio Duque Civil Case No. 266-V in the Court of First Instance of Bulacan for reconveyance of Lot 1083 of Malinta Estate located in Polo, Bulacan and in the alternative, to declare Transfer Certificate of Title No. 25195 in the name of the defendants void and to declare the plaintiffs as the absolute owners of said Lot 1083. The complaint alleged that plaintiff, Julia Duque, is a niece of Juana Duque who died in 1928; that the defendants are the children of Mariano Duque, a deceased nephew of Juana Duque and natural brother of the plaintiff, Julia Duque; that sometime in 1908, Juana Duque, through her other nephew, Faustino Duque, whom she had employed as her agent, purchased from the government Lot 1083 of the Malinta Estate at Polo, Bulacan under Tax Declaration No. 8724 at P 1,600.00, more particularly described in Original Certificate of Title No. 374; that Lot 1083 was then a part of the Friar Estate of the government disposable by the Director of Lands on installment pursuant to the Friar Land Act; that Faustino Duque, the agent, caused the document of purchase, Sale Certificate No. 1138, to be issued by the government in his name with the consent of his principal, Juana Duque; that under the terms of Sale Certificate No. 1138, the price of Lot 1083 was P 503.00 payable in 20 annual installments of P 25.00 each; that the original of the sale certificate was lost in the

or it is enforceable under the Statute of Frauds; and that in any event, the plaintiffs 3 are in estoppel from claiming any rights of interest over Lot 1083. The parties filed on June 22, 1968 the following: PARTIAL STIPULATION OF FACTS The parties hereto hereby submit the following partial stipulation of facts, in compliance with the verbal permission of the Court at the hearing on June 25, 1968: 1. Plaintiff Julia Duque is the natural sister of the late Mariano Duque, who died on June 20, 1947; 2. Defendants Potenciana, Arsenio and Amadeo, all surnamed, Duque, are the legitimate children of said Mariano Duque; 3. The property in question, which was formerly a part of the Friar Land Estate of the Government (Lot 1083 of the Malinta Estate), was disposed of by the Government of the Philippine Islands on January 1, 1909 by virtue of Sales Certificate No. 1138 for a consideration of P 503.00 payable in 20 annual installments of P 25.00 per year, effective January 1, 1909; 4. As per Sales Certificate No. 1138, the grantee thereof was one Faustino Duque; 5. On September 15, 1931. Transfer Certificate of Title No. 7501, covering said parcel of land, was issued in favor of the late Mariano Duque; 6. As of this date, the property in question is covered by Transfer Certificate of Title No. 25195 of the Registry of Deeds for the Province of Bulacan issued in the names of defendants Potenciana Arsenio and Amadeo, all surnamed, Duque; 7. The present value of said property is more than P 300,000.00. WHEREFORE, it is respectfully prayed that the foregoing partial Stipulation of Facts be approved and made a part of the records of this case. AVIADO & ARANDA By: (Sgd.) ILLEGIBLE Counsel for the defendants 214 Bank of P.I. Bldg. Plaza Moraga, Manila (Sgd.) ARTURO AGUSTINES Counsel for the Plaintiffs Polo, Bulacan
4

The trial court rendered the decision dated February 1969 dismissing the complaint without cost. Meanwhile, the plaintiff Julia Duque died on January 31, 1969. She was ordered substituted by her daughter and co-plaintiff, Paz Domingo for whom Marcosa DuqueValenzuela was appointed as guardian ad litem in an order of the trial court dated 5 March 31, 1969. The plaintiffs appealed to the Court of Appeals where the appeal was docketed as CA-G.R. No. 43557-R. The Court of Appeals declared Julia Duque the absolute owner of Lot 1083 because "Although the plaintiff's theory is that the property in question was acquired by Julia Duque through an oral donation made by her aunt Juana Duque in her favor, the case should be considered from the point of view of a verbal partition among heirs made by the decedent and consented to by them." The Court of Appeals said that "In 1927 one year before her death Juana Duque gathered her nephews and nieces in her house and made a verbal partition of her properties: to each of them she gave something and to Julia she gave the property in question, all of the heirs including Mariano 6 Duque, consented to each other's largesse." The petitioners assign the following errors: I THE COURT A QUO ERRED IN NOT HOLDING THAT THE CLAIM OF PRIVATE RESPONDENTS TO ENFORCE AN IMPLIED TRUST OVER REAL PROPERTY HAD PRESCRIBED OR HAD BEEN BARRED BY LACHES. II THE COURT A QUO ERRED IN NOT HOLDING THAT THE ORAL DONATION MADE IN 19927 OF LOT 1083, ASSUMING THE TRUTH THEREOF, WAS NULL AND VOID. III THE COURT A QUO ERRED IN PRESUMING, EVEN WITHOUT ANY SHRED OF EVIDENCE PRESENTED IN SUPPORT THEREOF, AND IN UTTER DISREGARD OF THE SALES CERTIFICATE ISSUED BY THE GOVERNMENT AND ITS CORRESPONDING ASSIGNMENT, THAT FAUSTINO DUQUE AND MARIANO DUQUE ACTED AS AGENTS OF JUANA DUQUE. IV THE COURT A QUO ERRED IN NOT HOLDING THAT AN IMPLIED TRUST OVER A REAL PROPERTY COVERED BY TORRENS TITLE CANNOT BE ESTABLISHED BY A MERE TAX DECLARATION. V THE COURT A QUO ERRED IN PROMULGATING THE DECISION, WHICH IS PREMISED ON FACTS AND INVOLVING

ISSUES NOT COVERED BY THE EVIDENCE AND RAISED IN 7 THE PLEADINGS. The partial stipulation of facts and the evidence established that the land in question, Lot 1083 of the Malinta Estate was formerly a part of the Friar Land Estate of the Government that on January 1, 1909 the Government of the Philippine Islands sold to Faustino Duque Lot 1083 by virtue of Sale Certificate No. 1138 for a consideration of P 503.00 payable in 20 annual installments of P 25.00 per year, effective on January 1, 1909; that in 1915 Faustino Duque assigned his right on Lot 1083 in favor of Mariano Duque, the legitimate father of the petitioners Potenciana Duque, Amadeo Duque and Arsenio Duque; that on September 15, 1931, Transfer Certificate of Title No. 7501 was issued in the name of Mariano Duque; that upon the death of Mariano Duque, his widow, Dorotea Vda. de Duque and children, Potenciana, Amadeo, Arsenio and Emilio, all surnamed Duque, as heirs, instituted in the Court of First Instance of Manila a proceeding for the settlement of the estate of said Mariano Duque; that in the estate proceeding Lot 1083 was adjudicated pro-indiviso to the widow and children of Mariano Duque; that Transfer Certificate of Title No. 19924 was issued to the said heirs; that when Dorotea Vda. de Duque and Emilio Duque died in 1954 and 1956, respectively, their shares in Lot 1083 were inherited by the petitioners to whom Transfer Certificate of Title No. 25195 was issued; that in 1933 the land in question was declared for taxation in the name of the respondent, Paz Domingo; that beginning with the year 1949 the tax declaration embracing the land in question was in the name of Mariano Duque and that Tax Declaration No. 15214 is in the names of 8 the petitioners. The private respondents adduced oral evidence that sometime in 1908 Juana Duque, through her nephew whom she had employed as her agent, purchased from the Government Lot 1083 of the Malinta Estate in Polo, now Valenzuela, Bulacan; that Faustino Duque, the agent, caused the document of purchase, Sale Certificate No. 1138, to be issued by the government in his name with the consent of his principal, Juana Duque; and that in or about 1927 Juana Duque verbally donated and delivered 9 Lot 1083 to her niece, Julia Duque. The theory of the private respondents that the land in question was purchased by Juana Duque through her agent Faustino Duque and that in 1927 she verbally donated said land to Julia Duque is supported only by testimonial evidence which cannot prevail over the petitioners' documentary evidence consisting of Sale Certificate No. 1138 issued in 1909 whereby the Director of Lands sold Lot 1083 to Faustino Duque on a 20-year installment of P 25.00 per year for a total price of P 503.00 and the transfer certificates of title in the name of Mariano Duque and his heirs. If Juana Duque was the real purchaser, it is odd that Faustino Duque appeared as the purchaser of Lot 1083 in Sale Certificate No. 1138. From 1909 until her death in 1928 Juana Duque had never taken any step to have the land in question transferred in her name despite the fact that in 1915 Faustino Duque transferred his right to the land under Sale Certificate No. 1138 to Mariano Duque. There is no sufficient evidence to show that Juana Duque consented to the transfer by Faustino Duque of his right to the land in question in favor of Mariano Duque. Moreover, if Juana Duque was the real owner of Lot 1083 she would not have consented to the aforementioned transfer by Faustino Duque to Mariano Duque. The complaint admitted that in 1931 Mariano Duque received Transfer Certificate of Title No. 7501 for Lot 1083 from the government; that Mariano Duque, the holder, died and in 1957 his children registered Lot 1083 in their names under Transfer
10

Certificate of Title No. T-19924-, and that upon the death of Emilio Duque without issue, the defendants, petitioners herein, had said Lot 1083 recorded in their names under Transfer Certificate of Title No. T-25195 in 1959. From 1931 the title to the land in question, Lot 1083, had always been in the name of Mariano Duque and after his death, in those of his children, the herein petitioners. The complaint was filed by Julia Duque only in September 1966 after the lapse of thirty-five (35) years from the issuance of Transfer Certificate of Title No. 7501 to Mariano Duque. The alleged possession by the private respondents of the land in question did not divest the petitioners, as registered owners, of their rights to Lot 1083. Adverse possession under claim of ownership for the period fixed by law is ineffective against 11 a Torrens title. The alleged oral donation by Juana Duque in favor of Julia Duque did not transfer any right over Lot 1083 to the donee. Both under the Spanish Civil Code and the Civil Code of the Philippines, a donation of an immovable, to be valid must be made in a public document, specifying therein the property donated and the value of the 12 charges which the donee must satisfy. The Court of Appeals must have realized the fatal infirmity of the alleged verbal donation because it considered the case "from the point of view of a verbal partition 13 among heirs made by the decedent and consented to by them. There is no adequate showing that Mariano Duque consented in 1927 to a verbal partition made by Juana Duque wherein she gave the property in question, Lot 1083, to Julia Duque. On the contrary, in 1931, after full payment of the purchase price, Mariano Duque obtained in his name Transfer Certificate of Title No. 7501 for Lot 14 1083 from the government. The improbability of the alleged oral partition becomes more evident when it is considered that Lot 1083 is registered land and any transaction affecting registered 15 land should be evidenced by a registerable deed. No implied trust between Juana Duque and either Faustino Duque or Mariano Duque has been established by sufficient evidence. At any rate, granting, arguendo, that such an implied or constructive trust existed, the right of action upon the same has prescribed. From 1931 when Transfer Certificate of Title No. 7501 covering the land in question was issued to Mariano Duque until 1966 when the present case was commenced a period of 35 years had passed. The registration of an instrument in the Office of the Register of Deeds constitutes constructive notice to the whole world, and, therefore, discovery of the fraud is 16 deemed to have taken place at the time of registration. Such registration is deemed to be a constructive notice that the alleged fiduciary or trust relationship has been repudiated. It is now settled that an action on an implied or constructive trust 17 prescribes in ten (10) years from the date the right of action accrued. The issuance of Transfer Certificate of Title No. 7501 in 1931 to Mariano Duque commenced the effective assertion of adverse title for the purpose of the statute of limitations. WHEREFORE, the decision of the Court of Appeals appealed from is hereby set aside and Civil Case No. 266-V of the Court of First Instance of Bulacan is dismissed, without pronouncement as to costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-27675 December 15, 1982 ZOILA DUMANON, SEVERINA DUMANON, PEDRO REBOYON, VICTORIANA MONTILLA, REFARADO FURIA, ROSARIO DE LAWAN, FELICIDAD DE DULAYBA and OLYMPIO DULAYBA, plaintiffs-appellants, vs. BUTUAN CITY RURAL BANK, BUTUAN CITY REGISTER OF DEEDS, FELISA AZOTE VDA. DE DUMANON, RACQUEL DUMANON, ROSARIO DUMANON, ERNESTO DUMANON, CARLOS CURILAN and RUFINA NARANJO, defendants-appellees. Timoteo D. Naldoza for plaintiffs-appellants. Mercado & Catalua Law Offices for defendant-appellees Dumanons and spouses Curilan. Tupaz & Ortega Law Offices for defendant-appellee Bank.

premises and turning over the possession thereof to plaintiffs hereof and that said defendants be ordered to reconvey the property in question to plaintiffs hereof except the assisting husbands (Pedro Reboyon Refarado Furia and Olympio Dulayba); 3. That TCT No. RT 82 and RT 479 in the names of Fermin Dumanon and Carlos Curilan and Rufina Naranjo, respectively, be cancelled and declared null and void and without force and effect; 4. That the deed of donation mentioned in paragraph 4 of the complaint and all the other documents which may be found in this case be likewise declared void and inexistent; 5. That the mortgage by defendants Carlos Curilan and his wife Rufina Naranjo be declared also as null and void and without force and effect; 6. That the illegal annotation entered on TCT RO 82 in 1951 re the void donation be likewise declared null and void and that the defendant Register of Deeds be directed to issue to plaintiffs hereof their new Transfer Certificate of Title; 7. That defendants except the Butuan City Rural Bank and Register of Deeds be ordered to pay jointly and severally to the plaintiffs hereof, the following, as follows: P2,000 for the value of the house destroyed by defendants Carlos Curilan and Rufina Naranjo; P700 a month from January, 1958 and up to the date this case is finally terminated; P2,000 for attorney's fees and expenses of litigation up to the present stage of the proceedings and that all said fees and expenses that may be incurred later be determined and fixed by this court or by the appellate court concerned in case of appeal; and for moral and exemplary damages that the plaintiffs suffered in the amount that this court or the appellate court concerned may fix in the final judgment of tills case at the court's discretion. The issue raised in this appeal of whether the order granting the motion to dismiss is proper, valid or legal requires an examination of the allegations of the complaints, because, for the purpose of tile motion to dismiss they are deemed hypothetically admitted (Lim et al. vs. De los Santos, G.R. No. L-18137, August 31, 1963, 8 SCRA 798). Only facts alleged in the complaint should be considered, specially when the ground alleged is prescription (Cordova vs. Cordova, G.R. No. L-9936, January 14, 1958; Convets Inc. vs. Nat. Dev. Co., et al., G.R. No. L-10232, February 28, 1958). It is alleged in the first amended complaint (paragraph 4) that a deed of donation of the land in question was executed by Rufo and Paula Dumanon dated January 3, 1933, but claimed to be void because same was fraudulently executed, the supposed donors being illiterate, unable to read and write, and could not have signed the document, as they appear to have done so, and that they could not have parted with the land donated since they (donors) claimed the same as their own in the Cadastral proceedings and obtained OCT No. RO-23 (1242) in their name in equal shares, free from any encumbrance, not even the supposed donation. This deed of donation is sought to be declared void and inexistent by the plaintiffs-appellants. With respect to the above cause of action as ground for the annulment of the donation, the order dismissing the complaint is perfectly valid and legal. On the face of the complaint, it is manifest that the deed of donation, having been executed in 1933, the action to annul the deed on the ground of fraud, as is the essence of the cause alleged for its nullity, is already barred by prescription, as well as by laches, when the complaint was filed on January 26, 1965, after the lapse of 32 years.

DE CASTRO, J.: Appeal from the order dated September 10, 1966 (pp. 60-63, Record on Appeal, p. 10, Rollo) of the Court of First Instance of Agusan dismissing Civil Case No. 1029 of said court on a motion to dismiss filed by defendants Carlos Curilan and Rufina Naranjo (pp. 39-45, Record on Appeal, p. 10, Rollo). The motion to dismiss alleged the following grounds: 1. THAT THE CAUSE OF ACTION IS BARRED BY STATUTE OF LIMITATIONS (Rule 16, sec. 1, Par. (f) of the Rules of Court); 2. THAT THE COMPLAINT STATES NO CAUSE OF ACTION (par. [g]); 3. THAT THE SUIT IS BETWEEN MEMBERS OF THE SAME FAMILY AND NO EARNEST EFFORTS TOWARDS A COMPROMISE HAVE BEEN MADE (par. (j). (p. 40, Record on Appeal). In its order granting the motion to dismiss, the court held that the action was barred by laches and the statute of limitation. A motion for reconsideration was filed of the dismissal order (pp. 74-75, Record on Appeal, p. 10, Rollo), but the same was denied, (p. 76, Record on Appeal, Id.). Plaintiffs then interposed the present appeal. The records disclose that on January 26, 1965 plaintiffs (now herein appellants) filed a complaint which was amended, after a motion for a bill of particulars had been granted (pp. 24-35, Rollo), with prayer as follows: Wherefore, it is most respectfully prayed that judgment issue in favor of plaintiffs, as follows: 1. That upon filing of this case,let an order immediately issue directing (if still required) the appointment of defendant Feliza Azote Vda. de Dumanon as guardian ad litem for minors, namely: Racquel, Rosario and Ernesto Dumanon for the purpose of this case; 2. That plaintiffs aforesaid be declared absolute owners of the property in question ordering Carlos Curilan and Rufina Naranjo to vacate the

It has been held that an action to annul an extrajudicial settlement upon the ground of fraud should be filed within four (4) years from the discovery of the fraud (Gerona vs. de Guzman, L-19060, May 29, 1964, 11 SCRA 153). An action to annul a contract of sale for lack of consideration also prescribes in 10 years (Cunanan vs. De Antepasado L-16169, August 31, 1962, 5 SCRA 1028). From the allegation of the complaint, it can be deduced with certitude that appellants had discovered the fraud, at the latest, when the deed of donation was registered, because registration is notice to the whole world of such fact. Appellants, in effect, had by the allegations of the complaint admitted knowledge of the fraud in the execution of the deed of donation upon knowing that there exists such a deed, for their allegation is that the supposed donors could not have parted with the land, knowing them to be illiterate, unable to read and write, and, therefore, could not have signed the document as they appear to have done, and they had in fact claimed the land in the cadastral proceedings where they obtained a certificate of title in their name. The deed of donation is like either the deed of extra-judicial settlement or the deed of sale, which are the documents involved in the aforecited cases, as a mode of transferring title to another, Hence, either on the ground of fraud or for lack of consideration (even donation is deemed to have also cause or consideration), the annulment of the donation as is sought in the present action is barred by prescription, on the authority of the aforecited cases within 4 years from the discovery of the fraud, if such is alleged, 10 years, if no fraud is alleged. Appellants, however, contend that the real and principal action in their complaint is the annulment of the registration of the deed of donation on November 21, 1951, which led to the cancellation of TCT No. 82 in the name of Fermin Dumanon, the done in the aforementioned donation. It is alleged in the complaint (par. 5) that the registration was in bad faith and unauthorized, the defendants who caused the registration of the deed of donation being fully aware that the land lawfully belonged to plaintiffs-appellants and to Rufo Dumanon. From the allegations of the complainant, it would appear that the registration of the deed of donation sought to be annulled as expressly prayed for in the complaint took place on November 16, 1951. At the time, one of the donors, Rufo Dumanon, was still alive, as could clearly be implied from the allegation of the complaint (paragraph 7). Again, on the basis of the allegation of the complaint itself on this particular matter, prescription lies to bar the action for the annulment of the registration of the document, exactly 14 years having elapsed from the time of said registration on November 16, 1951 to the filing of this action on January 26, 1965. Even admitting as true the allegation that the registration of the deed of donation was if, bad faith and unauthorized, an action to annul it on the ground of fraud should have to be filed within 4 years, from discovery of the fraud (Rone et al. vs. Claro et al., G. R. No. L4472, May 8, 1952. Gerona vs. de Guzman, supra, Mapalo vs. Mapalo, 17 SCRA 114). The fraud is deemed discovered at the latest, from the date of the registration of the deed of donation, because the registration is notice to the whole world that the deed of donation had been so registered (Section 51, Act 496). Another theory deducible from the allegation of the complaint is that the allegedly unlawful registration of the deed of donation created an implied trust in favor of the plaintiffsappellants as the real owners of the land. The defendants in whose name the land was registered became, by the principle of implied trust, the trustees with the plaintiffsappellants as cestrui que trust. Even so, prescription will lie to bar the present action to enforce the trust, for as held by prevailing jurisprudence, such action, held to be imprescriptible by earlier decisions, prescribes in 10 years, or even in only 4 years, if fraud had been committed, as when there is a breach of the fiduciary relation (Miguel vs. Court of Appeals, L-20274, October 30, 1969, 29 SCRA 760). While the rule of imprescriptibility of action to recover property held in trust may possibly apply to resulting trust as long as the trustee has not repudiated the trust (Ramos vs. Ramos, 61 SCRA 284), the allegation

of the complaint itself shows on its face what may ,be considered an unequivocal act of repudiation. It is the act of registration by which the registrants obtained title in their names thereafter claiming the property as their own to the exclusion of all others, with a right to dispose of the property as they did dispose of it when the defendants Feliza Azote Vda. de Dumanon, widow of Fermin Dumanon who became the registered owner of the land when the deed of donation was registered, with TCT No. 80, and their children sold the property to their co-defendants, spouses Carlos Curilan and Rufina Naranjo, appellees herein, who obtained TCT No. 479 in their name, thereby serving notice to appellants of the transaction, who accordingly could not claim ignorance of the sale of the property to said appellees, Carlos Curilan and Rufina Naranjo. Even assuming that a trust resulted by the registration of appellees of their deed of sale, action for the annulment of the sale has also prescribed because the complaint itself (paragraph 6) alleged fraudulent conspiracy in the sale between the heirs of Fermin Dumanon and appellees spouses, in which case the prescriptive period is four years from the discovery of the fraud, which should be when the sale was registered in the Registry of Deeds in 1957. It is evident, from what has been said, that plaintiffs-appellants' action is barred by the lapse of ten years from the time their cause of action accrued (Dira vs. Taega L-23232, June 17, 1970, 33 SCRA 479) whether appellants' action is one to annul the deed of donation, or one to annul the registration thereof, with a view to asking for the reconveyance of the property to them, as is the ultimate relief prayed for (Reyes vs. Apostol, L-25375, October 30, 1970, 35 SCRA 524). With respect to appellees, Carlos Curilan and Rufina Naranjo, who filed the motion to dismiss in question, prescription was properly pleaded as ground for their motion, because if the action has prescribed as against their vendors, logically it has prescribed also as against them, as the vendees of the land. Appellants also contend that the ground invoked by appellees in their motion to dismiss and sustained by the lower court, was already available with the original complaint, even before it was amended, as a result of the granting of the motion for a bill of particulars which defendants filed; hence, in not filing the motion to dismiss seasonably the same should be denied, or that the ground therefor should not be sustained for not having been raised within the time to file the answer. The time to file a motion to dismiss is coterminous with the period to answer. This is as expressly provided by the Rules of Court, Section 1, Rule 16 (J.M. Tuason vs. Rafor, L15537, June 30, 1962, 5 SCRA 478). Hence, as long as the time to file the answer has not lapsed, a motion to dismiss may be filed within such time, instead of an answer. It must be borne in mind that in the present case, defendants below filed a motion for a bill of particulars. The running of the period to answer was thereby suspended. It is resumed upon the amended complaint being filed in compliance with the court's order granting the motion for a bin of particulars. As the time to answer the amended complaint has not yet lapsed, the filing of a motion to dismiss the said complaint is equally still within the reglementary period. There is, therefore, no occasion to speak of the ground invoked for the motion to dismiss as already barred for failure to invoke it, since it was being invoked in the first and only motion to dismiss filed with demonstrated timeliness. WHEREFORE, the errors assigned against the order appealed from having been found to be unfounded, the order appealed from should be as it is hereby affirmed. Costs against appellant. SO ORDERED.