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APPELLANTS BRIEF COME NOW, the defendants-Appellants, through counsel, and unto this Honorable Court of Appeals, submit

the following BRIEF in support of their appeal. The Notice to File Brief within forty five (45) days from receipt dated January 28, 2013 was received February 8, 2013. The 45th day from receipt falls on March 25, 2013. Hence, Appellants Brief is filed on time.

STATEMENT OF THE CASE This is a complaint for recovery of possession of real property, filed by HAIDE LAGROSA-YANCE, represented by her attorney-in-fact MARICHEL YANCE-BAUTISTA, Plaintiff Haide Lagrosa-Yance, in her Special Power of Attorney, hereafter SPA empowered her attorney-in-fact to file this case against SPS. CESAR PAGES. The attorney-in-fact, however filed this against defendants SPS ANDRES PAGES who are not the one named in the SPA. Notwithstanding the objection to the SPA when formally offered that the complaint is filed against the defendants SPS. ANDRES PAGES, not mentioned in the Special Power of Attorney, plaintiff still persisted in continuing the case although SPA does not authorize filing against the said SPS. ANDRES PAGES, defendants herein. While the attorney-in-fact is also one of the heirs of the deceased CESAR YANCE, she did not file this case in her own behalf but in behalf of her mother. There being no authority from Haide Lagrosa Yance the court a quo should not have proceeded to try the case. For the reason that the attorney-in-fact has no authority to file this case against spouses Andres Pages, defendants herein, the required verification and certification against forum shopping against spouses Andres Pages is likewise unauthorized. There being no valid certification against forum shopping the case should have been dismissed pursuant to Section 5 of Rule 7 of the Rules of Court. This defect is fatal and cannot be cured by submitting a new certification against forum shopping. Absent a valid certification against forum shopping, the case should be dismissed under the Rule of Rules of Court. This complaint to recover possession should not prosper against defendants because of the finding of the Court of Appeals on CA Case No. GR No. 86145 promulgated March 02, 1997 that there is a contract to sell

between estate of Cesar Yance and the sps. Andres Pages and payment of P495,000.00 with a balance of only P5,600.00 of the agreed purchase price.

STATEMENTS OF FACTS 1. Plaintiff filed a complaint for Recovery of Possession of Real Property entitled HAIDE LAGROSA-YANCE, represented by MARICHEL YANCEBAUTISTA, plaintiff vs. ANDRESS PAGES, NONA PAGES, and all other person claiming rights under them, defendants. 2. Plaintiff averred in the complaint that:
1. Plaintiff is of legal age, a resident of New Jersey, USA., coowner of a certain parcel of land covered by TCT No. 52170, of the Registry of Deeds of Paraaque City, herein represented by her daughter MARICHEL YANCE-BAUTISTA. The latter is a resident of Block 18, Lot 31, Kalayaan Village, Pasay City. Copy of the Transfer of Certificate of Title No. 52170, Special Power of Attorney and latest receipts of real property tax are hereto attached and marked as Annexes A B & C, respectively, forming integral parts hereof; 2. Spouses Andres Pages and Nona Pages, are both Filipinos, currently occupying the land covered by TCT No. 52170, at 5 Thomas St., Multinational Subdivision, Paraaque City; 3. Sometime in 1992 defendants Andres Pages who purportedly own the property contiguous to the property covered by TCT No. 52170, without permission form plaintiff, began occupying the portion of the latters property by placing construction materials and equipment thereon; 4. Not contented with the aforesaid intrusion, defendants constructed a shade with concrete floorings which served as his parking lot for his vehicles; 5. Said parking shade practically covers almost half of the property covered by TCT No. 52170, encroaching practically about 90 square meters more or less; 6. Despite repeated verbal and written demands, defendants refuse to surrender possession of the more or less 90 square meters they are maliciously and illegally occupying without paying rent and over the vehement objection s of the herein plaintiff;

7. Sometime later Andres Pages constructed his house with roofs abutting the property of the plaintiff without observing proper distance between a house adjacent to another lot; 8. On March 12, 2007, plaintiff sent a demand letter to the defendant copy of which hereto attached and marked as Annex D, forming an integral part of hereof; 9. Despite said demand letter, defendants continue to maliciously, and illegally occupy the property of the herein plaintiff, without paying any rent or value thereof, to the prejudice and damage of the latter. 10. In view of the repeated and deliberate failure of the defendants to vacate the property of the plaintiff, the latter was constrained to engage the services of counsel for which they are committed to pay the amount of P50,000.00 by way of acceptance fees and reasonable amount of P2,500.00 for every appearance; 11. Defendants, for years have been occupying illegally the property of plaintiff over the objections of the latter. Plaintiff therefore has suffered sleepless nights and moral anguish and prejudice for which the defendants should be made to pay the amount of P100,000.00, by way of moral damages; 12. To educate the public and to serve as example to the public to dissuade them from following the illegal acts of the defendants, the latter must be ordered to pay the plaintiff the amount of P100,000.00 by way of exemplary damages; 13. Pending the resolution of this instant case, defendants must be ordered to pay the plaintiff the amount of P2,000.00, by way of reasonable rent, from the time the demand letter was sent to them until possession of the property in question is fully surrendered to the herein plaintiff.

3. Defendants filed their answer alleging as follows:


Answer with Counterclaim Defendants, through undersigned counsel, answering the complaint, before this Honorable Court most respectfully state: 1. Defendants have no knowledge sufficient to form a belief as to the truth of the allegation contained in paragraph 1 respecting the personal circumstances of plaintiff.

2. The allegation contained in paragraph 2 are admitted with the qualification that defendants Pages are occupying only or 90 square meters of TCT 52170, a portion of which is adjacent to their land. 3. The allegation contained in paragraph 3, 4, 5, 6, 7, 8, & 9 of the complaint are not entirely accurate and therefore denied, the truth of the matter being as stated in Affirmative Defenses. 4. The allegation contained in paragraph 10, 11, 12, & 13 are not ultimate allegation of facts, hence these are denied, the truth of the matter being as stated in Affirmative Defenses.

Affirmative Defenses Defendants reiterate, as though fully set forth, the answers above as far as the allegations are material and relevant hereto, and further allege as follows: 5. There is no cause of action for recovery of possession. In the case entitled Sps. Andres Pages and Nona Pages vs. The Estate of Cesar Yance and Maria Cristina Yance, docketed as C.A. G.R. No. 86145 promulgated March 02, 2007, the Court of Appeals ruling that attained finality stated that: The core issue to be resolved is whether or not the contract denominated as Contract to Sell, which was entered into by and between herein plaintiffsappellants and defendant-appellee, Maria Cristina, is a contract to sell or contract of sale. In a contract to sell, a vendor reserves ownership of the property and is not to pass until full payment. On the other hand, a contract is one of sale, absent any stipulation therein reserving title over the property to the vendee until full payment of the purchase price nor giving the vendor the right to unilaterally rescind the contract in case of non payment. Thus, in a contract of sale, the sale is absolute, in which title passes to the buyer upon delivery of the things sold. In the instant case, herein plaintiffs-appellants argued that while their contract was denominated as Contract to Sell, it was really a contract of sale since there was no stipulation reserving ownership of the subject land until full payment of the purchase price, and because earnest money was given as part of the purchase price.

We are not persuaded. We find the contract entered into by and between herein plaintiffs-appellants and defendants-appellee way back on December 16, 1997 as a contract to sell. The fact that earnest money was given as part of the purchase price is not determinative of whether the contract is one of contract of sale or contract to sell. What determines the nature of the contract is whether or not there was a reservation of ownership of the thing sold until full payment of the purchase price. The contract entered into by and between herein plaintiffsappellants and defendant-appellee, Maria Cristina-Yance, specifically provides that ownership over the 90 square meter portion of the subject land shall be transferred only to herein plaintiffs-appellants upon their compliance of all the required conditions, to wit: XXX Upon compliance of all the conditions required of the BUYER under this contract, the SELLER shall execute the requisite deed transferring ownership of the property to the formers name. XXX One of the conditions in the contract is the full payment of the purchase price which is P495,000.00. Before the fulfillment of such condition, ownership over the things sold retains (sic) with the seller, Maria Cristina Yance. We note that the herein plaintiffs-appellants, spouses Andres Pages and Nona Pages, could not even categorically state the total amount of money that they had paid to the seller, Maria Cristina Yance, as would entitle the former to be transferred with the ownership of the thing sold. The trial court found that herein plaintiffsappellants paid only P489,400.00, which is P5,600.00 short of the agreed price. Hence, the seller, herein defendant-appellee, Maria Cristina Yance, still retains ownership over the property sold until full payment of the purchase price thereof. However, we note that the seller, Maria Cristina Yance, seems to have no more intention without just cause of continuing with her contract with herein plaintiffappellants, spouses Andres Pages and Nona Pages, as the former could no longer be located. The least that herein plaintiffs-appellants could do, for them to be entitled to specific performance, that is, that a contract of sale over the 90 square meter portion of the property be executed in their favor is to make a consignation of the balance of the purchase price by depositing it at the disposal of judicial authority. (Citation omitted)

Photocopy of the Decision promulgated on March 2, 2007 is Annex A hereof. Thus all that the defendants need to do is only to pay the balance of Php5,600.00 in accordance with the said Decision of the Court of Appeals. 6. That there is a violation of the certification against forum shopping by Marichel Yance-Bautista. Contrary to the certification of non-forum shopping, there is another case involving the same parties, subject matter and issues as the case at bar. The said case is entitled sps. ANDRES PAGES and NONA PAGES vs ESTAIE OF CESAR YANCE and MARIA CRISTINA YANCE. In aforementioned case the court of Appeals rendered a decision promulgated on March 2, 2007 that has attained finality. 7. There is a notice of lis pendens annotated at the back of TCT 52170 involving civil case No. 99-0241 before the RTC of Paraaque City which was later appealed to the Court of Appeals and docketed as C.A. G.R.. C.V. No. 86145. 8. That said Decision ruled that there is a balance of Php5,600.00 due the estate of Yance and should be paid before transfer of ownership can be affected. 9. That defendant was given possession because of a contract between the estate of Yance and defendant spouses.

Counterclaim 10. In filing this frivolous and unreasonable suit, plaintiffs placed defendants in disrepute by practically calling them land grabbers. As a result, defendants suffered unnecessary dishonor, inconvenience, anxiety, distress and worry, for which the plaintiffs must be compensate defendants for moral damages in the sum of P100,000.00. 11. That defendants were constrained to defend themselves by reason of this frivolous suit and was forced to engaged the service of undersigned attorney for a fee; consequently plaintiffs must reimburse defendants of the sum they will spend by reason of this suit to wit; Php50,000.00 for and as acceptance fee, Php100,000.00 for and as lawyer's retainer fees and appearance fee for each day of hearing attended in the amount of Php5,000.00. In addition the plaintiffs must reimburse defendants of all sums incurred in connection with action in such amount as will be proven in trial. 12. To deter others from committing similar acts, plaintiffs should be ordered to pay exemplary damages in the amount Php500,000.00.
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The court a quo rendered judgment, the ---- portion of which reads:
WHEREFORE, in view of the foregoing, judgment is rendered in favor of the plaintiff and against the defendants: (1) Ordering the defendants to vacate and to surrender to the plaintiff the possession of the portion of the land or about 90 square meters thereof covered by Transfer Certificate of Title No. 52170; (2) Ordering the defendants to pay a monthly rental herein equitable fixed at P2,000.00 peer month for the possession of the said portion of land of plaintiff reckoned from the date of dem and which is March 12, 2007 until the said portion of land is fully vacated/surrendered to the plaintiff; (3) Ordering the defendants to pay the plaintiff the sum of P100,000.00 as moral damages; (4) Ordering the defendants to pay the plaintiff the sum of P50,000.00 plus P2,500.00 per court appearance as and for attorneys fees; (5) And costs. SO ORDERED. Paraaque City, Philippines, August 30, 2012.

ASSIGNMENT OF ERRORS 1. The court a quo erred in holding that this is a verified complaint for recovering of possession of real property filed by plaintiff Haide Lagrosa Yance represented by Marichel Yance-Bautista against defendants Andres Pages and Nona Pages notwithstanding the fact that the Special Power of Attorney executed by Haide Lagrosa Yance, authorized the filing of the case

against spouses Cesar Pages only and not against spouses Andres Pages. 2. The court a quo erred in reversing the findings of facts of the Court of Appeals that there was an argument sometime in July 1997, prior to the death of Cesar Yance, between Cesar Yance represented by Maria Cristina Yance by virtue of a Special Power of Attorney and spouses Andres Pages to buy the subject property. 3. The court a quo erred in reversing the findings of facts of the Court of Appeals in the case entitled and docketed as CA GR CV No. 86145 that there is contract to sell between the estate of Yance and the defendants spouses Andres Pages. 4. The court a quo erred in holding that plaintiff as the registered owner of the property has the better right to possess the property notwithstanding the fact that there is an adverse claim annotated at the back of the title respecting a contract to sell in favor of the defendants spouses Andres Pages, the existence of which is confirmed ruled by the Court of Appeals in said CA GR No. . 5. The court a quo erred in ordering defendants to vacate the property in question, to pay plaintiff damages, attorneys fees and cost. ARGUMENTS/DISCUSSION 1. First Assigned Error. The court a quo erred in holding that this is a verified complaint for recovering of possession of real
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property filed by plaintiff Haide Lagrosa Yance represented by Marichel Yance-Bautista against defendants Andres Pages and Nona Pages notwithstanding the fact that the Special Power of Attorney executed by Haide Lagrosa Yance, authorized the filing of the case against spouses Cesar Pages only and not against spouses Andres Pages. The Special Power of Attorney reads:
" SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That I, HAIDE LAGROSA-YANCE, Filipino citizen, of legal age, a resident of New Jersey, do hereby name, constitute and appoint MARICHEL YANCE-BAUTISTA, of legal age, resident of Blk. 18, Lot 31, Kalayaan Village, Pasay City, to be my lawful attorney in fact, to do and perform the following acts and deeds, to wit: To represent me in the filing of a civil ease against Sps. Cesar Pages for recovery of possession involving my property which is registered under TCT No. 52170; to file the necessary action, petition or claim and verify the same and execute the corresponding certification of non-forum shopping until their final termination, after exhaustion of all possible appeals; and To appear and represent me before any court, tribunal, administrative or quasi-judicial body to carry out the objectives of this authorization. To represent me for purpose of preliminary conference and/or pre trial conference in the proper forum for purpose of entering into amicable settlement; to submit to alternative modes of dispute resolution; and to enter stipulation or admission of facts and of documents, among others. GIVING AND GRANTING, unto my said Attorney-InFact full powers and authority to do and perform all and every act and things whatsoever requisite or necessary to be done in and about the premises as full to all intents and purposes as I might or could be lawfully do if personally present; and

HEREBY RATIFYING AND CONFORMING, all that my said Attorney-In-Fact shall lawfully do or cause to be done by virtue of these present. IN WITNESS WHEREOF, I have hereunto set my hand this 17 day of August, 2007, in New York, U.S.A. HAIDE LAGROSA.YANCE Principal"

It bears stressing that portions of the SPA in question reads:


To represent me in filing of a civil case against sps. Cesar Pages for recovery of possession involving my property which is registered under TCT No. 52170; to file the action, petition or claim and verify the same and execute the corresponding certification of non-forum shopping until their final termination, after exhaustion of ill possible appeal.

It is clear from the foregoing that the authorization to execute the corresponding certification of non-forum shopping is also for the case to be filed against sps. Cesar Pages. There is no such authorization against sps. Andres Pages. There if therefore no valid certification against forum shopping. This case has to be dismissed. This defect is fatal. This cannot even cured by submitting another certification against forum shopping. When the court a quo ruled for the admission of the Special Power of Attorney, Exh. A, defendants filed a motion for reconsideration, which reads as follows: The objection to the Exh. A SPA, was made when the document was formally offered. The court a quo not only ruled for admission of Exh. A in evidence but ruled that the filing of this case against sps. Andres Pages is authorized by the SPA even though the authorization was against sps. Cesar Pages only. 2. Second Assigned Error. The court a quo erred in reversing the findings of facts of the Court of Appeals that there was an argument sometime in July 1997, prior to the death of Cesar Yance, between Cesar
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Yance represented by Maria Cristina Yance by virtue of a Special Power of Attorney and spouses Andres Pages to buy the subject property. Exhibit 7 - Decision of Regional Trial Court Br. 195 by the Honorable Judge Aida Estrella Macapagal in the case entitled SPS Andres Pages and Nona Pages, plaintiff versus state of Cesar Yance and Maria Cristina Yance, defendants docketed or civil case No.99-0241 reads;
Decision This is a verified complaint for specific performance. For failure of the defendants to file responsive pleadings, the motion to declare them in default was granted and plaintiffs were allowed to present evidence ex-parte before the Branch Clerk of Court of this Court who was designated commissioner for that purpose. Before the commissioner, Atty. Benjamin V. Aritao, counsel for plaintiffs, marked documents (Exhibits "A" to "D' and sub-markings) to prove compliance with judicial requirements and thereafter presented plaintiff Andres Pages to testify in Support of the allegation in their complaint. Mr. Pages testified that he and his wife, Nona and the defendants, Cesar Yance and Maria Cristina Yance, are neighbors and that the latter used to visit them. During one of the visits of the defendants Maria Cristina, she offered to sell to them by virtue of a Special Power of Attorney (Exh. E" and sub-marking) executed by her father, defendant Cesar, in her favor, properly covered by Transfer Certificate of Title No. 52170 (Exh. F). The said property is the same lot as the one situated adjacent to their' which consist of an area of 180 square meters. He and his wife accepted defendant Ma. Cristina's offer. The agreed price was P5,500.00 per square meter. They have made 18 partial payments as evidenced by the receipts (Exh. G to G-17) issued to them by defendant Maria Cristina However, the sale agreement that was reduced into writing (Exh. H" and sub-markings) was only with regard to one-half of the property (90 sq.m.) as they (plaintiffs), were only making partial payments. The other half of the property will be paid only after full payment of the first half thereof. When they were able to pay in full the first half of the properly, they could no longer find defendant Ma Cristina. In view of this, the consulted a lawyer in order to protect their interest in the said property and were advised to file an adverse claim on the property
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(Exh. "I" and sub-marking). They also filed the instant complaint and caused annotation of lis pendens (Exh. "J) on the title of the subject property. Since defendant Cesar had already passed away, his estate was impleaded in the instant complaint. Further, in their need to protect their interest, they contracted the services of counsel in the amount of P50,000.00. Witness likewise identified all the documents presented and marked before the commissioner. The contract entered into between the parties in this case is a contract to sell involving 90 square meters of a parcel of land located at Lot 16, Blk 9, Thomas Street, Multinational Village, Paraaque City, and covered by TCT 52170.It was provided in their written agreement (Exhibit H) that the seller would execute the deed of sale upon payment of the purchase price of P495,000.00. But record show that a contrary to the claim of the plaintiffs the purchase price has not yet been fully paid. A careful perusal of the evidence (Exhibits "G"-G-17") presented by the plaintiffs would reveal that they have only paid the amount of P495,400.00 which is P5,600.00 short of the agreed price of P495,000.00. In a contract to sell real property on installments, the full payment of the purchase price is a positive suspensive condition, the failure of which is an event that prevent the obligation of the vendor to convey the title from acquiring any obligatory force. The transfer of ownership and title would occur only after full payment of the purchase price (Leao vs Court of Appeals, 369 SCRA 36).In the case at bar, the failure of the plaintiffs to make the full payment of the purchase price prevents defendants obligation to convey title from acquiring any binding force, hence plaintiffs prayer that defendants be compelled to execute a deed of sale over the 90 square meter portion of the property, subject of the contact to sell, cannot be granted, much less the prayer for the execution of the deed of sale over the entire property. Suffice it state that there was not even an iota of evidence presented by the plaintiff to show that defendants also offered to sell to them the other half of the subject property.

On appeal to the Court of Appeals, the court of appeals ruled:


DECISION The Case

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"Before us is an appeal from the Decision of the Regional Trial Court, Branch 195, Paraaque City Civil Case No. 99 -0241, disposing as follows: xxx WHEREFORE, for failure of the plaintiffs to preponderantly prove their claims, the same are DENIIED, and the instant complaint is hereby ordered DISMISSED. SO ORDERED. Paraaque City January 31,2005.

Facts Sometime in July 1997, herein defendant-appellee, Maria Cristina Yance, offered to sell to plaintiffs-appellants, spouses Engr. Andes P. Pages and Nona Pages, by virtue of a Special Power of Attorney, a residential lot, located at Lot 16, Block 9, Thomas Street, Multinational Village, Paraaque City, covered by Transfer Certificate of Title No . 52170, with an area of 180 square meters. The lot was registered in the name of Cesar Yance, the late father of Maria Cristina Yance. Plaintiffs-appellants accepted the offer and the agreed purchase price was P5,500.00 per square meter. On December 16, 1997, plaintiffs-appellants and defendant-appellee Maria Cristina Yance, executed a sale agreement denominated as "Contract Sell," for the sale of only half of the total area, that is 90 square meters with the following terms and conditions:
xxx The BUYER shall pay to the SELLER the agreed purchase price of the said parcel of land as follows: a.) A down payment of (101,400.00), One Hundred One Thousand Four Hundred, Philippine Currency, upon signing of this contract receipt of which is hereby acknowledged by the SELLER; b.) The balance of Three Hundred Ninety Three Thousand Six Hundred Pesos (393,600.00) shall be paid by the BUYER in regular intervals or as per need basis by the SELLER within a period of (18) months. Any amount that remains unpaid on the stipulated due date shall bear a penalty charge of (24%) per annum until fully paid. The SELLER further may, upon prior notice to the BUYER increase or decrease the interest and/or penalty herein from time to time within the limits of law.
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Real estate taxes and assessment on the subject parcel of land shall be paid by the BUYER without resource to the SELLER. Upon compliance of all the conditions required of the BUYER under this contract, the SELLER shall execute the requisite deed transferring ownership of the property to the formers name. Such deed shall be registered with Register of Deeds within 90 days from execution thereof, and the SELLER shall there upon deliver the covering title to the BUYER. Expenses incurred for registration, documentary stamp, transfer tax shall be paid for by the BUYER. Capital Gains Tax shall be paid for by (sic) the SELLER. No transfer or assignment of the BUYERS rights and interest under this contract shall be valid without the written acknowledgement and consent of the SELLER. This Contact shall be obligatory and binding upon the heirs, successors, administrator and assign of the respective parties. xxx"

As of the other half plaintiff-appellants will pay the purchase price thereof after making a full payment of the first half of the property. After making eighteen (18) partial payments, plaintiffs-appellants wanted to pay the full purchase price of not only the 90 square meter portion of the property by said contact to sell, but the whole 180 square meters thereof, but defendants-appellee, Maria Cristina Yance could no longer be found. Hence, plaintiffs-appellants instituted a complaint for a specific performance before the Regional Trial Court, Paraaque City. The complaint was docketed as Civil Case No. 99-0241. Defendant-appellee, Maria Cristina Yance, upon motion of plaintiffsappellants, was declared in default after the former failed to file any responsive pleading to the complaint. The case was then referred to the Clerk of Court, Lilibeth O. Adaga, who was designated as commissioner for the presentation of evidence ex parte. The RTC Ruling Base on the Commissioner's Report, the court a quo rendered a default judgment and ruled as follows:
xxx

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The contract entered into between the parties in this case is a contract to sell involving 90 square meters of a parcel land located at Lot 16, Blk 9, Thomas Street, Multinational Village, Paraaque City, and covered by TCT 52170.It was provided in their written agreement (Exhibit H) that the seller would execute the deed of sale upon payment of the purchase of (P495,000.00). But the records show that contrary to the claim of plaintiffs, the purchase price has not yet been fully paid. A careful perusal of the evidence Exhibits G"-G-17) presented by the plaintiffs would reveal that they have only paid the amount of P489,400.00 which is short P5,600.00 short of the agreed price of P495,000.00. In a contract to sell real property on installment, the full payment of the purchase price is a positive suspensive condition, the failure of which is an event that prevents the obligation of the vendor to convey the title from acquiring any obligatory force. The transfer of ownership and title would occur only after full payment of the purchase price (Leano vs Court of Appeals, 369 SCRA 36). In the case at bar, the failure of the plaintiffs to make the full payment of the purchase price prevents defendants' obligation to convey title from acquiring any binding force, hence plaintiffs prayer that defendant be compelled to execute a deed of sale over the 90 square meters portion of the property, subject of the contract to sell, cannot be granted, much less the prayer for the execution of the deed of sale over the entire property. Suffice it to state that there was not even an iota of evidence presented by the plaintiffs to show that defendants also offered to sell to them the other half of the subject property. WHEREFORE, for failure of the plaintiffs to preponderantly prove their claims, the same are DENIED, and the instant complaint is hereby ordered DISMISSED. SO ORDERED. Paraaque City; January 31,2005."

The findings of fact of the Court of Appeals in the said case entitled sps. Pages vs. Estate of Cesar Yance and Maria Cristina Yance reads:
Sometime in July 1997, herein defendant-appellee Maria Cristina Yance offered to sell to plaintiff-appellant spuses Engr Andres and Nona Pages by virtue of a Special Power of Attorney, a residential lot, located at lot 16, block 9 Thomas Street, Multinational Village, Paraaque City covered by certificate of title No. 52170 with an area of 180 square meters. The lot was registered in the name of Cesar Yance, the late father of Maria Cristina Yance,
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plaintiff-appellant accepted the offer and the agreed purchase price was P5,000.00 per square meter.xxxx

The Court of Appeals decision continuous to state: After making eighteen (18) partial payments, plaintiffappellants wanted to pay the full purchase price of not only the 90 square meter portion of the property by said contract to sell but the whole 180 square meters thereof, but defendants-appellee, Maria Cristina could no longer be found. Hence plaintiff-appellants instituted complaint for a specific performance before the trial court, Paraaque City. The complaint was docketed as Civil Case No. 990241. Defendant-appellee, Maria Cristina Yance, upon motion of plaintiff-appellant was declared in default after the former failed to file any responsive pleading to the complaint. The case was then referred to the clerk of court Lilibeth O. Adaga, who was designated as commissioner for the presentation of evidence ex parte. Based on the commissioners report, the court a quo rendered a default judgment and ruled as follows:

3. Third Assigned Error. The court a quo erred in reversing the findings of facts of the Court of Appeals in the case entitled and docketed as CA GR CV No. 86145 that there is contract to sell between the estate of Yance and the defendants spouses Andres Pages. The finding of facts of the Court of Appeals are as follows:
Sometime in July 1997, herein defendant-appellee, Maria Cristina Yance, offered to sell to plaintiffsappellants, spouses Engr. Andes P. Pages and Nona Pages, by virtue of a Special Power of Attorney, a residential lot, located at Lot 16, Block 9, Thomas Street, Multinational Village, Paraaque City, covered by Transfer Certificate of Title No . 52170, with an area of 180 square meters. The lot was registered in the name of Cesar Yance, the late father of Maria Cristina Yance. Plaintiffs-appellants accepted the offer and the agreed purchase price was P5,500.00 per square meter.

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The Court of Appeals decision also raised the core issues to be resolved as follows:
The core issue to be resolved is whether or not the contact denominated as "Contract to Sell", which was entered by and between herein plaintiffs-appellants and defendants and defendant-appellee, Maria Cristina, is a contract to sell or contract of sale. In a contract to sell, the vendor reserves ownership of the property and is not to pass until full payment. Om the other hand, a contract is one of sale, absent any stipulation therein reserving title over the property to the vendee until full payment of the purchase price nor giving the vendor the right to unilaterally rescind the contract in case of non-payment. Thus in a contract of sale, the sale is absolute, in which title passes to the buyer upon delivery of the thing sold. In the instant case, herein plaintiffs-appellants argued that while their contract was denominated as contract to sell, it was really a contract of sale since there was no stipulation reserving ownership of the subject land until full payment of the purchase price, and because earnest money was given as part of the purchase price. xxx Upon compliance of all the condition required of the BUYER under this contract, The SELLER shall execute the requisite deed transferring ownership of the property to the formers name. Xxx One of the conditions in the contact is the full payment of the purchase price which is P495,000.00. Before the fulfillment of such condition, ownership over the thing sold retains with the seller, Maria Cristina Yance. We note that herein plaintiffs-appellants, spouses Andres Pages and Nona Pages, could not even categorically state the total amount of money that they had paid to the seller, Maria Cristina Yance, as would entitle the former to be transferred with ownership of the thing sold. The trial court found that herein plaintiffs-appellants paid only P489,400.00. We do not find any evidence to disturb such factual finding of the court a quo. Thus, be that as it may, the full purchase price has yet to be paid by herein plaintiff-appellants since they paid only P489,400.00, which is P5,600.00 short of the agreed price. Hence, the seller, herein defendant-appelee, Maria Cristina Yance still

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retains ownership over the property sold until full payment of the purchase price hereof. However, we note that the seller, Maria Cristina Yance, seems to have no more intention, without just cause, of continuing with her contract herein plaintiffsappellants, spouses Andres Pages and Nona Pages, as the former could no longer be located. The least that herein plaintiffs-appellants could do, for them to be entitled to specific performance, that is, that a contract of sale over the 90 square meter portion of the property be executed in their favor, is to make a consignation of the balance of the purchase price by depositing it at the disposal of judicial authority.

The above Court Rulings in the RTC and affirmed and undisturbed by the findings of the Court 0f Appeals show that Plaintiffs cause of action is barred by prior judgment under the doctrine of res judicata and in connection therewith, the Supreme Court has made the following pronouncements applicable to the instant case. a. Res Judicata refers to the rule of the final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or privies in all later suits on points and matters determined in the former suit. It extends only to the facts and condition as they existed at the time the judgment was rendered and the legal rights and relation of the parties fixed by the fact so determined. (Caina v. Court of Appeals, 238 SCRA 252 (1994). b. The doctrine of res judicata is more than a mere rule of law, more even that an important principle of public policy and it is not too much to say that it is a fundamental concept in the organization of every jural society. (Sumaong v. Regional Trial Court Br. XXXI, GUIIMBA, NUEVA ECIJA 215 SCRA 136 (1992). c. It is to the interest of the public that there should be an end to litigation by the parties over a subject and fairly adjudicated, and an individual should not be vexed twice for the same cause (Cartlet v. Court of Appeals. 275 SCRA 97 (1997). The principle of res judicata actually embraces two different concepts: (1) bar by former judgment and (2) conclusiveness of judgment. d. The doctrine of res judicata has two aspects: (a) the effect of a judgment as a bar to the prosecution of a second action upon the
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same claim, demand or cause of action; and (b) preclude relitigation of a particular fact of issues in another action between the same parties on a different claim or caused action. e. Bar by former judgment bars prosecution of a second action upon the claim, demand or cause of action, demand or cause of action while conclusive of action bars relitigation of facts or issues in another litigation between the same parties on a different claim or cause of action. (Calalang v. Register of Deeds, 231 SCRA 88 (1994). f. There is "bar by former judgment" when, between the first case where the judgment was rendered, and the second case where the judgment is invoked, there is identity of parties, subject matter and cause of action while there is "conclusiveness of judgment where there is only identity of parties but there is no identity of cause of action, the judgment being conclusive in the second case only as to those matters actually and directly controverted and determine, and not as to matters merely involved therein. (Islamic Directorate of the Philippines v. Court of Appeals, 272 SCRA 454 (1997). There is conclusiveness of judgment where between the first case in the judgment is rendered, the second case wherein such judgment is invoke, there is no identity of cause of action, the judgment being conclusive is the second case only as to those matter actually and directly controverted and determined and not as to matters merely involved therein. g. A party cannot evade the application of the rule of res judicata by adopting a different method of presenting his case. (Cartlet v. Court of Appeals, 195 SCRA 659 (1991). 4. Fourth Assigned Error. The court a quo erred in holding that plaintiff as the registered owner of the property has the better right to possess the property notwithstanding the fact that there is an adverse claim annotated at the back of the title respecting a contract to sell in favor of the defendants spouses Andres Pages, the existence of which is confirmed ruled by the Court of Appeals in said CA GR No. .
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While the case was dismissed because there is a balance of P5,600.00 in the payment of the purchase price, the dismissal does not mean that there is no contract to sell. There is a contract to sell but because there is a balance of P5,600.00 it did not give rise to the right to compel by specific performance defendant estate of Yance, that is why the Court of Appeals suggested consignation of the balance of P5,600.00 The dismissal clearly does not mean that the findings of the RTC Br. 195 as no longer affirmed by the Court of Appeals when it ruled that: On the contrary that finding of the coexistence of the said contract to sell remains but the prayer for the specific cannot be granted for the reason that there was a balance of P5,600.00. that is why the case for specific performance was dismissed. But the Regional Trial Court grievously erred when it recalled that because of the dismissal of the specific performance case there was contract to sell. Even though the case was dismissed, the notice of les pendens is proof that plaintiff-appellees claim that they do not know of the case as not correct. Notice of les pendens in notice to the whole world, including of the pending of the action. 5. The court a quo erred in ordering defendants to vacate the property in question, to pay plaintiff damages, attorneys fees and cost. The claim of defendants-appellants is valid and legal in the light of the foregoing reversible error committed by the Regional Trial Court. Hence, defendants-appellants should not be made to pay any form of damages. Defendants-appellants believe in good faith that they have a right to the reliefs for under the facts and the law on the following: a.) They have a right to rely of the finality of judgment of the Court of Appeals finding. The existence of the contract to sell between the estate of Yance and them. b.) No action has been brought to declare the said decision of the Court of Appeals null and void.
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c.) The instant case is not action to said decision null and void. This is but a collateral attack which the Regional Trial Court should not have allowed. d.) The CA decision affirm that the defendants-appellants have paid P495,000.00 with only a balance of P5,600.00.

Witness A. Pages: A : Well, she has a Special Power of Attorney. Atty. Aritao: : If your Honor please, this subject matter is already dethroning the Court of Appeals.

Atty. Aritao: : The summary of facts are already final. Is he Trying to reopen the Court of Appeals?

Atty. Allaga: : No I am just making an emphasis, Your Honor please, because, the fact is, the Decision was arrived at in view of the absence of Ma. Cristina Yance. So, no evidence was actually submitted in favor of Ma. Cristina Yance. And worse, Your Honor, our client really have absolutely no idea that there was indeed a case ongoing. Precisely, I marked the caption in the civil case because my clients were never informed. This is supposedly a case against the estate. So, I should have been directed against all the heirs, Your Honor please. But it was very clear that here, the defendants knowingly, as far we were concerned, Your Honor, the defendants knowingly transacted with Ma. Cristina Yance alone, despite the fact that they knew very well, Mr. Yance was already dead.

Court: : Are you saying that. is it your contention, plaintiffs, that you. You mean the finding of the Court of Appeals that there was a Contract to Sell?

Atty. Allaga: : No, Your Honor, but we are just saying that it was entered into after Mr. Cesar Yance has already died.

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Court: : Thats why. Atty. Allaga: : Yes, Your Honor. Court: : The validity, it seems that the line of questioning that you are propounding, you will be short of attacking of assailing the validity of that Contract to Sell. But the existence of the Contract to Sell, which is already a factual. It is already a res judicata. It should be admitted. Atty. Allaga: : Admitted Your Honor. Court: : But you are now trying to assail the validity of that? Atty. Allaga: : Yes, Your Honor. Court: : Is that your contention?

Atty. Allaga: : Yes, Your Honor, because, Your Honor please.

Court: : Okay, I will allow that, but just limit to the fact that the execution of the Contract to Sell transpired after the death of Cesar. Atty. Allaga: : Yes, Your Honor.

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Court: : If that is so, whatever conclusions that maybe arrived at, just leave it to the court, because that will be already a legal question. Atty. Allaga: : Yes, Your Honor, we submit, your Honor.

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