G.R. No.

L-77468 August 25, 1999

EDUARDO LUCENA and NAT!DAD "ARALE#, petitioners,
vs.
COURT O$ A""EAL# and RURAL %AN& O$ NAU'AN, NC., ROGELO "NEDA, (ARANTO %A'A,
"ATRCA ARA'A, %RAULO %AGU#, RE)NAL%O (A(%L and RA(ON GARCA, respondents.
*U#U(%NG, J.:
This is a petition for review of the Decision dated January 20, 1987 of the Court of Appeas in CA ! ".#.
C$ %o. &''2&!# entited Eduardo Lucena, et al. vs. Rural Bank of Naujan, Inc., et al. as we as its
#esoution dated (e)ruary 1&, 1987 denyin* petitioners+ ,otion for reconsideration.
1
The assaied
decision reversed the -ud*,ent of the then Court of (irst .nstance of /rienta 0indoro in Civi Case %o. #!
1002, 34duardo 5ucena, et al. vs. #ura 6an7 of %au-an, et al. 8#econveyance with Da,a*es93 and
dis,issed herein petitioners+ co,paint.
2
The factua antecedents are as foows:.
;etitioners ae*e they are the re*istered owners of a parce of and ocated at the )arrio of 0a*!asawan*
Tu)i*, 0unicipaity of %au-an, /rienta 0indoro, covered )y Transfer Certificate of Tite %o. T!21'12 of
the #e*istry of Deeds of /rienta 0indoro. /n /cto)er 29, 19&9, petitioner 4duardo 5ucena o)tained a
oan fro, the private respondent #ura 6an7 of %au-an, .nc. in the a,ount of three!thousand pesos
8;1,000.009 secured )y a rea estate ,ort*a*e constituted on said parce of and. /n /cto)er 1, 1970,
after the oan had ,atured, petitioners paid to the #ura 6an7 of %au-an, .nc., the su, of two!thousand si<
pesos and ninety centavos 8;2,00&.909 in partia satisfaction of their de)t, there)y eavin* a )aance of
one!thousand pesos 8;1,000.009 in its favor.1wphi1.nt
/n 0ay 7, 1972, after previous de,and )y the rura )an7 for the petitioners to sette the )aance of their
,atured oan went unheeded, the su)-ect property was e<tra-udiciay forecosed and sod at pu)ic
auction where the rura )an7 as hi*hest )idder ac=uired the property. ;rior to the auction sae, notices of
forecosure were posted in at east three conspicuous pu)ic paces in the ,unicipaity where the su)-ect
property was ocated, as indicated in the affidavit of postin* dated 0ay &, 1972.
1
%o notices were posted
in the )arrio where the property was ocated, nor were any pu)ished in a newspaper of *enera
circuation. The Certificate of >ae dated 0ay 7, 1972 issued )y private respondent Deputy >heriff 6rauio
6a*us was re*istered with the #e*istry of Deeds of /rienta 0indoro ony on January 9, 197'.
2
/n June 2&, 197', an affidavit of consoidation of ownership was e<ecuted )y the #ura 6an7 of %au-an
throu*h its ,ana*er, private respondent #o*eio ;. ;ineda. The affidavit of consoidation was
su)se=uenty re*istered )y private respondent #eynado 0a,)i in his capacity as actin* #e*ister of
Deeds on Juy 8, 197', under 4ntry %o. 1121'1. Transfer Certificate of Tite %o. T!21'12 in the na,e of
the petitioners was thus canceed and Transfer Certificate of Tite %o. T!&8'27 of the #e*istry of Deeds
of /rienta 0indoro was then issued in favor of the rura )an7 aso on Juy 8, 197'. Thereafter, on Juy 12,
197', a deed of sae was e<ecuted )y the rura )an7 throu*h its ,ana*er where)y the su)-ect property
was sod to private respondent spouses 0arianito 6a-a and ;atricia Ara-a, resutin* in the canceation of
TCT %o. T!&8'27 and the su)se=uent issuance of TCT %o. T!&8&80 in the na,e of said respondents.
>aid deed of sae dated Juy 12, 197' was accepted and re*istered )y private respondent #a,on ".
"arcia, then actin* #e*ister of Deeds of /rienta 0indoro.
'
/n January 12, 1977, petitioners fied a co,paint for reconveyance and da,a*es a*ainst private
respondents )efore the then Court of (irst .nstance of /rienta 0indoro, to recover the su)-ect property
fro, private respondents and to co,pe the atter to co,pensate the, for da,a*es and osses
suffered.
&
After tria, the courta uo pro,u*ated its decision dated >epte,)er 12, 1978, ruin* in su, that
there was no vaid forecosure sae of the su)-ect property. The dispositive portion thereof reads:
?@4#4(/#4, in view of the fore*oin* the Court )eieves and so hods that the preponderance of
evidence ,iitates in favor of the paintiffs and a*ainst the defendants, and the Court renders -ud*,ent, to
wit:
819 /rders the defendants 0arianito 6a-a and ;atricia Ara-a to reconvey the parce of and
re*istered in their na,e under TCT %o. T!&8&80 of the #e*ister of Deeds of /rienta 0indoro in
favor of herein paintiffs 4duardo 5ucena and %atividad ;araes, free fro, a iens and
encu,)rances, e<cept the re,ainin* unpaid )aance incudin* accrued interest thereon in favor
of the #ura 6an7 of %au-an, .nc.A
829 /rders the #ura 6an7 of %au-an, .nc. and its ,ana*er #o*eio ;ineda, -ointy and severay,
to pay the herein paintiffs actua da,a*es in the a,ount of ;17,'00.00 for unreaiBed rentas
fro, su)-ect propertyA
819 /rders the #ura 6an7 of %au-an, .nc. and its ,ana*er #o*eio ;ineda, -ointy and severay,
to pay herein paintiffs ,ora da,a*es in the a,ount of ;10,000.00A
829 /rders the #ura 6an7 of %au-an, .nc. and its ,ana*er #o*eio ;ineda, -ointy and severay,
to pay paintiffs attorney+s fees in the a,ount of ;',000.00, and to pay the costs of suit.
>/ /#D4#4D.
7
%ot satisfied with the -ud*,ent, )oth petitioners and private respondents eevated the case to the Court of
Appeas. /n January 20, 1987, the respondent court rendered its decision reversin* and settin* aside the
tria court+s -ud*,ent. .t rued in su, that 8a9 postin* of notices in the )arrio where the property is situated
is not re=uired, as a the aw re=uires is postin* in the ,unicipaity or city where the property is ocatedA
8)9 there is no need to pu)ish the notice of auction sae in a newspaper of *enera circuation, )ecause
the )aance of the oan was ony one!thousand pesos 8;1,000.009A 8c9 persona notice of the auction sae
to the petitioners was not re=uiredA 8d9 the tria court was correct in hodin* that the date of re*istration of
the sheriff+s certificate of sae and not the date of the sae itsef was the rec7onin* point for the start of the
one!year rede,ption period of the petitionersA and 8e9 the petitioners did not redee, their property within
the one!year period fro, the date of re*istration of the certificate of sae, and havin* ost their ri*ht of
rede,ption, cannot s=uir, their way out of their predica,ent )y as7in* for reconveyance of the su)-ect
property.
8
;etitioners now see7 recourse throu*h this petition. They assi*n the foowin* errors:
819 A6>4%C4 /( ;/>T.%" /( %/T.C4> .% T@4 6A##./ /( 0A"A>A?A%" TC6.", ?@4#4 T@4
5A%D .> 5/CAT4D, A> #4DC.#4D 6E #4;C65.C ACT %/. '919, #4%D4#4D %C55 A%D $/.D T@4
>A54 .% DC4>T./%.
829 ;C65.CAT./% ?A> A #4DC.>.T4 !INE "#$ N%N .% T@.> CA>4, 64CAC>4 T@4 A0/C%T /(
T@4 5/A% ?A> ;1,000.00A @4%C4, ;A#A"#A;@ 1, >4CT./% ' /( #4;C65.C ACT %/. 720, ?A>
%/T A;;5.CA654, 64CAC>4 T@4 5A? D/4> %/T >;4AF /( T@4 36A5A%C4 C%;A.D3 6CT T@4
3A0/C%T /( T@4 5/A%3.
819 T@4 ;#40ATC#4 A%D (#ACDC54%T C/%>/5.DAT./% /( /?%4#>@.; A%D 0A5.C./C>
.004D.AT4 >A54 /( T@4 5A%D .% DC4>T./% .% (A$/# /( 0A#.A%.T/ 6AJA A%D ;AT#.C.A
A#AJA 64(/#4 T@4 4G;.#AT./% /( T@4 ;4#./D /( #4D40;T./% C5/>4D T@4 D//# (/#
54"A5 #4D40;T./%A >/ T@AT A% ACT./% (/# #4C/%$4EA%C4, 64CA04 T@4 ;#/;4#
#404DE.
829 T@4 A((.DA$.T /( C/%>/5.DAT./% /( /?%4#>@.; @4#4.% ?A> %C55 A%D $/.D (/#
5ACF /( %/TA#.HAT./%.
9
?e find that the pertinent issues to )e resoved are: 819 whether or not a vaid forecosure sae of the
su)-ect property was conducted and 829 whether or not reconveyance and da,a*es is the proper re,edy
avaia)e to petitioners.
?ith respect to the first issue, this Court has rued that faiure to co,py with statutory re=uire,ents as to
pu)ication of notice of auction sae constitutes a -urisdictiona defect which invaidates the sae.
10
4ven
si*ht deviations therefro, are not aowed.
11
>ection ' of #epu)ic Act %o. 720 as a,ended )y #epu)ic
Act %o. '919 provides:
12
The forecosure of ,ort*a*es coverin* oans *ranted )y rura )an7s sha )e e<e,pt fro, the
pu)ication in newspapers were the tota a,ount of the oan, incudin* interests due and unpaid,
does not e<ceed three thousand pesos. .t sha )e sufficient pu)ication in such cases if the
notices of forecosure are posted in at east three of the ,ost conspicuous pu)ic paces in
the &unicipalit' and (arrio were the land &ort)a)ed is situated durin* the period of si<ty days
i,,ediatey precedin* the pu)ic auction. ;roof of pu)ication as re=uired herein sha )e
acco,pished )y affidavit of the sheriff or officer conductin* the forecosure sae and sha )e
attached with the records of the case: . . . . 8e,phasis suppied9
.n the case at )ar, the affidavit of postin* e<ecuted )y the sheriff states that notices of the pu)ic auction
sae were posted in three 819 conspicuous pu)ic paces in the ,unicipaity such as 819 the )uetin )oard
of the 0unicipa 6uidin* 829 the ;u)ic 0ar7et and 819 the 6us >tation. There is no indication that notices
were posted in the )arrio where the su)-ect property ies. Ceary, there was a faiure to pu)ish the
notices of auction sae as re=uired )y aw.
.n Ro*as vs. +ourt of $ppeals,
11
this Court has rued that the forecosure and pu)ic auction sae of a
parce of and forecosed )y a rura )an7 were nu and void when there was faiure to post notices of
auction sae in the )arrio where the su)-ect property was ocated. This Court finds that the sa,e situation
o)tains in the case at )ar. (urther sti, there was a faiure on the part of private respondents to pu)ish
notices of forecosure sae in a newspaper of *enera circuation. >ection ' of #.A. 720 as a,ended )y
#.A. '919 provides that such forecosures are e<e,pt fro, the pu)ication re=uire,ent when the tota
a,ount of the oan incudin* interests due and unpaid does not e<ceed three!thousand pesos
8;1,000.009. The aw ceary refers to the tota a,ount of the oan aon* with interests and not ,erey the
)aance thereof, as stressed )y the use of the word 3tota.3 At the ti,e of forecosure, the tota a,ount of
petitioners+ oan incudin* interests due and unpaid was ;1,00&.90. ;u)ication of notices of auction sae
in a newspaper was thus necessary.
.n i*ht of private respondents+ faiure to co,py with the statutory re=uire,ents of notice and pu)ication,
we rue that the forecosure and pu)ic auction sae of petitioners+ property are nu and void. @ence, the
#ura 6an7 of %au-an did not ac=uire vaid tite to the property in =uestion. This reversa of the Court of
Appeas disposes of the other errors assi*ned )y petitioners.
Anent the second issue, the a)ove concusion re=uires a deter,ination of whether or not petitioners are
entited to a reconveyance of their property. .f the property has not yet passed to an innocent purchaser
for vaue, an action for reconveyance is sti avaia)e.
12
.t is a condition sine ua non for an action for
reconveyance to prosper that the property shoud not have passed to the hands of an innocent purchaser
for vaue.
1'
@e is considered an innocent purchaser who ac=uired the property for a vaua)e
consideration not 7nowin* that the tite of the vendor or *rantor was nu and void.
1&
"ood faith or its
a)sence ,ust thus )e esta)ished on the part of spouses 0arianito 6a-a and ;atricia Ara-a at the ti,e
that they purchased the su)-ect property fro, the #ura 6an7 of %au-an.
"ood faith, or the ac7 of it, is in the ast anaysis a =uestion of intentionA )ut in ascertainin* the intention
)y which one is actuated on a *iven occasion, we are necessariy controed )y the evidence as to the
conduct and outward acts )y which aone the inward ,otive ,ay, with safety, )e deter,ined.
17
To
deter,ine whether or not the 6a-a spouses were in *ood faith at the ti,e they purchased the su)-ect
property fro, the #ura 6an7 of %au-an thus entais a review of the evidence on record.
The tria court concuded that 0arianito 6a-a and ;atricia Ara-a were purchasers in )ad faith. The tria
court noted that when 0arianito 6a-a verified the tite of the su)-ect property at the rura )an7, he ,ust
have noticed that the certificate of sae was re*istered with the /ffice of the #e*ister of Deeds ony on
January 9, 197', so that he is presu,ed to 7now that the petitioners had at east one year fro, that date
or up to January 8, 197& to redee, the su)-ect property.
18
.t is a we!setted rue that a purchaser cannot cose his eyes to facts which shoud put a reasona)e ,an
upon his *uard, and then cai, that he acted in *ood faith under the )eief that there was no defect in the
tite of the vendor. @is ,ere refusa to )eieve that such defect e<ists, or his wifu cosin* of his eyes to
the possi)iity of the e<istence of a defect in his vendor+s tite, wi not ,a7e hi, an innocent purchaser for
vaue, if it afterwards deveops that the tite was in fact defective, and it appears that he had such notice of
the defect as woud have ed to its discovery had he acted with that ,easure of precaution which ,ay
reasona)y )e re=uired of a prudent ,an in a i7e situation.
19
.n the case at )ar, 0arianito 6a-a testified on cross!e<a,ination that $ictor AtienBa, 6a-a+s cousin and
petitioners+ tenant on the su)-ect property, infor,ed hi, of the rura )an7+s intention to se the and in
=uestion.
20
@e said that fro, the ti,e this infor,ation was reayed to hi, unti the e<ecution of the deed
of sae )y the )an7 in favor of the 6a-a spouses on Juy 12, 197', a period of a)out haf a year
eapsed.
21
@e further stated that upon earnin* fro, $ictor AtienBa that the property was )ein* sod, he
i,,ediatey went to the rura )an7 to verify this infor,ation, as we as ascertain if the and was
tited.
22
6a-a aso said that )efore the deed of sae was e<ecuted on Juy 12, 197', he ,ade his offer to
)uy the property fro, the )an7 a)out one ,onth )efore said date.
21
/n direct e<a,ination, however, 6a-a
cai,ed that he verified the tite to the su)-ect property to )e in the rura )an7+s na,e )efore the sae was
effected.
22
(ro, the records, it appears that tite to the property was issued in the rura )an7+s na,e ony on Juy 8,
197', when the )an7+s affidavit of consoidation of ownership dated June 2&, 197' was re*istered with the
#e*istry of Deeds of /rienta 0indoro.
2'
>aid re*istration was the operative act to pro,pt the #e*ister of
Deeds to cance the tite in the na,e of petitioners and to issue a new one in the na,e of the rura )an7.
@ence, if 0arianito 6a-a cai,s to have offered to )uy the property one ,onth )efore Juy 12, 197', or
so,eti,e in the ,idde of June of that year, he ,ust have noticed that the tite was not yet in the rura
)an7+s na,e. 0ore so, he aso woud have noticed that the tite was not yet in the )an7+s na,e when he
verified the status of the property and the tite thereto i,,ediatey after $ictor AtienBa tod hi, that the
property was )ein* sod, which, accordin* to hi,, was a)out haf a year )efore Juy 12, 197'.
?hat 6a-a shoud have noticed, if we foow his own chronoo*ica esti,ates, was that the tite was sti in
the petitioners+ na,e when he verified the status of the and in =uestion. Thus, he ,ust have seen that
the certificate of auction sae was re*istered ony on January 9, 197'. As the tria court has said, he is
presu,ed )y aw to 7now that the petitioners had one year fro, this date or unti January 8, 197& to
redee, the su)-ect property.
.n addition, 6a-a was co,petey aware of the fact that $ictor AtienBa was a tenant of the petitioners.
@ence, at the ti,e the property in =uestion was )ein* sod to hi, )y the rura )an7, possession thereof
was with the petitioners, e<ercised throu*h their tenant $ictor AtienBa. .n !antia)o vs. +ourt of
$ppeals,
2&
we cited ,e -u.&an, /r. vs.+ourt of $ppeals 81'& >C#A 701 I1987J9:
The faiure of appeees to ta7e the ordinary precautions which a prudent ,an woud have ta7en
under the circu,stances, speciay in )uyin* a piece of and in the actua, visi)e and pu)ic
possession of another person, other than the vendor, constitutes *ross ne*i*ence a,ountin* to
)ad faith.
.n this connection, it has )een hed that were, as in this case, the and sod is in the possession of
a person other than the vendor, the purchaser is re=uired to *o )eyond the certificate of tite and
,aI7Je in=uiries concernin* the ri*hts of the actua possessor. 8.ncaa vs. 0endoBa, CA!".#. %o.
11&77!#, %ove,)er 9, 19&'A De Jesus vs. #evia, CA!".#. %o. 11'&2!#, /cto)er ', 19&'A
0arteino vs. 0ani7an, CA!".#. %o. 12792!#, June 22, 19'&9
< < < < < < < < <
/ne who purchases rea property which is in the actua possession of another shoud, at east
,a7e so,e in=uiry concernin* the ri*ht of those in possession. The actua possession )y other
than the vendor shoud, at east put the purchaser upon in=uiry. @e can scarcey, in the a)sence
of such in=uiry, )e re*arded as a )ona fide purchaser as a*ainst such possessors3 8Conspecto
vs. (ruto, 11 ;hi. 1229.3
< < < < < < < < <
0arianito 6a-a testified on cross!e<a,ination that he was wor7in* for a)out haf a year in another area
a)out a hundred ,eters away fro, the su)-ect property )efore the sa,e was offered to hi, for
sae.
27
@er thus had visua notice that petitioners+ tenant $ictor AtienBa was wor7in* on the and in
=uestion. @e aso earned fro, AtienBa that petitioner 4duardo 5ucena was the andord of the for,er.
28
.n
fact, prior to the date that he ac=uired the property, 6a-a instructed AtienBa to infor, said petitioner that
the rura )an7 was sein* the property to hi,.
29
6a-a, however, never co,,unicated directy with
petitioner 4duardo 5ucena, nor did he receive any response co,in* fro, said petitioner.
10
@e did earn,
however, that 5ucena scoded $ictor AtienBa when the atter went to see hi,, indicatin* that he was
aware of said petitioner+s aversion to the sae of the property )y the rura )an7.
11
A thin*s considered, 0arianito 6a-a did not ,a7e any reasona)e in=uiry re*ardin* the status of the and
in =uestion, despite )ein* aware that the property was sti in the possession of the petitioners. @e did not
even ,a7e any effort to co,,unicate directy with petitioner 4duardo 5ucena. A he did was to instruct
$ictor AtienBa to infor, 5ucena of the proposed sae of the property. @e did not instruct AtienBa, however,
to ,a7e in=uiries concernin* the status of the property. (urther,ore, 6a-a+s cai, that he saw that tite to
the property was in the na,e of the rura )an7 prior to the sae is not credi)e. "rantin* ar)uendo that the
tite was in the na,e of the rura )an7 when he first saw it, he nonetheess had notice that the possession
of the property was with persons other than the vendors thereof. .t was thus incu,)ent upon hi, to oo7
)eyond the tite to the su)-ect property and ,a7e the necessary in=uiries. This he ne*ected to do.
?hen the 6a-a spouses purchased the su)-ect property fro, the rura )an7 on Juy 12, 197', they did so
we within the one!year rede,ption period of petitioners. .n doin* so, not ony did said respondents have
notice of a defect in the tite of the rura )an7 over the su)-ect property, )ut )y purchasin* the atter, they
aso cosed the door on the petitioners+ ri*ht to redee, it. Accordin*y, we adopt the findin* of the ower
court that said respondents purchased the su)-ect property in )ad faith. ?e rue that petitioners are
entited to a reconveyance of the property as it has not yet passed to an innocent purchaser for vaue.
.n their petition, petitioners aso pray that this Court render a decision pursuant to their prayers as
appeants in the Court of Appeas. 4ssentiay, petitioners i,pored the respondent court to raise the
a,ount of da,a*es awarded the, )y the tria court and to find private respondents 6rauio 6a*us,
#eynado 0a,)i and #a,on "arcia ia)e for da,a*es as we. ;etitioners aso as7ed for the incusion
of e<e,pary da,a*es and iti*ation fees in the award.
?e find that there is no su)stantia reason to ,odify the tria court+s award of da,a*es. There is no
convincin* proof to support petitioners+ ae*ations that private respondents 6rauio 6a*us, #eynado
0a,)i and #a,on "arcia perfor,ed their duties as Deputy ;rovincia >heriff and #e*isters of Deeds
with unawfu intent and in )ad faith. (urther,ore, petitioners+ ae*ations as to the a,ount of unreaiBed
rentas due the, as actua da,a*es are ,ere assertions unsupported )y factua evidence. .n deter,inin*
actua da,a*es, the court cannot rey on ,ere assertions, specuations, con-ectures or *uesswor7 )ut
,ust depend on co,petent proof and on the )est evidence o)taina)e re*ardin* the actua a,ount of
oss.
12
There is aso no sound )asis for increasin* the award of ,ora da,a*es. The we!entrenched rue is that
the *rant of ,ora da,a*es depends upon the discretion of the court )ased on the circu,stances of each
case.
11
?e find that the tria court e<ercised its sound discretion in awardin* actua and ,ora da,a*es
as it did to the petitioners, as we as in not *rantin* the e<e,pary da,a*es for ac7 of sufficient )asis.
?@4#4(/#4, the petition is here)y "#A%T4D. The decision of the Court of Appeas dated January 20,
1987 is here)y >4T A>.D4A and the decision of the C(. of /rienta 0indoro dated >epte,)er 12, 1978, is
here)y #4.%>TAT4D and A((.#04D.1wphi1.nt
Costs a*ainst private respondents.
>/ /#D4#4D.
Bellosillo, 0endo.a and Buena, //., concur.
$ootnot+s
1
Rollo, p. 18!2'.
2
#ecords, pp. 27!'8.
1
Id. at 29!'0.
2
Id. at '0.
'
Id. at 120.
&
Id. at 7!1&.
7
CA Rollo, p. 28 878!799.
8
!upra, note 1 at 21!21.
9
Id. at 7.
10
0asanto #ura 6an7, .nc. vs. Court of Appeas, 202 >C#A 7'2, citin) 6or-a vs. Addison, 22
;hi. 89' and Ca,po,anes vs. 6artoo,e and "er,an K Co., 18 ;hi. 808.
11
Ta,)untin* vs. Court of Appeas, 1&7 >C#A 1&.
12
An Act ;rovidin* for the Creation, /r*aniBation and /peration of #ura 6an7s, and for other
purposes.
11
221 >C#A 729.
12
Ar,a,ento vs. "uerrero, 9& >C#A 178, 182, citin) Ce,ente vs. 5u7)an, '1 ;hi. 911.
1'
%o)e-as and %o)e-as, #4".>T#AT./% /( 5A%D T.T54> A%D D44D>, 19& 81992 ed.9.
1&
#ivera vs. 0oran, 28 ;hi. 81&.
17
5eun* Eee vs. >tron* 0achinery Co., 17 ;hi. &22, &2'.
18
#ecords, p. '7.
19
!upra, note 17 at &'1.
20
T>%, 0ay 10, 1978, p. 9.
21
I(id.
22
Id. at 9!10.
21
Id. at 10.
22
Id. at '.
2'
!upra, at note '.
2&
227 >C#A 11&, 12'.
27
!upra, note 20.
28
!upra, note, 22.
29
!upra, note 20 at 11.
10
I(id.
11
!upra, note 20 at 12.
12
6arBa*a vs. Court of Appeas, 2&8 >C#A 10', 111!112.
11
>in*son vs. Court of Appeas, 282 >C#A 129, 1&1.