Doctrine of Lis Pendens

SUPREME COURT REPORTS ANNOTATED VOLUME 006 12/05/2017, 4*20 PM
490 SUPREME COURT REPORTS ANNOTATED

Garcia vs. Fenoy
ANNOTATION
DOCTRINE OF LIS PENDENS
I. Generally
A. Definition.Lis pendens is a Latin term which

literally means a pending suit. (Black, Law Dictionary,
1081 [1957].) It is similar to litispendencia or litispen-
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Garcia vs. Fenoy
dency in Spanish Law which is the condition of a suit

pending in a court of justice. (2 Bouvier, Law Dictionary &
Concise Encyclopedia, 2037 [1914].)
The doctrine of lis pendens, as usually understood, is
the control which a court has over the property involved in
a suit during the continuance of the proceedings, and until
its final judgment has been rendered therein. (2 Bouvier,
supra at 2032.) In Spanish Law, in order to keep the
subject matter of the litigation within the power of the
court until the judgment or decree is entered x x x it is
necessary that the judge be competent to take cognizance
of the cause; that the defendant has been duly cited to
appear, and fully informed, in due time and form of the
nature of the demand or that, if he has not, it has been
through his own fault or fraud. (2 Bouvier, supra at 2037.)
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Notice of lis pendens is a notice filed for the purpose

of warning all persons that the title to certain property is
in litigation, and that, if they purchase the defendants
claim to the same, they are in danger of being bound by an
adverse judgment. (Black, supra.) It is said to be a general
notice to all the world x x x but it has been said that it is
not correct to speak of it as a part of the doctrine of
notice; the purchaser pendente lite is affected, not by
notice, but because the law does not allow litigating
parties to give to others, pending the litigation, rights to
the property in dispute so as to prejudice the opposite
party. The doctrine rests upon public policy, not notice x x
x. (2 Bouvier, supra at 2032.)
B. Statutory Provisions.The subject of lis pendens is
dealt with expressly in Rule 14, Section 24, of the new
Rules of Court. (Bisaya Land Trans. Co., Inc. v. Cuenco, 23
SCRA 102, 104.) The first paragraph of this section is an
exact reproduction of Rule 7, Section 24 of the old Rules of
Court which in turn was taken from Section 401 of Act No.
190. The second paragraph is a new provision.
Lis pendens is also dealt with indirectly in Section 79
of the Land Registration Act, otherwise known as Act No.
496 as amended. (Bisaya Land Trans. Co., Inc. v. Cuenco,
supra.)
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Garcia vs. Fenoy
C. Distinguished With Adverse Claim.The two remedies

of adverse claim and notice of lis pendens are not
contradictory or repugnant to one another. The existence of
one does not automatically nullify the other. (Ty Sin Tei v.
Lee Dy Piao, [1958] 103 Phil. 858, 868.)
Both registrations have their own characteristics and
requisites. They are intended to protect the interest of a
claimant by posing as notices and caution to those dealing
with the property that the same is subject to a claim. (Ty
Sin Tei v. Lee Dy Piao, supra.)
But while a notice of lis pendens may be cancelled
under certain circumstances (Victoriano v. Rovira, et al.,

[1930] 55 Phil. 1000, 1003-1004; Municipal Council of
Paraaque, Rizal v. Court of First Instance, et al., [1940] 70
Phil. 363, 364), the same is not true in a registered adverse
claim. It may be cancelled only in one instance, that is,
after the claim is adjudged invalid or unmeritorious by the
court acting either as a land registration court or one of
general jurisdiction while passing upon a case before it
where the subject of the litigation is the same interest or
right which is being secured by the adverse claim. In other
words, the annotation of adverse claim is more permanent
than the notice of lis pendens because the former cannot
be cancelled without adequate hearing and proper
disposition of the claim. (Ty Sin Tei v. Lee Dy Piao, supra at
868-869.)
D. Purpose.Lis pendens has been conceived to protect
the real rights of the party causing the registration
thereof. With the notice of lis pendens duly recorded, the
registrant of the notice could rest secure that he would
not lose the property or any part of it. (Valmonte, et al. v.
Villaroman, et al., [1928] 52 Phil. 221, 228.)
Notice of lis pendens serves as a warning to a
prospective purchaser or encumbrancer that the particular
property is in litigation; and that he should keep his hands
off the same, unless of course he intends to gamble on the
results of the litigation. (Natao, et al. v. Esteban, et al., 18
SCRA 481, 485-486 citing Jamora v. Duran, et al., [1949]
69 Phil. 3, 11.)
The main purpose of the rule on lis pendens is to keep
the subject matter of litigation within the power of the
court until the litigation is over. (Bias, et al. v. Hon.
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Garcia vs. Fenoy
Muoz-Palma, et al., L-15689, April 29, 1960, 58 O.G. No.

32, 5418, 5421 citing Diaz v. Hon. Perez, et al., [1958] 103
Phil. 1023, 1026.) In other words, the purpose is to hold
the property within the jurisdiction and control of the court
pending determination of the controversy, thereby

preventing third persons from acquiring such interests
therein as would preclude giving effect to the judgment x x
x. (Diaz v. Hon. Perez, et al., supra.) Or, as said in one
case, [t]he notice is therefore intended to be a warning to
the whole world that one who buys the property does so at
his own risk. This is necessary in order to save innocent
third persons from any involvement in any future litigation
concerning the property. (Rehabilitation Finance Corp. v.
Morales, [1957] 101 Phil. 171, 175-176.)
E. Who May Register Notice of Lis Pendens; Time and
Place of Filing Notice.Section 24 of Rule 14 of the new
Rules of Court authorizes the plaintiff, at the time of filing
the complaint, and the defendant, at the time of filing his
answer when affirmative relief is claimed in his answer
(Bisaya Land Trans. Co., Inc. v. Cuenco, supra at 105), or at
anytime afterwards, to record in the office of the Register
of Deeds of the province in which the property is situated a
notice of the pendency of the action, containing the names
of the parties and the object of the action or defense, and a
description of the property in that province affected
thereby.
Under the former practice, there was no lis pendens
until the defendant had answered the complaint. (Quiros v.
Tan-Guinlay, [1906] 5 Phil. 675, 678.)
F. Entry in Day Book is Sufficient to Constitute
Registration.The registration of notice of lis pendens is
an involuntary registration such as an attachment, levy on
execution, and the like, and its entry in the Day Book of
the Register of Deeds is sufficient notice to all persons of
such adverse claim. (Tirona, et al. v. Lapuz & Kerr, L-
12328, Sept. 30, 1960 citing Levin v. Bass, et al., [1952] 91
Phil. 419, 437; Villasor v. Camon, et al., [1951] 89 Phil.
404.)
It is not necessary that the notice of lis pendens be
annotated at the back of the owners certificate of title.
Such
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Garcia vs. Fenoy
annotation is only necessary in voluntary transactions.

(Tirona, et al. v. Lapuz & Kerr, supra citing Philippine
National Bank v. Javellana, [1953] 92 Phil. 525.) The
notice should, of course, be annotated on the back of the
corresponding original certificate of title, but this is an
official duty of the Register of Deeds which may be
presumed to have been regularly performed. (Ibid.)
The syllabus of the decision of the Supreme Court in
Pineda v. Santos, (1932) 56 Phil. 583, that the notice of lis
pendens not having been noted on the duplicate certificate
of title of the owner, said notice is without legal effect
against a third person as notice of the pendency of the
case between the plaintiff and the defendants over the land
in litigation does not reflect the true doctrine laid down in
the body of that decision. That decision reiterated the
doctrine enunciated in Atkins, Kroll & Co. v. Domingo,
(1924) 46 Phil. 362, holding that the effect of filing notice
of lis pendens is to charge the stranger with notice of the
particular litigation referred to in the notice; and if the
notice is effective, a third person who acquires the
property affected by the lis pendens takes subject to the
eventuality of the litigation. (Jamora v. Duran, et al.,
supra at 11.)
That the entry or memorandum in the Day Book is not
sufficient in form to constitute a notice of lis pendens
cannot be raised for the first time on appeal. (Tirona, et al.
v. Lapuz & Kerr, supra.)
Once the notice of the pendency of the action has been
duly noted, it shall be sufficient to register the judgment or
decree in such action within sixty (60) days after the
rendition thereof. (Section 79, Act No. 496, as amended.)
This does not mean that if the judgment is not registered
within sixty (60) days the notice of lis pendens duly
registered will not be binding. The judgment will still bind
the parties to the suit and their successors in interests.
(Selph v. Gliceria Vda. de Aguilar, L-13465, March 29,
1960.)
G. Jurisdiction of the Register of Deeds, Land
Registration Commissioner, and the Court of First Instance
over the Issue of Registrability of Notice.Section 72 of
the Land Registration Act imposes upon the Register of
Deeds
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Garcia vs. Fenoy
the duty, within 72 hours from the presentation of an

involuntary instrument such as a notice of lis pendens
for registration, to request or require the registered owner
to send or produce his duplicate certificate in order to make
thereon a memorandum of the attachment, lien, adverse
claim or notice of lis pendens. (Ramirez v. Causin, et al.,
[1957] 101 Phil. 1009, 1014-1015.)
It is but natural that the registered owner will not
willingly present or produce his duplicate certificate of title
or at least delay his production as long as possible. For that
reason, the law does not require him to present the
duplicate certificate of title and considers the annotation
of an involuntary instrument such as a notice of lis
pendens upon the entry book as sufficient to affect the real
estate to which it relates. (Ramirez v. Causin, et al., supra.)
Where the registered owner disagrees with the Register
of Deeds as to the registrability of a notice of lis
pendens, the remedy of the Register of Deeds is to report
the matter to the Court of First Instance which shall order
the surrender by the owner of the duplicate certificate of
title in question for the annotation of lis pendens. There is
no need for the Register of Deeds to refer the matter to the
Land Registration Commissioner by way of consulta if the
Register of Deeds has no doubt as to the registrability of
the annotation or memorandum of lis pendens that he has
to make. (Register of Deeds of Manila v. Magdalena Estate,
Inc., [1959] 105 Phil. 734.)
Section 4 of Republic Act No. 1151, formerly Section 200
of the Revised Administrative Code, provides that where
the Register of Deeds is in doubt as to the proper step to be
taken, or when the party in interest does not agree with
said Register of Deeds, the matter must be decided by way
of consulta by the Land Registration Commissioner.
(Register of Deeds of Manila v. Magdalena Estate, Inc.,
supra at 737.)
Interpreting the expression or where any party in
interest does not agree, the Supreme Court said that the
phrase x x x is not in itself an independent requisite
whereby a matter must be brought in consulta, but that
this disagreement must arise from the doubt existing in
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Garcia vs. Fenoy
the mind of the Register of Deeds by reason of which he

has not as yet taken any step or acted upon the registration
sought for, because if the Register of Deeds has no doubt as
to the step he has to take or memorandum he has to make,
then there would be no occasion for the party in interest to
disagree. (Register of Deeds of Manila v. Magdalena
Estate, Inc., supra at 739.)
Where the Register of Deeds did not entertain any
doubt as to the registrability of the notice of lis pendens
presented to him for registration and he did not hesitate to
annotate the same on the original of the Transfer
Certificate of Title in question; in fact, after recording the
lis pendens he forthwith sent a letter to the registered
owner requesting the submission of the owners duplicate
certificate of title for annotation purposes, it was held that
Section 4 of Republic Act No. 1151 did not apply. The
Register of Deeds could report the matter right away to the
Court of First Instance pursuant to Section 72 of the Land
Registration Act upon the refusal of the registered owner
to submit his owners copy of the title. (Register of Deeds of
Manila v. Magdalena Estate, Inc., supra at 740.)
If at all, the Commissioner of Land Registration may
have some concurrent, but not exclusive, jurisdiction on the
matter; and were we to interpret strictly the provision of
Section 72 of the Land Registration Act, it is only the
Court of First Instance that could compel the herein
appellant to surrender its duplicates of the certificates in
question to the Register of Deeds for the purposes already
statedannotation of lis pendensfor, we believe that
Section 72 above quoted has not been repealed by Republic

Act No. 1151, the repealing clause of which only refers to
existing laws, or parts thereof that may be inconsistent
therewith, and certainly Section 72 of Act 496 is not
inconsistent with Republic Act No. 1151. (Register of
Deeds of Manila v. Magdalena Estate, Inc., supra.)
II. Actions Where Lis Pendens is Proper
A. Action Must Affect the Title or Right of Possession of

Real Property.In order that the notice of lis pendens
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Garcia vs. Fenoy
will be registered, the action must affect the title or right of

possession of real property. (Section 24, Rule 14, new Rules
of Court; Section 79, Act No. 496, as amended; Bisaya
Land Trans. Co., Inc. v. Cuenco, supra; Saavedra v.
Martinez, et al., [1933] 58 Phil. 767.)
Notice of lis pendens may be made in the following
cases:
1. Action to recover possession of real estate (Section

79, Act No. 496; Section 24, Rule 14, new Rules of
Court);
2. Action to quiet title thereto (Section 79, Act No.
496);
3. Action to remove clouds upon the title thereof
(Section 79, Act No. 496);
4. Action to partition the real property (Section 79,
Act No. 496); and,
5. Any other proceeding of any kind in court affecting
either title to real estate, the use or occupation
thereof, or the buildings thereon (Section 79, Act
No. 496; Section 24, Rule 14, new Rules of Court).
Lis pendens cannot be notated in the following instances:
1. Attachments (Section 79, Act No. 496, as amended);

2. Levies of execution (Section 79, Act No. 496, as
amended);
3. Proceedings for the probate of wills (Section 79, Act
No. 496, as amended);
4. Proceedings for the administration of estates of
deceased persons in the Court of First Instance
(Section79, No. Act 496, as amended); and,
5. Actions which are purely claims for money
judgments. (Biglangawa & Espiritu v. Constantino,
et al., L-9965, Aug. 29, 1960.)
B. Other Cases Where Notice is Proper.The use of the

word action in Section 24 of Rule 14, new Rules of Court,
and Section 79 of Act No. 496, as amended, does not imply
that both sections apply only to actions and not to special
proceedings. (Diaz v. Hon. Perez, et al., supra at 1026-27.)
The said sections were not intended to be an exclusive
enumeration of cases where notice of lis pendens may be
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Garcia vs. Fenoy
made. Indeed, cases have held annotation to be proper in

other circumstances where equity and general convenience
would make lis pendens appropriate. (Diaz v. Hon. Perez.,
et al., supra.)
The annotation of lis pendens was allowed in the
following cases:
1. Receivership proceedings involving realty (Diaz v.

Hon. Perez, et al., supra, citing 34 Am. Jur. 378,
379);
2. Lunacy proceedings including guardianship
proceedings instituted to declare a person
incompetent to dispose of his real properties due to
advanced age and weak mental and physical
condition, considering that should he be declared
incompetent, transactions entered into by him will

be or might be adversely affected (Diaz v. Hon.
Perez, et al., supra, citing Corpus Juris Secundum);
3. An action which appears to be in personam in so far
as it purports to establish a claim against a definite
person but also partakes of the nature of a real
action in so far as a favorable judgment would in
effect adjudicate to plaintiff one-third of all the
properties involved including real properties.
(Garchitorena v. Register of Deeds of Camarines
Sur, L-9731, May 11, 1957, 101 Phil. 1207 [unrep.]);
4. Action for accounting, dissolution, liquidation and
determination of the plaintiffs participation in
terms of percentage in the defendant corporation if
the complaint seeks not only the accounting of all
the transactions and funds of the corporation but
also of all its properties, including the titled lands
in question. (Register of Deeds of Manila v.
Magdalena Estate, Inc., supra at 730-741.) Compare
with Bisaya Land Trans. Co., Inc. v. Cuenco, supra,
where there was no question as to the title to or
right of possession of the defendant corporation on
the lands sought to be subjected to notice of lis
pendens.
C. Cases Where Lis Pendens is Not Proper.The

annotation of lis pendens was held not proper in the
following cases:
1. Action by wife against the husband for support and
accounting of the conjugal partnership property seeking
delivery to the wife of her corresponding share of the pro-
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Garcia vs. Fenoy
ceeds thereof. (Saavedra v. Martinez, et al., supra);

2. Testamentary execution. (Register of Deeds of
Pampanga v. Mercado, [1941] 72 Phil. 353);
3. Action for recovery of fixed amounts of

underpayments of fees and sales commissions as
exclusive agent to sell the subdivision lots owned by
the defendant. (Biglangawa & Espiritu v.
Constantino, et al., supra);
4. Motion for intervention for enforcement of a sum of
money judgment. (Somes v. Government, [1935] 62
Phil. 432, 442-43);
5. Petition for quo warranto filed by the Solicitor
General for the dissolution of the corporation where
the only issue raised is the propriety of the
dissolution of the corporation. (Bisaya Land Trans.
Co., Inc. v. Cuenco, supra.) Compare with Register
of Deeds of Manila v. Magdalena Estate, Inc.,
supra, where the complaint for dissolution was held
to be a real action since the plaintiffs claimed that
they were entitled to 25 per cent of all the assets of
the defendant corporation, including the properties
covered by the notice of lis pendens. In the
Bisaya Land Trans. Co. case, the corporation was
admittedly the owner of all the properties including
the lands sought to be covered by the notice of lis
pendens and until the corporation was dissolved,
no question as to the title or possession thereof will
arise vis-a-vis the stockholders thereof.
In suits for dissolution of a corporation, the fact that in

case the corporation is dissolved its assets including the
real properties in question, will be liquidated and
distributed among the stockholders after paying off the
creditors, does not convert the proceeding into a real action
involving the title to the lands so as to justify the notation
of lis pendens. The rights of the stockholders to the assets
will arise only after dissolution of the corporation, and
even then, they cannot individually lay claim to any
particular property or any part thereof as their own except
as a result of the liquidation. The shareholders therefore
have no title or possessory right to protect by the notice.
(Bisaya Land Trans. Co., Inc. v. Cuenco, supra.)
The very purpose of the procedural remedy of lis
pendens circumscribes its availability to real actions
where
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Garcia vs. Fenoy
the title to or possession of real property is directly

involved. Thus, a purchaser of property involved in an
action may lose the same to the winning party therein by
virtue of the notice of lis pendens made prior to the
purchase. This result cannot conceivably arise in an action
for dissolution filed by the Government through the
Solicitor General with a cross-claim filed by a stockholder
where the ownership of the corporation on the lands
sought to be covered by the notice is admitted. The title or
right to possess the said properties subject of the lis
pendens is nowhere in issue. (Bisaya Land Trans. Co., Inc.
v. Cuenco, supra.)
III. Effect of Registration of Notice of Lis Pendens
A. Amounts to Notice of the Dispute Over the Land in

Litigation.The effect of filing a notice of lis pendens is
to charge the stranger with notice of the particular
litigation referred to in the notice; and if the notice is
effective, a third party acquires the property affected by the
lis pendens subject to the eventuality of the litigation.
(Blas, et al. v. Hon. Muoz-Palma, et al., supra at 5421;
Diaz v. Hon. Perez, et al., supra at 1026; Atkins, Kroll & Co.
v. Domingo, supra at 368.)
The registration of a notice of lis pendens does not
however produce a legal effect similar to a lien. It does not
create a non-existent right or lien. It only means that a
person purchases or contracts on the property in dispute
subject to the result of the pending litigation. (Somes v.
Government of Phil. Islands, supra at 442.)
Neither does it affect the decree of registration over the
land in question. It does not relieve the registrant of the
notice of lis pendens from the necessity of objecting to
the application for original registration on the same lands
filed previous to the annotation of the notice of lis
pendens. (Valmonte, et al. v. Villaroman, et al., supra at
228.)
In the absence of notice of lis pendens or actual
notice of the pendency of the litigation over the property
involved, the decision will not bind third persons. (De Roda
v. W. A. Lalk & Michael & Co., Inc., (1925) 48 Phil. 104,
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Garcia vs. Fenoy
107-108.) In such a case, there is no legal obstacle to the

transfer of the title of the property and the transfer cannot
be rescinded. (Sikatuna v. Guevara Francisco, [1922] 43
Phil. 371, 375.)
Lis pendens affects both registered and unregistered
lands. (Garchitorena Vda. de Centenera v. Sotto, [1947] 78
Phil. 432, 442 citing Atkins, Kroll & Co. v. Domingo, supra.)
It does not invalidate the previous notation of an
adverse claim appearing on the same title even if the action
and the adverse claim refer to the same right or interest
sought to be recovered. Both notations may co-exist on the
same title. (Ty Sin Tei v. Lee Dy Piao, supra at 865-867.)
Where a transferee acquires the property subject to lis
pendens, he cannot later on refuse to surrender his title
for cancellation thereof upon order of the court. He
received such title from the Register of Deeds upon his
undertaking to respect the outcome of the litigation, the
title being expressly subject thereto, by the annotation of
lis pendens. (Selph v. Gliceria Vda. de Aguilar, supra.)
A transferee pendente lite of the property involved in the
litigation stands exactly in the shoes of his predecessor in
interest. As such, he is bound by the proceedings had in the
case. He is a proper but an indispensable party to the
action as he will in any event be bound by the judgment
against his predecessor. (Fetalino v. Sanz, [1923] 44 Phil.
691, 694.)
B. Notice of Lis Pendens Has No Effect if Plaintiff
Loses in the Suit.The only effect of a notice of lis
pendens, either under the Code of Civil Procedure (now
Rules of Court) or under the Mortgage Law is to secure the
rights of the plaintiff in the suit if he finally prevails. If he

does not prevail and judgment is rendered against him, the
notice can produce no effect. (Limjap v. Vera Moguer,
[1908] 11 Phil. 439, 442; Atkins, Kroll & Co. v. Domingo,
supra at 367-68.)
C. Effect of Lis Pendens in Particular Cases; Sales.
Purchasers pendente lite of the property subject of the
litigation after the notice of lis pendens is inscribed in
the of-
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Garcia vs. Fenoy
fice of the Register of Deeds are bound by the judgment

against their predecessor. (Correa v. Pascual, et al., [1956]
99 Phil. 696, 702-03.) They will be held to have bought the
land in bad faith since they are charged with notice of the
existence of the litigation over the property in question.
(Bancairen, et al. v. Diones, et al., [1955] 98 Phil. 122, 127.)
The notice of lis pendens recorded in the vendees a
retros certificate of title does not deprive them of the right
to the same. It only means that if the plaintiff, the
purchaser of the land, should secure a judgment in his
favor he would step into the shoes of the vendors a retro.
(Ayson, et al. v. Court of Appeals, et al., [1955] 97 Phil. 965,
966 [unrep.])
Where no annotation of lis pendens is made, the
decision rendered in the case will not operate to divest the
rights of transferees who have not been parties to that
litigation either as plaintiffs or as defendants. (Granados v.
Monton, [1950] 86 Phil. 42, 49-50.)
The notice of lis pendens does not prevent the
transferees from making negotiations for loans on the
strength of the certificate of title allegedly conveyed to
them. (Icasiano v. Tan, [1949] 84 Phil. 860, 864.)
Innocent purchasers for value cannot be adversely
affected by the decision on the case where they purchased
the property in litigation before the notation of the notice
of lis pendens. (Dia v. Finance & Mining Investment
Corp., [1949] 83 Phil. 675, 677.)

Purchasers of a property in litigation in the sheriff s
sale cannot prevail against the judgment in the case if,
prior to the sale, a notice of lis pendens was filed in
connection with that case. (Garchitorena Vda. de Centenera
v. Sotto, supra at 442.)
Transferees pendente lite are bound by the judgment.
(Tirona, et al. v. Lapuz & Kerr, supra citing Correa v.
Pascual, supra; Director of Lands, et al. v. Martin, et al.,
[1949] 84 Phil. 140; Tuazon v. Reyes & Siochi, [1926] 48
Phil. 844; Rivera v. Moran, [1926] 48 Phil. 836; See also
Selph v. Gliceria Vda. de Aguilar, supra; Pineda v. Santos,
supra at 586-87.)
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Garcia vs. Fenoy
Buyer of a lot owned in common is not affected by a notice

of lis pendens in so far as the other half undivided
interest of the seller which was not in litigation is
concerned. The sale is valid subject only to the condition
that the interests acquired by the buyer are limited to the
parts which might be assigned to the seller in the division
upon the termination of the co-ownership. (Article 493,
Civil Code; Mercado v. Viardo, L-14127-28, Aug. 21, 1962.)
With the entry of lis pendens, any cancellation or
issuance of title of the land involved as well as any
subsequent transaction affecting the same, would have to
be subject to the outcome of the litigation. In other words,
until the litigation is terminated there is no risk of losing
the property or any part of it as a result of any conveyance
of the land or any encumbrance that may be made thereon
posterior to the filing of the notice of lis pendens. (Juan
P. Pellicer & Co., Inc. v. Phil. Realty Corp., [1950] 87 Phil.
302, 303.)
D. Effect of Lis Pendens in Particular Cases; Mortgage.
While the notice of lis pendens was annotated
subsequent to the mortgage and cannot, therefore, affect
the right of the mortgagee on the property, yet said notice
certainly affects the right of the purchaser of the property

as the highest bidder at the auction sale made as an
aftermath of the foreclosure of the mortgage.
(Rehabilitation Finance Corp. v. Morales, supra at 174-
175.)
However, the notation of lis pendens is not a justifiable
or lawful cause to prevent the execution of the judgment of
foreclosure of the mortgage constituted over the property
in litigation. (Somes v. Government, supra at 442.)
Where the notice of lis pendens had already been
cancelled by the Register of Deeds when the loan and
mortgage deed over the property in litigation were made,
the mortgagor cannot be charged with bad faith. Neither do
the foregoing justify the presumption that the judgment
was rendered against the mortgagor or that the judgment
remained unsatisfied. The mortgage should therefore be
respected. (Saavedra v. Martinez, et al., supra at 773.)
Only mortgages over the subject land which are
subsequent to the notice of lis pendens are affected by
the pending litigation (Atkins, Kroll & Co. v. Domingo,
supra.)
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Garcia vs. Fenoy
while rights previously acquired will remain unaffected.

(De Roda v. Lalk, supra; Sarmiento v. Hon. Ortiz, et al., L-
18583, Jan. 31, 1964.)
E. Effect of Lis Pendens in Particular Cases; Decree of
Registration.A notice of lis pendens cannot affect the
decree of registration upon the lands in question. The
notice only protects the rights of the person seeking the
annotation of the lis pendens over the lands in litigation
and does not relieve him from the necessity of objecting to
the application for registration filed by an applicant on the
same lands previous to the filing and recording of said
notice of lis pendens. (Valmonte, et al. v. Villaroman, et
al., supra.)
IV. Cancellation
A. Power of the Court to Order Cancellation of Notice of

Lis Pendens.The court has the inherent and
discretionary power in a proper case and in the absence of
statute, to order the cancellation of a notice of lis
pendens even before the termination of the action.
(Sarmiento v. Hon. Ortiz, et al., supra; Municipal Council
of Paraaque, Rizal v. Court of First Instance of Rizal,
supra at 364; Victoriano v. Rovira, et al., supra at 1003-
1004.)
Notice of lis pendens is a proper cautionary measure
which the courts should be slow to disturb (Natao, et al. v.
Esteban, et al., supra at 486), unless the action which gives
rise to the notice of lis pendens is prima facie
unconvincing, or is not made in good faith, or an action
which may not be considered a real action affecting title or
right of possession of real property. (Diaz v. Hon. Perez, et
al., supra at 1025.)
An order of the court refusing the annulment of a
notice of lis pendens is interlocutory and cannot be the
subject of appeal until final judgment is rendered.
(Section 2, Rule 41, new Rules of Court; Diaz v. Hon. Perez,
et al., supra.) Therefore, mandamus will not lie. (Diaz v.
Hon. Perez, et al., supra.) Such an order is comparable
with an order refusing to annul a preliminary attachment
(Olsen & Co. v. Olsen, [1925] 48 Phil. 238) or an order
denying or granting a preliminary injunction (Diokno v.
505
VOL. 6, OCTOBER 31, 1962 505

Garcia vs. Fenoy
Reyes, et al. [1907] 7 Phil. 385; Lopez v. Dinglasan, et al.

[1949] 84 Phil. 292) which have been held to be
interlocutory. (Cf. Victoriano v. Rovira, supra; Municipal
Council of Paraaque, Rizal v. Court of First Instance,
supra; Diaz v. Hon. Perez, et al., supra at 1025.)
In asking the court to annul the lis pendens, the
plaintiff admits the jurisdiction of the court to annul and

also to refuse the annulment. He cannot later seriously
urge in an action by certiorari that the trial court lacked
the jurisdiction. (Diaz v. Hon. Perez, et al., supra at 1025.)
B. Cancellation of Lis Pendens During Pendency of
Action.
1. Rule.Ordinarily, a notice of pendency of the action
which has been filed in a proper case, cannot be cancelled
while the action is pending and undetermined. (Municipal
Council of Paraaque, Rizal v. Court of First Instance,
supra; Victoriano v. Rovira, et al., supra.) The reason is
that the cancellation, in effect, will place the plaintiff at a
disadvantage. It will open the floodgates to the commission
of a fraud. What if, after the cancellation of the notice of
lis pendens in the office of the Register of Deeds,
defendants should thereafter sell the land to a purchaser in
good faith and for value? (Natao, et al. v. Esteban, et al.,
supra at 486.) The notice is therefore intended to be a
warning to the whole world that one who buys the property
does so at his own risk. This is necessary to save innocent
third persons from any involvement in any future litigation
concerning the property. (Rehabilitation Finance Corp. v.
Morales, supra at 175-176.)
Such notice cannot be cancelled upon the motion of the
vendors or vendees predicated upon the fact that the
vendees had acquired the lots prior to the noting of the
notice of lis pendens, (Capitol Subdivision, Inc. &
Montelibano Subdivision v. Montelibano, et al., L-13389-90,
Sept. 30, 1960.)
Neither is the fact that the sale is necessary for the
payment of estate and inheritance taxes which were
assessed by the government on all the inventoried
properties a legal justification to cancel the lis pendens.
The annotation of the lis pendens cannot in any manner
prevent the
506

Garcia vs. Fenoy
probate court from selling the lands in question if it

believes necessary to do so to apply the proceeds of the sale
to the payment of said taxes, but by force of law, since the
properties are still in litigation, the sale should be subject
to the lis pendens. (Bias, et al. v. Hon. Muoz-Palma, et
al., supra at 5421.)
The fact that one bought the property as the highest
bidder at the auction sale made as an aftermath of the
foreclosure of the mortgage is no legal justification for the
cancellation of the notice of lis pendens. (Rehabilitation
Finance Corp. v. Morales, supra.)
2. Exceptions.But there are instances when the court,
in the exercise of its discretionary power, may under
peculiar circumstances order the cancellation of the notice
of lis pendens during the pendency of the action. They
are:
a. Where it is so expressly provided by statute.

(Victoriano v. Rovira, et al., supra at 1003-1004);
b. Where the action is filed in court only after the
lapse of one year from the sale of the lot in
question to a third person and the evidence
presented at the time when the motion for
cancellation was filed does not bear out the main
allegations of the complaint. (Victoriano v. Rovira,
et al., supra);
c. Where there was unnecessary delay attributable to
the plaintiff and his counsel in the resolution of the
main case for annulment of the certificate of title
and the delay was highly prejudicial to the
defendants who could not use the property in
litigation as security to guaranty a loan from the
bank. (Sarmiento v. Hon. Ortiz, et al., supra);
d. Where an action for declaration of escheat was
postponed three times at the instance of the
plaintiff and without being able to present evidence
to substantiate the allegations of the complaint.
(Municipal Council of Paraaque, Rizal v. Court of
First Instance, supra at 364); but where the delay
was due to the fact that the plaintiff died and his
counsel did not know the legal heirs or
representatives, it cannot be used as basis for the
cancellation of the notice of lis pendens.

(Sarmiento v. Hon. Ortiz, et al., supra);
507
VOL. 6, OCTOBER 31, 1962 507

Garcia vs. Fenoy
e. Where eighteen (18) years had lapsed since the

defendant adjudicated the property to himself as
sole heir of his parents without any claim or
administration proceeding being instituted. (Olaes,
et al. v. Tanda, et al., L-21919, May 19, 1966, 17
SCRA 137, 141-142);
f. Where there are sufficient properties of the
defendant from which the claims of the plaintiffs
may be paid and from the evidence thus far
presented, the cause of action of the plaintiffs does
not warrant a reconsideration of the cancellation of
the notice of lis pendens apart from the slim
chances for an early termination of the litigation in
the lower court and the possibility of an appeal.
(Montelibano, et al. v. Hon. de la Cruz, et al., L-
19759, April 30, 1964.)
But whether or not there was delay in the prosecution of

the main action, the cancellation of the notice of lis
pendens cannot be granted ex parte by the court. Plaintiff
is entitled to the right to be heard on notice. (Section 4,
Rule 15, new Rules of Court; Sarmiento v. Hon. Ortiz, et
al., supra.)
There must also be a showing that the notice of lis
pendens is for the purpose of molesting the adverse party
or that it is not necessary to protect the rights of the party
who caused it to be recorded. (Section 24, 2nd paragraph,
Rule 14, Rules of Court; Natao, et al. v. Esteban, et al.,
supra at 486.)
C. Cancellation of Lis Pendens After Termination of
Action.If judgment is rendered in favor of the plaintiffs
in the action, the unrecorded right acquired by the vendees
in the lots sold by the defendant is subject or subordinate
to the right of the plaintiffs in whose favor the judgment is

rendered. But if the judgment is rendered against the
plaintiffs in the action, the notice of lis pendens noted in
the certificate of title to the lots loses its efficacy or is ipso
facto cancelled. (Capitol Subdivision, Inc. & Montelibano
Subdivision v. Montelibano, et al., supra.)
Where the main case was dismissed upon failure of the
plaintiff to appear at the time of the trial, it was held that
the notation of the order of dismissal which eliminated the
case from the courts docket operated as a cancellation
508

Gatchalian vs. Pavilin
of the notation of the pendency thereof. (Lazaro, et al. v.

Mariano, et al., [1934] 59 Phil. 627, 630-31.)
The plaintiffs have no cause of action for damages
against the defendant for causing the partial cancellation
of their notice of lis pendens where it has been found by
final judgment that the plaintiffs have no legal right or
title whatsoever to the land covered by the notice of lis
pendens. (Garcia, et al. v. Fenoy, L-17560, Oct. 31, 1962.)
Section 79 of the Land Registration Act as amended
provides that No x x x judgment or decree, and no
proceeding to vacate or reverse any judgment or decree,
shall have any effect on registered land as against persons
other than the parties thereto, unless a memorandum x x x
shall be filed and registered x x x provided, however, that
in case notice of the pendency of the action has been duly
registered it shall be sufficient to register the judgment or
decree in such action within sixty (60) days after the
rendition thereof. This section does not say that if the
judgment is not registered within 60 days, the notice will
not be binding. (Selph v. Gliceria Vda. de Aguilar, supra.)
Atty. AMBROSIO R. BLANCO
__________________
Copyright 2017 Central Book Supply, Inc. All rights reserved.

Doctrine of Lis Pendens

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SUPREME COURT REPORTS ANNOTATED VOLUME 006 12/05/2017, 4*20 PM

490 SUPREME COURT REPORTS ANNOTATED

DOCTRINE OF LIS PENDENS

A. Definition.Lis pendens is a Latin term which

VOL. 6, OCTOBER 31, 1962 491

dency in Spanish Law which is the condition of a suit

Notice of lis pendens is a notice filed for the purpose

492 SUPREME COURT REPORTS ANNOTATED

C. Distinguished With Adverse Claim.The two remedies

under certain circumstances (Victoriano v. Rovira, et al.,

VOL. 6, OCTOBER 31, 1962 493

Muoz-Palma, et al., L-15689, April 29, 1960, 58 O.G. No.

pending determination of the controversy, thereby

494 SUPREME COURT REPORTS ANNOTATED

annotation is only necessary in voluntary transactions.

VOL. 6, OCTOBER 31, 1962 495

the duty, within 72 hours from the presentation of an

496 SUPREME COURT REPORTS ANNOTATED

the mind of the Register of Deeds by reason of which he

Section 72 above quoted has not been repealed by Republic

II. Actions Where Lis Pendens is Proper

A. Action Must Affect the Title or Right of Possession of

VOL. 6, OCTOBER 31, 1962 497

will be registered, the action must affect the title or right of

1. Action to recover possession of real estate (Section

Lis pendens cannot be notated in the following instances:

1. Attachments (Section 79, Act No. 496, as amended);

B. Other Cases Where Notice is Proper.The use of the

498 SUPREME COURT REPORTS ANNOTATED

made. Indeed, cases have held annotation to be proper in

1. Receivership proceedings involving realty (Diaz v.

incompetent, transactions entered into by him will

C. Cases Where Lis Pendens is Not Proper.The

VOL. 6, OCTOBER 31, 1962 499

ceeds thereof. (Saavedra v. Martinez, et al., supra);

3. Action for recovery of fixed amounts of

In suits for dissolution of a corporation, the fact that in

500 SUPREME COURT REPORTS ANNOTATED

the title to or possession of real property is directly

III. Effect of Registration of Notice of Lis Pendens

A. Amounts to Notice of the Dispute Over the Land in

VOL. 6, OCTOBER 31, 1962 501

107-108.) In such a case, there is no legal obstacle to the

rights of the plaintiff in the suit if he finally prevails. If he

502 SUPREME COURT REPORTS ANNOTATED

fice of the Register of Deeds are bound by the judgment

Corp., [1949] 83 Phil. 675, 677.)

VOL. 6, OCTOBER 31, 1962 503

Buyer of a lot owned in common is not affected by a notice

certainly affects the right of the purchaser of the property

504 SUPREME COURT REPORTS ANNOTATED

while rights previously acquired will remain unaffected.

A. Power of the Court to Order Cancellation of Notice of

VOL. 6, OCTOBER 31, 1962 505

Reyes, et al. [1907] 7 Phil. 385; Lopez v. Dinglasan, et al.

plaintiff admits the jurisdiction of the court to annul and

506 SUPREME COURT REPORTS ANNOTATED

probate court from selling the lands in question if it

a. Where it is so expressly provided by statute.

cancellation of the notice of lis pendens.

VOL. 6, OCTOBER 31, 1962 507

e. Where eighteen (18) years had lapsed since the

But whether or not there was delay in the prosecution of

to the right of the plaintiffs in whose favor the judgment is