1. DEBTS AND DEBTORS; ATTACHMENT AND EXECUTION; PRECEDENCE OF UNRECORDED DEED; CREDITORS NOT THIRD PARTIES. — The levy of an execution against a judgment debtor upon real property standing in his name, does not take precedence over an unrecorded deed of the same property made by the judgment debtor prior to the levy. Creditors, in such cases, are not third parties within the meaning of article 389 of the Mortgage Law. (Fabian v. Smith, Bell & Co., 8 Phil. Rep., 496; Boncan v. Smith, Bell & Co., Phil. Rep., 109.)

2. ID.; ID.; ID. — It is a general rule that, when a person by virtue of a judgment for the recovery of a debt secures an attachment against property which turns out to have been previously sold, although the purchaser did not have the property registered in his name, the latter has the superior right inasmuch as the attachment does not confer a real right. (Galindo and Escosura on the Mortgage Law, vol. 2, p. 630.)

On the 25th day of February, 1903, Agapito Geronimo sold and delivered to the plaintiff the land, with the house thereon, described in the petition filed in this cause.

In the month of March, 1903, the defendant, Manuel Cea, obtained a judgment against the said Agapito Geronimo in the court of the justice of the peace of the municipality of Tigaon, of the Province of Ambos Camarines, for a certain sum of money.

Later (the record does not disclose the date), the said justice of the peace issued an execution against the property of the said Agapito Geronimo upon said judgment, which execution was put in the hands of the sheriff of said province. Later, the sheriff attached the property in question. After the said attachment, the plaintiff herein gave the sheriff notice that the property attached belonged to him by virtue of his deed of the 25th of February, 1903. The sheriff notified the said Manuel Cea of the claim of the plaintiff herein. Upon receiving notice of the claim of the plaintiff, the said Manuel Cea executed and delivered to the sheriff the bond required in such cases (sec. 451, Code of Procedure in Civil Actions), and the sheriff proceeded to sell the property in question to the defendant Jose Maria Prado on the 8th day of December, 1903, and the said Jose Maria Prado was put in possession of the property and the plaintiff was put out of the possession of said property on the said 8th day of December, 1903.

On the 28th day of January, 1903, the plaintiff, Regino Ariston, commenced an action against the said Manuel Cea, the said sheriff, the purchaser at the sheriff’s sale, Jose Maria Prado, as well as the said Agapito Geronimo, to recover the possession of the said property and the rents and profits resulting from the use and occupation of the same by the defendant, and costs.

After hearing the evidence adduced during the trial of said cause, the lower court found that the plaintiff was entitled to the possession of the property in question and that the defendant were liable to the plaintiff for the rent of said property at the rate of 15 pesos per month from the 8th day of December, 1903, until such time as the defendants should redeliver the said property to the plaintiff.

From this judgment of the lower court the defendants appealed and made the following assignments of error:jgc:chanrobles.com.ph

"1. The court below committed an error of law in holding that the plaintiff and appellee acquired the ownership of the property prescribed in his complaint and in the bill of exceptions by purchase from Agapito Geronimo, by virtue of the private agreement marked Exhibit A in the bill of exceptions.

"2. The court also erred in holding that the defendants should pay the plaintiff, as damages, fifteen pesos per month, as rent for the property described in the complaint, and one hundred pesos as damages caused to the same plaintiff, from the 8th of December, 1903, until the delivery of the property to the plaintiff.

"3. The court also erred in overruling the motion for a new trial presented by the defendant and Appellant."cralaw virtua1aw library

The first above assignment of error presents a question of law only. The fact that Agapito Geronimo, on the 25th day of February, 1903, sold and delivered the property in question to the plaintiff herein, is not denied. The deed, however, was not recorded at the time the execution in favor of the said property. This court had decided that the levy of an execution against a judgment debtor upon real property standing in his name does not take precedence over an unrecorded deed to the same property made by the judgment debtor prior to the levy. Creditors in such cases are not third parties within the meaning of article 389 of the Mortgage Law. (Fabian v. Smith, Bell & Co., 8 Phil. Rep., 496; Boncan v. Smith, Bell & Co., 9 Phil. Rep., 109.)

It is the general rule that, when a person by virtue of a judgment for the recovery of a debt secures an attachment against property which turns out to have been previously sold, although the purchaser did not have the property properly registered in his name, the latter has the superior right as the attachment does not confer a real right. (Galindo and Escosura on the Mortgage Law, vol. 2, p. 630.)

Upon the second assignment of error there was but little proof introduced. The property seems to be of but little value. The defendant swore that the rental value of said property was 15 pesos per month. The proof adduced during the trial on the question of damages seems to be inadequate to justify any definite conclusion about the real value of the property involved. However, inasmuch as the lower court has found that the rental value of said property was 15 pesos per month, we do not feel justified in changing that finding of fact.

With reference to the third assignment of error, no argument has been presented by the plaintiff sufficient to justify this court in changing the order of the lower court.

Therefore, and for the reasons above stated, the judgment of the lower court is hereby affirmed, with costs.

Arellano, C.J., Torres, Carson and Willard, JJ., concur.