(Sgd.) "CHAS. A. MCDONOUGH
"Notary Public
"MV commission expires December 31, 1922
"Doc. No. 21
"Page No. 88
"Not. Reg. for 1922"
The last paragraph of this affidavit tells how easy it was at that time to use the seal of the probate division of the court, and seems to detract from the value of the seal stamped upon one of the copies of the contract of lease, where said Honorable A. S. Crossfield approved the same over his signature. This particular point is the subject matter of the agreed statement of facts which is expressed as follows:jgc:chanrobles.com.ph
"The said petition was presented to the Honorable A. S. Crossfield, then one of the Judges of the Court of First Instance of Manila, sitting in the branch of said court having jurisdiction over the said guardianship proceedings, such presentation being ex parte, without notice to the said Zacarias Lichauco or any other person. No order was entered of record upon the said petition, but some time after the execution of the said lease by the said Geronimo Jose as such guardian on behalf of the said Zacarias Lichauco, the lessee’s duplicate of the lease, signed by the said Tan Pho and Geronimo Jose, heretofore referred to as having been acknowledged before a notary public on October 23rd, 1913, was by the said Judge endorsed as follows:jgc:chanrobles.com.ph
"Approved.
(Sgd.) "A. S. CROSSFIELD
"Judge
(And sealed with the seal of the Court of First Instance of Manila.)
"It is also stipulated that the said Crossfield would, if permitted over the objection of counsel for plaintiff, testify that while he does not remember positively when he endorsed his approval on the said lessee’s duplicate of said lease, to the best of his recollection the said Geronimo Jose requested and obtained it from him for the purpose of registering the lease, but that he is unable to recall the date of his signature more accurately by reason of the great lapse of time; but counsel for the plaintiff objects to the consideration of said testimony as to the date of said endorsement for the reason that said endorsement was not a judicial act and both it and its alleged date are wholly inadmissible, irrelevant and incompetent to bind the estate of the prodigal.
"No such endorsement was placed upon the lessor’s copies of said lease nor upon the copies retained by the notaries public before whom it was acknowledged, and the guardian of said minors had no notice or knowledge of such endorsement. No order of approval of said lease was entered in the guardianship proceedings, the only record thereof being the endorsement set forth above."cralaw virtua1aw library
This copy of the lease, at the bottom of which appears said approval signed by Judge Crossfield, was not attached to the court records of the case, nor did it ever form a part thereof.
With these facts and on these premises, the judgment appealed from impliedly granted the nunc pro tunc motion filed by Tan Pho in the said guardianship proceedings Nos. 4923 and 10812, now G. R. Nos. 19511 and 19595, respectively. This judgment is now contested, and the fact that said petition was granted is assigned as error.
As evidence of record that the lease was judicially approved are cited, first, the motion presented by Zacarias Lichauco on August 1, 1913, which says: "It having been decided by this court that the land be leased to the administration of the testamentary estate of Chua Piengco," etc.; and second, the guardian’s accounts from 1913 to 1919, approved by the court, wherein appear the payments of the rents stipulated in the contract of lease.
As to the motion of August 1, 1913, presented by Zacarias Lichauco, it is no proof of the judicial approval of the lease. Supposing them to be true, the allegations therein would only indicate that the court had decided that the land should be leased, but not that in fact and beforehand the contract to be later executed to that effect was approved.
As to the guardian’s accounts from 1913 to 1919, they comprise the period of only six years, and their approval does not in any way indicate that the court in approving them, likewise approved the lease for more than six years, which is the lease requiring judicial approval, and not that for less than six years. It does not appear in these accounts that the rents therein spoken of were the result of a contract of lease for over six years. Furthermore, the approval of an administrator’s accounts does not imply the approval of the contracts by virtue whereof the rents noted therein were received. The law, in requiring a guardian to render a statement of his accounts, demands that said guardian give detailed information to the court of the property, both real and in cash, belonging to the ward, as well as of all the proceeds and interests belonging thereto and of the management and disposal thereof. (Sec. 555, No. 3, Code Civ. Proc.) And such accounts are submitted to the court in order that the latter may ascertain whether or not all of the property and all the income during the period included therein are duly made to appear, and whether or not accounts are correctly kept, but the question of the legality and legitimacy of each entry is not necessarily submitted to the court. The approval of such accounts implies neither the adjudication of the property therein mentioned, nor the declaration of the legality of the income expressed therein.
The legal provision we have in this jurisdiction dealing with the subsequent writing and signing of interlocutory orders and judgments, is contained only in sections 12 and 13 of Act No. 867. We have no positive statute governing nunc pro tunc orders. There is something in our jurisprudence which does not, however, positively decide the question. We refer to the case of Lino Luna v. Rodriguez and De los Angeles (37 Phil., 186).
What is established in our laws and jurisprudence is, that our Courts of First Instance, being courts of record, the orders and judgments rendered by them must appear in writing in the records of the court. In the present case it does not appear that there was any written order in the records of the Court of First Instance approving the lease in question. As we have pointed out, neither is there any entry in the records of these cases that might serve as a basis for the conclusion that the court in due time approved such a contract.
Turning now to the jurisprudence upon this point, we find the following:jgc:chanrobles.com.ph
"The office of a judgment nunc pro tunc is to record some act of the court done at a former time which was not then carried into the record, and the power of a court to make such entries is restricted to placing upon the record evidence of judicial action which has been actually taken. It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper judgment, it has no power to remedy these errors or omissions by ordering the entry nunc pro tunc of a proper judgment. Hence a court in entering a judgment nunc pro tunc has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered, but which had not been entered of record as rendered. In all cases the exercise of the power to enter judgments nunc pro tunc presupposes the actual rendition of a judgment, and a mere right to a judgment will not furnish the basis for such an entry." (15 R. C. L., pp. 622-623.)
"There can be no doubt that such an entry may operate so as to save proceedings which have been had before it is made, but where no proceedings have been had and the jurisdiction of the court over the subject has been withdrawn in the meantime, a court has no! power to make a nunc pro tunc order. If the court has omitted to make an order, which it might or ought to have made, it cannot, at a subsequent term, be made nunc pro tunc. According to some authorities, in all cases in which an entry nunc pro tunc is made, the record should show the facts which authorize the entry, but other courts hold that in entering an order nunc pro tunc the court is not confined to an examination of the judge’s minutes, or written evidence, but may proceed on any satisfactory evidence, including parol testimony. In the absence of a statute or rule of court requiring it, the failure of the judge to sign the journal entries or the record does not affect the force of the order grantea." (20 R. C. L., p. 513.)
"The phrase nunc pro tunc signifies ’now for then,’ or that a thing is done now that shall have the same legal force and effect as if done at the time it ought to have been done. A court may order an act done nunc pro tunc when it, or some one of its immediate ministerial officers, has done some act which for some reason has not been entered of record or otherwise noted at the time the order or judgment was made or should have been made to appear on the papers or proceedings by the ministerial officer." (Secou v. Leroux, 1 N. M., 388, 389.)
"The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in place of the one it did erroneously render, nor to supply nonaction by the court, however erroneous the judgment may have been." (Wilmerding v. Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268.)
"A nunc pro tunc entry in practice is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake." (Perkins v. Haywood, 31 N. E., 670, 672.)
"Except as to the rights of third parties, a judgment nunc pro tunc is retrospective, and has the same force and effect, to all intents and purposes, as if it had been entered at the time when the judgment was originally rendered." (Burns v. Skelton, 68 S. W., 527; 29 Tex. City App., 453.)
"It is competent for the court to make an entry nunc pro tunc after the term at which the transaction occurred, even though the rights of third persons may be affected. But entries nunc pro tunc will not be ordered except where this can be done without injustice to either party, and as a nunc pro tunc order is to supply on the record something which has actually occurred, it cannot supply omitted action by the court. Record entries nunc pro tunc can properly be made only when based on some writing in a cause which directly or by fair inference indicates the purpose of the entry so sought to be made, or on the personal knowledge and recollection of the court; but in a case where a statement of facts was filed after adjournment of the court for the term, but within the time allowed by an order not entered in the minutes on an oral motion made therefor at the trial, the court at a subsequent term was held to have jurisdiction to permit the filing of such order nunc pro tunc on the recollection of the judge and other parol testimony that the order had been applied for and granted during the previous term, without any memorandum or other written evidence thereof. A nunc pro tunc entry will be treated as a verity where not appealed from." (15 C. J., pp. 972-973.)
The question is whether or not a nunc pro tunc order may be entered when nothing appears from the files forming a part of the record, upon which such an order may be based. In the case of Gagnon v. United States (193 U. S., 451; 48 Law. ed., 745), the following was said:jgc:chanrobles.com.ph
"It may be gathered from these cases that, if a memorandum be entered upon the calendar that a certain document has been filed, such document, if lost, may be supplied by a copy in the hands of counsel; or where a judgment or, order has been entered upon the calendar, which does not appeal upon the journal, the court may order a new one to be entered nunc pro tunc. In such cases there is often a memorandum of some kind entered upon the calendar, or found in the files, and there is no impropriety in ascertaining the fact even by parol evidence and supplying the missing portion of the records. But the exercise of a power to recreate a record where no memorandum whatever exists of such record is evidently a dangerous one, and, although such power may have been occasionally given by the legislature in cases of overwhelming necessity, as, for instance, by the ’lost record act’ passed by the general assembly of Illinois after the great fire in Chicago in 1870 (Laws of Illinois, 1871-2, p. 650), such power has not been hitherto supposed to be inherent in courts of general jurisdiction. As the evidence upon which such restoration is made cannot he inquired into, if the jurisdiction to recreate the record exists, it might well happen that, upon the testimony of a single interested witness, the court would order a new record to be entered after a lapse, as in this case, of over thirty years, and when the judge and clerk have both died, and there was no possibility of contradicting the testimony of such single witness."cralaw virtua1aw library
The appellee maintains that in the case of Wight-Nicholson (134 U. S., 136; 33 Law. ed., 865), it was held that it is a sufficient basis for a nunc pro tunc order to resort to parol evidence to supply the part omitted from the record, and that said case is cited in the case of Gagnon v. United States, and consequently, has not been reversed in said case. We understand, however, that the parol evidence admitted in the case of Wight-Nicholson referred to, is not to supply the whole of a proceeding of which not a trace is to be found in the record, but to supply, as is said in one of the paragraphs of said case, the part omitted from the record; for said case dealt with a nunc pro tunc order issued by the Circuit Court for the District of Michigan, remanding said case to the Court of the District of Michigan. This order of remission was not an integral, independent and isolated order from the Circuit Court, but a necessary consequence in the course of the ordinary procedure of the order of said court denying the motions for a new trial and for arrest of judgment. Naturally, after the case had been sent by the District Court, wherein a verdict of guilty was rendered, to the Circuit Court to which the aforesaid motions for a new trial and for arrest of judgment were submitted, the ordinary procedure possible under the circumstances that the Circuit Court could follow was, either to grant or deny said motions. If it denied them, the necessary and logical consequence of such denial would be to return the case to the court of origin for further proceedings.
Now then, it appears from the record of the case that the said motions for a new trial and for arrest of judgment were denied, but it was not made to appear in the same order that the case was returned to the District Court. The action of the Circuit Court in deciding said motions included the principal order of denial, and the necessary consequence of remanding the case to the trial court. Of this complete action in denying the motions and remanding the case to the court of origin, only the principal part (the denial) appeared in the record, without a trace therein of the accessory part (the remanding). As there appeared in writing in the record data concerning the principal part of the action taken by that court, such evidence served as a sufficient ground for a nunc pro tunc order for the purpose of supplying the written order not referring to the principal act that was already in writing, but only to the accessory part, which was the part left unwritten.
It cannot be said that the order to remand the case which was the only one that was the subject matter of the nunc pro tunc order was an independent act of said Circuit Court. Such order to remand must be based on some reason in order that it might be a judicial act, and the reason, the basis, the principal point of the order had been recorded in writing.
In consequence, we see no conflict between this case of Wight-Nicholson and that of Gagnon v. United States. And, indeed, no such conflict exists; otherwise the United States Supreme Court would not have cited the ruling given in the case of Wight-Nicholson, in support of the conclusions laid down in the case of Gagnon v. United States. Therefore, we take it that the doctrine on this point as enunciated in these cases is that for the entry of a nunc pro tunc order, it is required that the record present some visible data of the order which it is sought to be supplied by said nunc pro tunc order, whether it is the data referring to the whole of the order or merely limited to such portion thereof, that the part lacking from the record constitutes a necessary part, an inevitable and ordinary consequence of the portion appearing in the record.
In the present case, there exist no data, partial or integral, in the record regarding the judicial act of approving the lease in question.
The conclusion we have arrived at is that, although the lease in question could be approved by the court, nevertheless, such approval was neither obtained in due time, nor subsequently, inasmuch as the approbatory nunc pro tunc order impliedly entered in the judgment appealed from, is invalid on account of having been entered without a sufficient legal basis therefor.
We now pass to the third reason given by the appellants for the annulment of the lease, to wit: Tan Pho’s authority to enter into such a contract.
According to the instrument Exhibit A, Tan Pho took part in said contract as lessee in the capacity "as general attorney-in-fact of Tan-U, widow of the late Chua Piengco, and administrator of all of the property of the latter’s heirs."cralaw virtua1aw library
There are two points to determine: Tan Pho’s powers as general attorney-in-fact of Tan-U and his powers as administrator of all the property of the heirs of the decedent Chua Piengco.
It has been proven that at the time of the execution of the contract of lease Tan Pho was the general attorney-in-fact of Tan-U (Exhibit B) and that said contract was later expressly approved and ratified by Tan-U herself (Exhibit C). We find that Tan Pho’s authority as attorney-in-fact for Tan-U has been sufficiently proven.
With regard to his authority in relation to the heirs of Chua Piengco, the parties have admitted in paragraph I of the agreed statement of facts those alleged in paragraph VII of the complaint, wherein, among other things, the following is alleged:jgc:chanrobles.com.ph
"That on the date of the execution of the said contract of lease, said Tan Pho was the administrator of the estate of the deceased Chua Piengco, which was not as yet partitioned among the heirs, etc."cralaw virtua1aw library
The same thing was stipulated in the last part of paragraph 9 of the stipulation on facts (p. 9, Bill of Exceptions, G. R. No. 19512).
If Tan Pho was the administrator of the estate of Chua Piengco, then he had the power to manage the property of said estate. The employment of funds of the latter for the construction of a building on leased land, for the purpose of obtaining rents from such building is an investment of capital which may be considered as included in the powers of an administrator of a decedent’s estate. We cannot force ourselves to believe that, in view of the facts of the case, Tan Pho took part in this lease as direct attorney-in-fact of the heirs of the deceased Chua Piengco. If at the time, the estate had not been partitioned, as it appears in the case, such heirs had as yet no hereditary property to dispose of, nor to answer for their acts, seeing that the estate was legally in the hands of the administrator.
Furthermore, these heirs who are some of the defendants in the case G. R. No. 19512, have no more interest in the lease than is granted to them by Tan-U (paragraph 15, stipulation of facts). As the share of such heirs in this lease depends on the will of Tan-U, and as Tan-U has agreed to and ratified said contract, we find, that with respect to such interest of the said heirs in this lease, the lack of authority to execute it on the part of Tan Pho cannot be invoked to annul said contract.
Summarizing our conclusions with respect to the fundamental question touching the validity of the lease, we find that the lease in question must be held null in so far as it exceeds six years and affects the plaintiffs, for the reason that it lacked judicial approval.
(b) EFFICACY OF REGISTRATION
If the contract in question suffers from the vital defect above pointed out, was this cured by its registration in the certificate of title? This is the second principal question to decide.
This registration was obtained by the following proceedings:chanrob1es virtual 1aw library
Some time after the execution of the said contract of lease Galo Lichauco petitioned the Court of Land Registration for the registration of the leased land, the petition being signed at the bottom by Amparo N. Jose in behalf of Luis and Julita Lichauco, and by Geronimo Jose in behalf of Zacarias Lichauco agreeing thereto.
In the body of this petition it is alleged that the property was free of all encumbrances (paragraph 3) and that it was occupied by Tan Pho as attorney-in-fact for Tan-U (par. 5).
The advertisement of the petition was published, with the date of January 29, 1914, assigned for hearing, and upon the latter date, trial was had whereat the applicant Galo Lichauco, and attorney Catalino Sevilla, in behalf of Tan Pho as administrator of Chua Piengco, appeared. At that trial an agreement was entered into by and between Galo Lichauco, who appeared, and counsel for Tan Pho, in the following terms:jgc:chanrobles.com.ph
"The parties agree that the Chinaman Tan Pho, general attorney-in-fact for Tan-U, widow of Chua Piengco, and administrator of the property of the heirs of Chua Piengco, and the applicants have, on October 14, 1913, entered into a contract of lease for twenty years from that date, the conditions of which are mentioned in the contract of lease.
"The rental is P1,560 a month." (Bill of Exceptions, G. R. No. 19512, pp. 46-47.)
On April 3, 1914, the Court of Land Registration rendered judgment, the dispositive part of which is as follows:jgc:chanrobles.com.ph
". . . after a declaration of general default, the registration and adjudication of the land in question in this proceeding is hereby ordered in the name of the petitioners, in the following proportions: To Galo Lichauco, 1/3 part pro indiviso; to Zacarias Lichauco, 1/3 part pro indiviso, and to the minors Luis and Julita Lichauco, in equal parts, 1/3 part pro indiviso; it being understood that the land is subject to a contract of lease for twenty years in favor of Tan-U, administratrix of the property of the heirs of Chua Piengco, counting from October 14, 1913, at the rate of P1,560 monthly in advance, and upon the other conditions mentioned in the said contract."cralaw virtua1aw library
In pursuance of this judgment, the proper decree was issued on July 21, 1914. It so appears, furthermore, from paragraph 14 of the stipulation of facts, it having likewise been agreed in said stipulation that said contract of lease was not registered in accordance with sections 50, 51, or 52 of Act No. 496 (page 12, Bill of Exceptions, G. R. No. 19512).
The non-registration of said instrument of lease does not detract from the legal efficacy of the decree and title, inasmuch as sections 50 et seq. above cited refer to the voluntary disposal of the property after the original registration of the land, and the lease in question was executed before said original registration.
Although it might be disputable whether or not those represented by the plaintiff were bound by the agreement made at the trial with respect to this lease, if this point had been raised in time, yet the fact is that, after the judgment became final and the one year fixed by section 38 of Act No. 496 for the revision of the decree has elapsed, the title thus. issued is valid and has the legal force given to it by Act No: 496, unless, according to this Act itself, it be amended or altered by the proper legal proceeding.
Such amendment and alteration take place in those cases to which section 112 of Act No. 496 refers, which reads as follows:jgc:chanrobles.com.ph
"No erasure, alteration, or amendment shall be made upon the registration book after the entry of a certificate of title or of a memorandum thereon and the attestation of the same by the clerk or any register of deed, except by order of the court. Any registered owner or other person in interest may at any time apply by petition to the court, upon the ground that registered interests of any description, whether vested, contingent, expectant, or inchoate, have terminated and ceased; or that new interests have arisen or been created which do not appear upon the certificate; or that any error, omission, or mistake was made in entering a certificate or any memorandum thereon, or on any duplicate certificate; or that the name of any person on the certificate has been changed; or that the registered owner has been married, or, if registered as married, that the marriage has been terminated; or that a corporation which owned registered land and has been dissolved has not conveyed the same within three years after its dissolution; or upon any other reasonable ground; and the court shall have jurisdiction to hear and determine the petition after notice to all parties in interest, and may order the entry of a new certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other relief upon such terms and conditions, requiring security if necessary, as it may deem proper: Provided, however, That this section shall not be construed to give the court authority to open the original decree of registration, and that nothing shall be done or ordered by the court which shall impair the title or other interest of a purchaser holding a certificate for value and in good faith, or his heirs or assigns, without his or their written consent.
"Any petition filed under this section and all petitions and motions filed under the provisions of this Act after original registration. shall be filed and entitled in the original case in which the decree of registration was entered."cralaw virtua1aw library
As may be seen, this provision authorizes the amendment and alteration of the certificate of title, among other cases, in those of the "extinguishment or lapse of registered real rights."cralaw virtua1aw library
If the registered real right arising from the lease in question is, as it should be, declared invalid and without effect in so far as it affects the plaintiffs, being in excess of six years counted from the execution of said contract, such a declaration of nullity extinguishes said real right, as to the plaintiffs, which, without it, should have continued legally to exist, since such a contract is not void per se, but only voidable.
The instant petition for annulment, in effect, involves the petition that the right arising from the lease and registered in the registry, be declared extinguished with respect to the petitioners, which extinction is the inevitable effect of the declaration of nullity. This petition, therefore, enters the domain of Act No. 496, whereunder it has the effect of a petition for amending a certificate of title by virtue of the partial extinguishment of a right which occurred after its registration.
And there is no difficulty in so considering it, or in deciding the question so put, as all the interested parties have taken part in the present proceeding.
And the amendment of the certificate of title that may now be effected by virtue of the partial extinguishment of the registered right, will not constitute a revision of the original decree inasmuch as the amendment is based upon the extinguishment of a right, subsequent to its registration.
It must not be lost sight of that the contract of lease in question, as we have pointed out, is not void ab initio nor with respect to all the lessors, but only voidable, and only with respect to the plaintiffs. It is not void ab initio because, in regard to the plaintiffs, it contains the indispensable requisites for its existence. And it is voidable as to them because it lacks judicial approval, which defect invalidates it according to the law. Article 1300 of the Civil Code provides that:jgc:chanrobles.com.ph
"Contracts entered into with all the requisites mentioned in article 1261 may be annulled, even if there be no lesion to the contracting parties, whenever they — are subject to any of the vices which invalidate them in accordance with law."cralaw virtua1aw library
By analogy, we cite the following rule:jgc:chanrobles.com.ph
"The word void, as used in the statute authorizing the sale of infant’s real estate, and providing that, unless bonds shall be given, the sale shall be void, should be construed to mean voidable." (Thornton v. McGrath, 62 Ky., 350, 352.)
Since it is a contract that is merely voidable it has all the effects of being valid and efficacious, even with respect to the plaintiffs, so long as it is not declared void. For this reason, even though six years have elapsed since its execution, the contract has been in effect in regard to the rights and obligations of the contracting parties between themselves, including the plaintiffs, demandable up to the date of the commencement of this action, to which the effects of the declaration of the partial nullity of the said contract shall retroact, because the reason for such nullity already existed before the commencement of this action, the present judgment being limited to declaring it judicially. And the fact that the registration of the lease remains unaltered even after the commencement of this action, does not prevent the present declaration of nullity from being retroactive in its effects, as it does not appear from the record that there is any third party right, based on said registration.
This declaration of partial nullity of the contract of lease carries with it the necessity of declaring what are the rights of the several parties resulting from said declaration.
In the first place the contract in question remains unimpaired and valid with respect to Galo Lichauco, who did not join with the plaintiffs, but rather with the defendant Tan Pho, and to whom the reason for the annulment of the contract with respect to his colessors, the plaintiffs, does not apply. And the contract is null only in so far as it affects the incapacitated Zacarias Lichauco and the minors Luis and Julita Lichauco.
The effect of this declaration of partial nullity is that with respect to the plaintiffs, the stipulation contained in the contract with regard to the period of twenty years agreed upon, is void and without effect, as is that which provides that, upon the termination of said period, all the improvements or buildings erected on the land shall become the property of the owners of the land. Nevertheless, these stipulations, as well as the others contained in the contract, shall remain valid with respect to Galo Lichauco.
Another of its effects is, that in view of the circumstances of the case, all of which are compatible with the defendant’s good faith, and in view of the character of the contract being merely voidable, the lessee’s possession of the property to date, even so far as it affects the herein plaintiffs, has been, and still is, in good faith, as was also the construction of the buildings and improvements on said property. As a consequence of this conclusion, the lessees are the owners of said buildings and improvements erected upon the leased land by said lessee or by their order and at their expense, and consequently, said lessee is entitled to the accrued income of said buildings and improvements as the owner thereof.
In virtue of all these considerations, the judgment appealed from is reversed and it is hereby declared and ordered:chanrob1es virtual 1aw library
1. That the contract of lease here in question, executed on October 14, 1913 by Galo Lichauco and the respective guardians of Zacarias Lichauco and the minors Luis and Julita Lichauco on the one side, and by Tan Pho on the other, is void as regards the plaintiffs, and the effects of this declaration of partial nullity retroacts to September 17, 1920, the date on which the complaint for nullity was presented.
2. Without prejudice to any contract or contracts which the interested parties herein may desire to execute in accordance with the law and in harmony with this opinion, the plaintiffs, from the time Tan Pho is notified of this decision, shall be entitled to appropriate two-thirds part pro indiviso of the buildings and improvements constructed by the party represented by said Tan Pho on the property in question, upon payment of the proper indemnity, according to the provisions of articles 361, 453, and 454 of the Civil Code in force, or said plaintiffs shall have the right to compel the party represented by the defendant Tan Pho to pay to the plaintiffs the value of two-thirds pro indiviso of the land.
3. The plaintiffs shall be entitled to demand and to receive from the party represented by the defendant Tan Pho a rental for the occupation of two-thirds part pro indiviso of the land, from September 17, 1920, until said two thirds part pro indiviso of the buildings and improvements constructed by said Tan Pho, becomes the property of the plaintiffs, as aforesaid, or until the two-thirds part pro indiviso of the land belonging to the plaintiffs becomes the property of the party represented by said Tan Pho in the manner specified in the preceding paragraph. The amount of this rental mentioned in this paragraph shall be fixed by the interested parties, reserving them the right to resort to the courts for its determination, in case they cannot reach an agreement; provided that the rents, which by virtue of the lease in question, the plaintiffs may have received or may receive from Tan Pho from September 17, 1920, shall be applied upon said rent to be agreed upon by the interested parties or judicially fixed.
4. The registrar of deeds of Manila is hereby ordered to amend the certificate of title to the land in question issued under decree No. 17729, in registration proceeding No. 9667, as also the corresponding books of registry, as well as the copies of said certificate of title, to the effect that said lease therein registered, as far as the plaintiffs are concerned, has been extinguished and rendered void and of no effect by virtue of this decision.
5. Let certified copies of the complaint and the answers filed in this case for the annulment of said lease, as well as a copy of the present decision be attached to said registration proceeding No. 9667, and certified copies of said decision be attached to each of the records of the three cases which are the subject matter of the present decision,
6. In all other respects the plaintiffs’ petition is denied, without express pronouncement as to costs. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña, Villamor and Johns, JJ., concur.