EN BANC

[G.R. No. L-25563. July 28, 1972.]

MARIANO TAMAYO, petitioner, vs. AURELIO CALLEJO and the

HON. COURT OF APPEALS, respondents.

Marcelino T . Macaraeg for petitioner.

Hermogenes S. Decano for private respondent.

SYLLABUS

1. CIVIL LAW; EXPRESS TRUST; PRESCRIPTIVE PERIOD STARTS

FROM REPUDIATION. — Where an implied trust was created in favor of
Domantay by the erroneous inclusion in the Tamayo brothers' certificate of
title of the parcel of land formerly sold by their parents to Domantay (who in
turn sold it to Aurelio Callejo), and on June 28, 1918, Mariano Tamayo, on his
behalf and that of his brother Marcos, expressly recognized the said previous
sale by their parents to Domantay, such express recognition had the effect of
imparting to the aforementioned trust the nature of an express trust which is
not subject to the statute of limitations, at least, until repudiated, in which
event the period of prescription begins to run only from the time of the
repudiation. In the instant case, repudiation took place only in early June,
1952, when Mariano Tamayo rejected Callejo's demand that the disputed
portion be excluded from TCT No. 5486 in the former's name. When the
instant case for reconveyance was filed on June 25, 1952, the period of
prescription had barely begun to run.
2. ID.; POSSESSION; IMPLIED WHERE TITLE IS ACKNOWLEDGED AND
RIGHT TO RECONVEYANCE GRANTED. — Petitioner's pretense "that the Court
of Appeals erred in holding that the petitioner's failure to appeal from the
decision that did not grant him affirmative relief on the matter of possession,
constituted res adjudicata thereon", is manifestly devoid of merit, for the
Court of Appeals had explicitly acknowledged Callejo's title over the disputed
land and declared the same reconveyed to him. This necessarily implied that
Callejo is entitled to remain in possession of said land.
3. REMEDIAL LAW; EVIDENCE; THEORY OF NEGATIVE PREGNANT
APPLIED WHERE ARGUMENT DOES NOT DENY THE EXISTENCE OF
SUBSTANTIAL EVIDENCE IN SUPPORT OF THE CONTESTED CONCLUSION OF
FACT. — Petitioner's argument that the conclusion of the Court of Appeals to
the effect that Lot No. 12340 was acquired by respondent Callejo from
Maximo Rico "is not supported by any direct testimonial evidence", is in the
nature of a negative pregnant. It does not deny the existence of indirect
testimonial evidence, such as the circumstances considered by the Court of
Appeals. Neither does it assail the existence of direct documentary evidence,
such as petitioner's admission in Exhibit 1. In short, it does not deny the
existence of substantial evidence in support of the contested conclusion of
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 fact of the Court of Appeals.
4. ID.; APPEALS; FINDINGS OF FACT OF COURT OF APPEALS NOT
SUBJECT TO REVIEW BY THE SUPREME COURT. — The finding of the Court of
Appeals to the effect that the land sold by petitioner's parents to Domantay
is within the perimeter of the property covered by TCT No. 5486 is
essentially a question of fact, and, consequently, the finding to this effect is
final and not subject to review in the present appeal on certiorari.
5. ID.; ID.; ISSUE NOT RAISED IN THE LOWER COURT CANNOT BE
RAISED FOR THE FIRST TIME ON APPEAL. — Petitioner questions the right of
Callejo to demand a reconveyance, insofar as it may affect the portion of
70,000 square meters sold by him to Proceso Estacio, upon the ground that
the latter is a purchaser in good faith for value. This is, however, a defense
not available to petitioner herein, aside from the fact that he has not even
pleaded it in the trial court or otherwise raised it either in that court or in the
Court of Appeals.

DECISION

CONCEPCION, C.J : p

This action, initiated in the Court of First Instance of Pangasinan, was

brought by Aurelio Callejo, originally against Mariano Tamayo only, and,
later, against his brother Marcos Tamayo, also, for the reconveyance of the
northern portion of a parcel of land formerly covered by Original Certificate
of Title No. 2612, in the names of said brothers. In due course, said court
dismissed the complaint, with costs against the plaintiff. The latter appealed
to the Court of Appeals which, in turn, rendered a decision the dispositive
part of which reads:
"IN VIEW WHEREOF, judgment must have to be as it is hereby,
reversed, and the land in question claimed in par. 2 of the original and
amended complaint and graphically shown in Exh. Q in the name of
appellant, is declared reconveyed unto him, but the expenses of
registration of this decision once it should have become final, shall be
at his, appellant's cost; no other pronouncement as to costs whether
here, whether in Lower Court; all other claims between appellant and
appellee within their respective pleadings are hereby dismissed."

It appears that the spouses Vicente Tamayo and Cirila Velasco-Tamayo

owned a parcel of land in the barrio of Oalsic or Gualsic, between the
municipalities of Alcala and Malasiqui, Pangasinan. Prior to February 1, 1912,
said spouses sold part of the northern portion of said land, with an area of
22,125-1/3 square meters, to Fernando Domantay, who took possession
thereof. Sometime after this sale, but before said date, Vicente Tamayo died.
His widow having waived her rights to the remaining portion of their original
property in favor of her children Mariano Tamayo and Marcos Tamayo, these
brothers were, on February 1, 1912, declared, in Civil Case No. 136 of the
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 Court of First Instance of Pangasinan, sole heirs of the deceased. On
September 29, 1913, Mariano Tamayo and Marcos Tamayo applied, in
Cadastral Case No. 61, G.L.R.O. Record No. 10548 of the same court, for the
registration in their names, of a tract of land of about 383,509 square
meters, alleging that they had thus inherited the same from their deceased
father.
After appropriate proceedings, judgment was rendered, directing the
registration, in the name of Mariano Tamayo and Marcos Tamayo, of
205,421 square meters only of the land applied for, said applicants having
acknowledged that the remaining portion thereof belonged to the estate of
Gregorio Flor Mata, deceased. Upon the issuance of the corresponding
decree thereafter, said OCT No. 2612 was, on November 15, 1915, issued in
favor of the brothers Mariano Tamayo and Marcos Tamayo. Not long after, or
on August 22, 1918, Fernando Domantay sold his above-mentioned land of
22,125-1/3 square meters to Aurelio Callejo, who took possession thereof
since then. Subsequently, or on May 23, 1930, Marcos Tamayo sold his
undivided share in the property covered by OCT No. 2612 to his brother
Mariano Tamayo, who, accordingly, obtained, on May 26, 1930, Transfer
Certificate of Title No. 5486 in his name, in lieu of OCT No. 2612. Then, on
February 24, 1940, Mariano Tamayo sold 70,000 square meters, more or
less, on the western portion of said property, to Proceso Estacio, upon whose
request surveyor Fidel Diaz went, sometime in June 1952, to the land
covered by said TCT No. 5486, for the purpose of preparing a subdivision
plan and segregating the seven (7) hectares thus conveyed by Mariano
Tamayo, but Diaz did not accomplish his purpose, for he was not allowed by
Callejo to enter the portion held by the latter. What is more, Callejo asked
Mariano Tamayo to cause to be excluded from TCT No. 5486 the land held by
the former, but the latter refused to do so. Hence, on June 16, 1952, Callejo
registered his adverse claim over said land, which claim was annotated in
TCT No. 5486.
Then, on June 25, 1952, Callejo filed, with the Court of First Instance of
Pangasinan, his present complaint, for reconveyance and damages, against
Mariano Tamayo. The complaint was later amended to include Marcos
Tamayo as one of the defendants, he having, meanwhile, reacquired his
share in the land covered before by OCT No. 2612, and then TCT No. 5486.
Having failed to answer the amended complaint, defendant Marcos Tamayo
was declared in default, whereas defendant Mariano Tamayo filed his answer
with counterclaim. His main defense was that the land claimed by Callejo is
outside the perimeter of the area covered by the aforementioned certificates
of title. In his amended answer, Mariano Tamayo pleaded, also, the statute
of limitations. After due trial, said court rendered a decision dismissing the
complaint, upon the ground that the land purchased by Fernando Domantay
from the parents of Mariano and Marcos Tamayo is not included in said titles.
On appeal taken by plaintiff Callejo, this decision was reversed by the Court
of Appeals, which found, as a fact, that the land claimed by him is part of the
land covered by the aforementioned certificates of title, and overruled the
plea of prescription set up by Mariano Tamayo, upon the theory that the title
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 to said portion of land now claimed by Callejo, and, before, by Fernando
Domantay, is held in trust by the Tamayos and that the action to enforce
said trust does not prescribe. The case is now before Us on petition for
review filed by Mariano Tamayo. The petition was, at first denied by minute
resolution, which was later reconsidered and the petition given due course.
In his brief before this Court, Tamayo maintains that the Court of
Appeals has erred: (1) "in not holding that the respondent Aurelio Callejo's
cause of action, if any, had already prescribed"; (2) "in holding that the
petitioner's failure to appeal from the decision that did not grant him
affirmative relief on the matter of possession, constituted res adjudicata
thereon"; (3) "in disregarding the judicial admission made by the respondent
Callejo and his counsel"; (4) "in making conclusions not supported by the
facts on record"; and (5) "in not affirming the decision rendered by the trial
court."
Under his first assignment of error, Tamayo argues that if the
erroneous inclusion in his certificate of title of the parcel of land formerly
sold by his parents to Fernando Domantay created, by operation of law, an
implied trust, the corresponding action for reconveyance of said parcel
prescribed ten (10) years from the accrual of the cause of action, on
November 15, 1915, when OCT No. 2612 was issued, or long before the
institution of this case on June 25, 1952.

It should be noted, however, that although the trust created by the

application for registration filed by Mariano and Marcos Tamayo, on or about
September 29, 1913, and the inclusion in OCT No. 2612, issued in their
names, on November 15, 1915, of the tract of land previously sold by their
parents to Fernando Domantay — and later conveyed by him to Aurelio
Callejo — may have had a constructive or implied nature, its status was
substantially affected on June 28, 1918, by the following facts, namely: On
the date last mentioned, Fernando Domantay and petitioner Mariano
Tamayo — the latter acting in his own behalf and on that of his brother
Marcos Tamayo — executed the public instrument Exhibit I whereby Mariano
Tamayo explicitly acknowledged that his deceased parents, Vicente Tamayo
and Cirila Velasco, had sold to Fernando Domantay, for the sum of P200, the
parcel of land of about 22,125-1/3 square meters, then held by the latter,
and stipulating, inter alia, that Fernando Domantay is the absolute owner of
said land, free from any lien or encumbrance thereon, and that, in view of
the sale thus made by his parents, he (Mariano Tamayo) "quedo responsable
al susodicho Don Fernando Domantay, sus herederos y causa habientes por
la propiedad, cuyo titulo me comprometo a defender contra las
reclamaciones . . . de quienes las presentare." 1
This express recognition by Mariano Tamayo — on his behalf and that
of his brother Marcos Tamayo — of the previous sale, made by their parents,
to Fernando Domantay had the effect of imparting to the aforementioned
trust the nature of an express trust — it having been created by the will of
the parties, "no particular words" being "required for the creation of an
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 express trust, it being sufficient that a trust is clearly intended" 2 — which
express trust is a "continuing and subsisting" trust, not subject to the statute
of limitations, at least, until repudiated, in which event the period of
prescription begins to run only from the time of the repudiation. 3 The latter
did not take place, in the case at bar, until early in June, 1952, when Mariano
Tamayo rejected Aurelio Callejo's demand that the now disputed portion be
excluded from TCT No. 5486 in the former's name. But, then, the case at bar
was filed weeks later, or on June 25, 1952, when the period of prescription
had barely begun to run.
It is thus apparent that the Court of Appeals did not err in overruling
the plea of prescription.
Under his second assignment of error, petitioner Tamayo maintains
that "the Court of Appeals erred in holding that the petitioner's failure to
appeal from the decision that did not grant him affirmative relief on the
matter of possession, constituted res adjudicata thereon." This pretense is
manifestly devoid of merit, for the Court of Appeals had explicitly
acknowledged Callejo's title over the disputed land and declared the same
reconveyed to him. This necessarily implied that Callejo is entitled to remain
in possession of said land.
The third assignment of error impugns the following observations
made in the decision of the Court of Appeals:
". . . it is true that appellees sought to show that it was outside of
their titled land, and north of this, and is now identified as Lot 12340 of
the Malasiqui cadastre, and peculiarly enough, there is an answer in
cross by appellant himself that might indicate that he indeed admitted
that this land in question is Lot 12340 of the Malasiqui cadastre, tsn.
21, Abalos, but his counsel must have apparently discovered that this
was an error, so much so that even in Lower Court, in the
memorandum that he filed, he contended that the questioned land
could not be Lot 12340, R.A., p. 48, so that even were this testimony be
given the category of a judicial admission, Rule 129, sec. 2 of the
Revised Rules of Court, the same must have to give way to the truth if
the latter were shown to be otherwise from the evidence, because then
it would have been shown to have been due to palpable mistake, and
let it be remembered that technical numerations of their lots very
probably are not known with exactness by law witnesses; . . ."

Petitioner maintains that "it has not been shown by clear evidence"
that respondent Callejo had made the admission in question "through
palpable mistake"; and that Callejo's counsel and said appellate court had, in
turn, admitted the inexistence of evidence of such "palpable mistake."
The Court of Appeals did not make the admission imputed thereto.
Neither did it "disregard" the admission of Callejo. The latter is to the effect
that in cadastral case No. 92, Cadastral Record No. 1860, he had asserted
his claim to the "land in question" by filing an answer — dated June 25, 1952
— which refers to Lot No. 12340 of the cadastral survey. Callejo's counsel
had, also, made a similar admission, in the trial court. Callejo did not admit,
however, that Lot No. 12340, is the property conveyed to Fernando
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 Domantay — his predecessor in interest — by the parents of Mariano and
Marcos Tamayo. Needless to say, in the answer (Exhibits P and 1) filed by
him in said Case No. 92, on June 25, 1952, to which petitioner referred in
connection with said "admission" — Callejo could not have legally claimed
any portion of Lot No. 12341 — covered by TCT No. 5486, in the name of
Mariano Tamayo — for the very reason that the latter's right to the
registration of this Lot 12341 had already been settled in the decision and
decree upon which OCT No. 2612 — from which said TCT No. 5486 has been
derived — was based and such decision is no longer subject to review,
although without prejudice to the corresponding action for reconveyance, if
proper. Hence, coetaneously with the filing of said answer (Exhibits P and 1),
Callejo had commenced the present action for reconveyance and damages.
Thus, Callejo claimed both Lot No. 12340 and the northern portion of
Lot No. 12341. Indeed, said answer describes the southern boundary of said
Lot No. 12340 as Lot No. "12341, Mariano Tamayo — portion claimed by
Aurelio Callejo." Thus, Callejo alleged in said pleading that, aside from Lot
No. 12340, he claimed, also, a portion of the land included in Lot No. 12341.
What is more, he alleged, in paragraph 5 of the aforementioned answer, that
he had acquired said Lot No. 12340 by "purchase from Maximo Rico," not
from Fernando Domantay, his predecessor in interest with respect to his title
to the northern portion of Lot No. 12341. And this is borne out by the very
testimony of petitioner herein, who admitted that the property inherited by
him from his parents is bounded on the north by the land formerly belonging
to said Maximo Rico, and, more significantly, by the deed Exhibit I, in which
petitioner acknowledged that the property sold by his parents to Fernando
Domantay is bounded "al norte, con el terreno de la propiedad de Maximo
Rico." These admissions by petitioner herein leave no room for doubt that
Lot No. 12340 is not the property so conveyed to Domantay and then
assigned by the latter to Callejo.
The full text of the finding of the Court of Appeals — of which the
contested observations are but a part — reads:
"CONSIDERING: Therefore, that question of whether or not
appellees' titled land had included appellant's portion bought from
Fernando Dumantay, and since an examination of the evidence would
show that the said land that had been bought by appellant was
bounded on the North by Maximo Rico and Moises Rosal, on the East
by Felomena Macaraeg, on the South by Mariano Tamayo and on the
West by Maria Olea, see Exhs. F and I, while the land that had been
titled in the name of defendants was bounded on the North by Felipe
Novida, on the NE by properties of Felomena Macaraeg and Santiago
Tamayo, on the South by property of the estate of Gregorio Flor Mata,
on the West by Macaro Creek and on the Northwest by the property of
Felipe Novida, see Exh. B, and since appellant's purchase referred only
to a portion of the Tamayo land, the fact that it was bounded on the
south by Mariano Tamayo according to Exhs. E and I would support his
claim that said portion was really part, the northern part, of the original
Tamayo land; the fact that the boundary on the north of the land he
purchased was Maximo Rico and Moises Rosal as shown in Exhs. F and
I, in the light of the proven fact that Maximo Rico was the successor in
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 interest to that land toward the north, formerly of Felipe Novida, — and
this is admitted by appellee himself:
'Q. That land north of the land described in your title TCT
5486 was later owned by Maximo Rico, is it not?
'A. Not only Maximo Rico, also Fernando Dumatay, tsn. 39,
Rollazo.'
which confirms the testimony of witness, Fernando Rico, son of
Maximo:
'Q. That land bought by your father from Matias Lomibao
used to be the property of one Felipe Novida, is that
right?
'A. Matias Lomibao bought that land from Felipe Novida
and Matias Lomibao sold that land to Maximo Rico.'
tsn. 36, Rollazo;
therefore, the portion bought by appellant in 1918 is persuasively
shown by these details to be really that northern portion within
the former Tamayo land; it is true that appellees sought to show
that it was outside of their titled land, and north of this, and is now
identified as Lot 12340 of the Malasiqui cadastre, and peculiarly
enough, there is an answer in cross by appellant himself that
might indicate that he indeed admitted that this land in question
is Lot 12340 of the Malasiqui cadastre, tsn. 21, Abalos, but his
counsel must have apparently discovered that this was an error,
so much so that even in Lower Court, in the memorandum that he
filed, he contended that the questioned land could not be Lot
12340, R.A., p. 48, so that even were this testimony to be given
the category of a judicial admission, Rule 129, sec. 2 of the
Revised Rules of Court the same must have to give way to the
truth if the latter were shown to be otherwise from the evidence,
because then it would have been shown to have been due to a
palpable mistake, and let it be remembered that technical
numerations of their lots very probably are not known with
exactness by law witnesses; at any rate, and indeed, a further
examination of the proofs would demonstrate that this Lot 12340
is not really the land that had been bought by appellant from
Fernando Dumatay, but is a land north of that; because:
1st. — This Lot 12340 is shown by the very Exh. 2 of defendants-
appellees, to have been acquired by appellant, not from Fernando
Dumatay but from Maximo Rico, — see par. 5 thereof;
2nd. — The fact that appellant had bought a portion of said
Maximo Rico's land north of the titled property that is to say, north of
Lot 12341, is admitted by appellee himself in cross:
'Q. That land north of the land described in your title,
TCT 5486 was later owned by Maximo Rico, is it not?
'A. Not only Maximo Rico, also Fernando Dumatay.
'Q. Who is the owner now of that land north of the land
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 covered by TCT 5486?
'A. It was sold to Aurelio Callejo, now the heirs of Aurelio
Callejo and Fernando Dumatay.' tsn. 39, Rollazo,
witness, Mariano Tamayo;

3rd. — This can only mean that Lot 12340, which is 4 the Lot
12341, — which is appellee's land — had been acquired by
appellant Aurelio, not from Fernando Dumatay, — but from
Maximo Rico, — successor in interest of Felipe Novida, the former
boundary owner north of the titled land, as shown indeed in
appellant's answer in the cadastral case, Exh. 2, exhibited by
appellees themselves;

4th. — Appellee's own exhibit 2, which is a verified copy of

the plan in the Bureau of Lands of Lots 12340 and 12341, would
indicate that Lot 12340 is as so testified by surveyor Diaz, outside
of land surveyed in Plan 11-7384 which is the plan of the titled
property; but on the other hand, surveyor Diaz it must be
remembered, also prepared and identified his own plan, Exh. Q,
which is a 'sketch plan of 11-7384 — Amd', and here it is
graphically seen that Lot A thereof, therein denominated as part of
the land described in the plan 11-7384-Amd. — is for and in the
name of, 'Aurelio Callejo', so much so that it even indicates the
position and location of Aurelio's house."

None of the premises on which the foregoing finding is based has been
assailed by petitioner herein. Hence, the third assignment of error is clearly
untenable.
Under petitioner's fourth assignment of error, it is urged that the
conclusion of the Court of Appeals to the effect that Lot No. 12340 was
acquired by respondent Callejo from Maximo Rico "is not supported by any
direct testimonial evidence." This argument is in the nature of a negative
pregnant. It does not deny the existence of indirect testimonial evidence,
such as the circumstances pointed out in the above-quoted finding of the
Court of Appeals. Neither does it assail the existence of direct documentary
evidence, such as petitioner's aforementioned admission in Exhibit I. In
short, it does not deny the existence of substantial evidence in support of
the contested conclusion of fact of the Court of Appeals.
Apart from the foregoing, this assignment of error, like the third, tends
to impugn the finding of the Court of Appeals to the effect that the land sold
by petitioner's parents to Domantay is within the perimeter of the property
covered by TCT No. 5486. This, however, is essentially a question of fact,
and, consequently, the finding to this effect is final and not subject to review
in the present appeal on certiorari. 5 Indeed, its determination would require
an examination of all the evidence introduced before the trial court, a
consideration of the credibility of witnesses, and of the circumstances
surrounding the case, and their relevancy or relation to one another and to
the whole, as well as an appraisal of the probabilities of the entire situation.
6 It would thus abolish the distinction between an ordinary appeal on the one

hand, and a review on certiorari, on the other, and thus defeat the purpose
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 for which the latter procedure has been established. In short, the issue raised
in petitioner's third and fourth assignments of error is basically one of fact,
not reviewable by Us on certiorari.
Under the last assignment of error, petitioner questions the right of
Callejo to demand a reconveyance, insofar as it may affect the portion of
70,000 square meters sold by him to Proceso Estacio, upon the ground that
the latter is a purchaser in good faith for value. This is, however, a defense
not available to petitioner herein, aside from the fact that he has not even
pleaded it in the trial court or otherwise raised it either in that court or in the
Court of Appeals.
We note that the dispositive part of the decision of the Court of Appeals
declares that the land in question is "declared reconveyed" to said
respondent. Such reconveyance cannot, however, be deemed made without
a survey defining with precision the metes and bounds of the area to be
segregated for herein respondent, Aurelio Callejo. Accordingly, this case
should be remanded to the court of origin for the preparation of a
subdivision plan of the portion thus to be segregated and the judicial
approval of such plan, and only after such approval has become final and
executory may the recoveyance be either made or deemed effected.
SO MODIFIED, the appealed decision of the Court of Appeals is hereby
affirmed in all other respects, with the costs of this instance against
petitioner Mariano Tamayo. It is so ordered.
Reyes, J .B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Footnotes
1. I am responsible to said Mr. Fernando Domantay, his heirs and successors for
the property, the title to which I bind myself to defend against the claims of
whomsoever shall file the same.
2. Julio v. Dalandan, L-19012, Oct. 30, 1967.
3. See Fabian v. Fabian, L-20449, Jan. 29, 1968; Buencamino v. Matias, L-
19397, April 30, 1966; De Leon v. Molo-Peckson, L-17809, Dec. 29, 1962; J.
M. Tuason & Co. v. Magdangal, L-15539, Jan. 30, 1962; Tolentino v. Baltazar,
L-14597, March 27, 1961; Candelaria v. Romero, L-12149, Sept. 30, 1960.
4. Something must have been omitted inadvertently.

5. Municipality (now City) of Legaspi v. A. L. Ammen Transp., L-22377, Nov. 29,

1968; Insular Lumber Co. v. Court of Appeals, L-23857, Aug. 29, 1969; Agolto
v. Court of Appeals, L-23025, June 30, 1970; Garcia v. Court of Appeals, L-
26490, June 30, 1970; Vda. de Serrano v. Court of Appeals, L-28332, June 30,
1970; Alvero v. Reas, L-28337, Sept. 30, 1970.

6. See Lim v. Calaguas, 83 Phil. 796, 799; Fortus v. Novero, L-22378, June 29,
1968; Mackay Radio & Telegraph Co., Inc. v. Rich, L-22608, June 30, 1969.

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