EN BANC

G.R. No. 22488; February 2, 1925

ENRIQUE JOVELLANO and ISABEL JOYOSA, plaintiffs-appellees,

vs.
ANTONIA LUALHATI, ET AL., defendants.
LUCIO SOLMIRANO, appellant.

Aurelio Palileo for appellant.
No appearance for appellees.

MALCOLM, J.:

Defendant as appellant rest his case on this legal proposition: There is no cause of action against the vendor of real property to make him responsible for warranty in case of eviction unless said vendor is given notice of the suit for eviction. Although our local jurisdiction is silent on the subject, we think that counsel is right.

On November 6, 1911, Dionisia Solmirano, Lucio Solmirano, and Macario Solmirano sold to Enrique Jovellano a parcel of land situated in the municipality of Nagcarlan, Laguna, for P150. The deed of sale contained the usual covenant against eviction, namely: “That we, Dionisia, Lucio and Macario Solmirano, the vendors herein, agree, to answer in case of eviction and to warrant the property hereby sold.” In pursuance of this agreement, Jovellano entered upon the land.

On March 4, 1913, one Maxima Dorado instituted action in the justice of the peace court of Nagcarlan against Jovellano to recover the possession of the land. Maxima Dorado won her case against Jovellano. Instead of appealing from the decision, Jovellano presented a new complaint in the Court of First Instance of Laguna against the same Maxima Dorado to determine the ownership of the property. Jovellano was defeated again, and on appeal, this judgment was affirmed by the Supreme Court. (Jovellano vs. Dorado, R.G. No. 11881.¹)

The present action was initiated by Enrique Jovellano and his wife Isabel Joyosa against Lucio Solmirano, Macario Solmirano, and Antonia Lualhati, the daughter of Dionisio Solmirano, to recover from the defendants the price paid for the land, together with all the expenses incurred in improving it and in maintaining the suits. One of the grounds of the demurrer and one of the allegations of the defense was that defendants had not been notified as provided by law. The lower court decided the case in favor of the plaintiffs and against the defendant Lucio Solmirano who was ordered to pay the plaintiffs the sum of P462.73, with legal interest.

As supplemental to the foregoing statement of the case and the facts, it is only necessary to add that in none of the above cited cases were the Solmiranos cited to appear or made parties. However, Dionisia Solmirano was a witness and Lucio Solmirano may have been present in the court at the time of the trial. The trial judge argued that this was a substantial compliance with the law.

Section III of Chapter IV of Title IV of Book IV of the Civil Code, is given up to the subject of warranty. Article 1475 of the Code provides that eviction exists when by final judgment based upon a right prior to the sale, the vendee is deprived of the whole or any part of the thing purchased. The vendors shall be liable for the eviction even though the contract is silent on the subject. Then with other articles intervening, come articles 1481 and 1482 here applicable. They read:

ART. 1481. The vendor shall be bound to make good the warranty whenever it is proved that he was given notice, at the instance of the vendee, of the suit for eviction. In the absence of such notice the vendor shall not be bound to the warranty.

ART. 1482. The defendant vendee, within the time fixed by the Law of Civil Procedure for answering the complaint, shall cause notice thereof to be served upon the vendor or vendors within the shortest period possible.

This notification shall be made in the manner established in said law for the summoning of defendants.

The time to answer granted to the vendee shall be extended until the expiration of that granted the vendor or vendors to appear and answer the complaint, which periods shall be the same as those granted all defendants by the Law of Civil Procedure, counted from the notification prescribed by the first paragraph of this article.

Should the persons summoned to defend against the eviction fail to appear at the proper time and in the proper manner, the period in which to answer the complaint shall continue with regard to the vendee.

With all the silent facts and legal provisions before us, it is well to recall a few controlling points. The purchaser has been forced to surrender possession of the land to a third person having a paramount title. The purchaser now relies upon his covenant of warranty. The purchaser has given the vendor no formal notice of the suits for eviction. Nevertheless, the purchaser expects to recover from the seller of the land the purchase price and an additional amount sufficient to cover his losses.

Our researches disclose that the Spanish law on the subject of notice to the vendor in the case of covenants of warranty is much more rigorous than the French and Roman law. By the Code Napoleon, as adapted in the State of Louisiana, the warranty is lost in the absence of notification to the vendor, provided that the vendor can prove that he had good grounds of defense which he had lost in consequence of the vendee’s failure to call him. (Delacroix vs. Cenas’ Heirs [1829], 10 Martin [La.], 187; Kelly vs. Wiseman & Hinson [1859], 14 La Ann., 661; Bonvillain vs. Bodenheimer [1906], 117 La., VI La. Digest Ann., pp. 617 et seq.) Not so by the Spanish law. That law speaks both affirmatively and negatively. The buyer who fails to cite his vendor in warranty loses all recourse against him.

The commentator Manresa says:

No discussion, therefore, should be made here as to whether or not the vendor had means of defense. All of this counts very little. There is only one condition to be complied with by the vendee, and that is to give notice of the complaint. Once this is proven, his right to the warranty is perfect, and the vendor cannot set up anything against it. This is the preparation for the exercise of the action for eviction spoken of by us the commentary on the preceding article; the warranty, according to article 1480, cannot be enforced until a final judgment is rendered, but the action for eviction is prepared, before that judgment, by causing a notice of the complaint to be given to the vendor. (Comentarios al Codigo Civil Español, Tomo X, p. 212.)

The only doubtful point relates to that part of article 1482 of the Civil Code which refers to the Law of Civil Procedure. But as the Spanish Ley de Enjuiciamiento Civil has disappeared, the article must be considered as referring to the present Code of Civil Procedure. (Willard’s Notes to the Spanish Civil Code, p. 85.) Section 114 of the Code of Civil Procedure could easily be taken advantage of to join the vendor as codefendant. The purchaser threatened with eviction, who wishes to preserve his right of warranty against his vendor, should call in the vendor to defend the action which has been instituted against the purchaser.

We hold articles 1481 and 1482 of the Civil Code as in full force and effect, said articles to be supplemented by such pertinent sections of Code of Civil Procedure as should be invoked in particular cases.

In accordance with the prayer of the appellant, the judgment is reversed and the complaint dismissed without special pronouncement as to costs in either instance. So ordered.

Johnson, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.

Footnotes

¹Promulgated January 13, 1920, not reported.

Batas Pinas