On June 20, 1940, Mariano Garchitorena filed a motion praying that subdivision plan Psu-66063-Amd., marked as Annex E, be approved and that it be decreed that certificates of title be issued in his name on lots 2, 3, and 4 of the original plan Psu-66063 and upon lots 1, 5, 6, 7, and 8 of the subdivision plan Psu-66063-Amd.
The movant alleged that on May 14, 1931, a decision was rendered by the lower court granting Rita Garchitorena as heiress of her father Andres, title over four lots the same described in her original application, subject to lien in favor of Mariano Garchitorena and other creditors, with the exclusion of about 500 hectares belonging to Ramon and Jose Alvarez, about 300 hectares of land of the public domain, a portion of 18 hectares belonging to Hermogenes P. Obias and another portion of 24 hectares of land of the public domain, with the exception of 4 hectares belonging to Januario Alvarez, all said positions being included in lot number 1. It is also alleged that after said judgment was modified by the Supreme Court and some steps have been taken as a result of said modification, lots 1, 2, 3, and 4 of land Psu-66063 were adjudicated to Mariano Garchitorena in consideration of the amount of P28,745.93, a deed of sale having been executed to said effect on September 8, 1935, which was approved by the lower court on April 26, 1940, and that Mariano Garchitorena bought the 500 hectares of Ramon and Jose Alvarez on April 27, 1939.
Several persons appeared to oppose the motion, but only three of them came to us appealing against the lower court’s order dated June 28, 1941, decreeing the issuance of certificate of titles in favor of Mariano Garchitorena on lots 2, 3, and 4 of the original plan Psu-66063, and on lots 6 and 8 of the subdivision plan Psu-66063-Amd., and on lots 1, 6, and 7 of the same subdivision plan.
The appellants are H. P. Obias, Ana Pataan and Vicente Sotto.
We will deal separately with their respective contentions.
OPPOSITION OF H. P. OBIAS
This oppositor contends that the 300 hectares ordered to be excluded from lot number 1 as land of public domain, as provided in the lower court’s decision of May 14, 1931, in fact should measure not only 300 hectares but 961 hectars, 38 ares and 9 centares.
The lower court disposed of the opposition by stating that the decision of May 14, 1931, was amended, and the Supreme Court affirmed it as amended, and that the subdivision plan Psu-66063-Amd. is in conformity with the terms of said amended decision.
Appellant Obias complains in his appeal that the lower court erred in awarding to Mariano Garchitorena the title on lots l, 6, and 7 of subdivision plan Psu-66063-Amd., belonging originally to Ramon and Jose Alvarez.
No law and no authority has been invoked in support of appellant’s contention, although he advances several reasons in support of his theory. The reasons advanced are stated in his brief as follows:chanrob1es virtual 1aw library
1. Ramon Alvarez did not seek any affirmative relief in his opposition to the application for registration of Rita Garchitorena so that what the Court did in rendering its decision was simply to order its segregation from the plan, and hence his supposed successor in interest, Mariano Garchitorena, could not be entitled to the issuance of a degree of registration in the name of the latter.
"2. Because the decision rendered in this case is already final, and hence cannot be amended.
"3. Because the duty of the lower Court in regards to this case is simply to comply with that final judgment so that inasmuch as the dispositive part orders the segregation from the plan of the portions awarded to Roman Alvarez, the lower Court is duty bound to comply with that mandatory order.
"4. Because the issuance of a decree of registration in favor the movant-appellant for the portions awarded to Ramon Alvarez and Jose Alvarez would create an anomaly, in the sense that interested parties would be prejudiced thereby. There are several persons possessing portions of land within the land adjudicated to Ramon Alvarez and Jose Alvarez. They possessed these portions with a claim of right of ownership adverse to that of Ramon Alvarez and Jose Alvarez."cralaw virtua1aw library
We do not find merit in appellant’s contention.
Section 38 of the Land Registration Act No. 496, as amended by Act No. 3621, which took effect on December 5, 1929, provides:jgc:chanrobles.com.ph
"If the court after hearing finds that the applicant or adverse claimant has title as stated in his application or adverse claim and proper for registration, a decree of confirmation and registration hall be entered . . ."cralaw virtua1aw library
In the case of Garchitorena Vda. de Centenera v. Obias (58 Phil., 21, 23), the Supreme Court declared that from the evidence "it conclusively appears that the late Jose Alvarez and his successors had a considerable extent of land in the same place where the applicant’s land is situated, and taking also into account that the land was surveyed for purposes of registration, we find that the weight of the evidence indicates that the land claimed by the opponent Ramon Alvarez had been included in the applicant’s plan. This land has an area of 500 hectares. According to Ramon Alvarez, it appears that his father, Ibo Albarez, had held the tract since 1905 and that at the death of said Ibo Alvarez, Ramon Alvarez and his co-owner, Alvarez, entered into possession and have remained therein since."cralaw virtua1aw library
From the above, there cannot be any doubt that Ramon and Jose Alvarez have been finally declared as the owners of the 500 hectares in question, and such declaration is good for all purposes, including the issuance of the corresponding certificates of title to said owners or their successors in interest, such as buyer Mariano Garchitorena. Appellant’s allegation that the decree of registration in or of Mariano Garchitorena for the portions awarded to Ramon and Jose Alvarez would prejudice interested parties is groundless, because all interested parties were given full opportunity to advance and present their respective claims since the original application was duly published and the proceedings for registration, which are rem in character, were begun, it appearing that the original application included the 500 hectares which were any adjudicated to Ramon and Jose Alvarez. Anybody and everybody who had any legitimate claim to said 500 hectares or any part thereof, if they wanted to, could have appeared before the court and presented their claims. If they failed to do it at the opportune time, it is now too late for them to complain.
APPEAL OF ANA PATAAN
This appellant complains that the lower court erred holding that the free patent title number 1406 of said la Pataan is null and void ab anitio.
The lower court’s action is based upon the fact that when the free patent title number 1406 was issued in 1937, the land of 10 hectares covered by it was part of a larger tract which was declared private property according to the decision of May 14, 1931, which was later affirmed by the Supreme Court, very much earlier than the issuance of the free patent title in question.
We do not find any error in the lower court’s action.
The decision of the Supreme Court declaring the land in question as private property was promulgated on March ·4, 1933 (Garchitorena Vda. de Centenera v. Obias, 58 Phil., 21), that is more than four years before the issuance of the free patent title in question on March 21, 1937.
Upon this conclusion, it will serve no purpose to pass upon the question raised by appellant Pataan as to the court’s denial of her motion for reopening, besides the fact that the basis of her contention, that she has not been mentioned in the original application as possessor of the land which she is claiming, appear to be flimsy . the fact that she is the wife of Senen Pandai who was appointed by Jose N. Garchitorena, the administrator of the estate of Andres Garchitorena, to take care of the lands in question.
APPEAL OF VICENTE SOTTO
This appellant alleges that on March 4, 1931, the Court l of First Instance of Manila rendered a judgment ordering 3 Rita Garchitorena Vda. de Centenera to pay him the amount of P960.84; that by virtue of a writ of execution issued on March 22, 1932, the lots in question were attached and sold at public auction, the sheriff issuing to appellant the deed of sale on August 7, 1934, which was later registered in the office of the Register of Deeds of Camarines Sur.
The lower court found upon the evidence that lots 2, 3, and 4 of original plan Psu-66063 and lots 5 and 8 of the subdivision plan Psu-66063-Amd. were adjudicated, by virtue of a decision of the Supreme Court on March 4, 1933, to Rita Garchitorena as heiress of her father, Andres Garchitorena, the adjudication subject to sections 712 and 713 of the Code of Civil Procedure.
Following directives in said decision, Mariano Garchitorena and brothers filed a complaint in the Court of First Instance of Camarines Sur against Rita Garchitorena, and secured a judgment on December 20, 1934, ordering Rita Garchitorena to deliver to the administrator of the deceased Andres Garchitorena the possession of the lands decreed to be adjudicated to her in this case, with the declaration that the creditors of the intestate of Andres Garchitorena will have the preferent right of retention upon said lands for costs and other expenses caused by delays, and that the judicial administrator of the intestate was authorized on July .8, 1935, against opposition of appellant Vicente Sotto, to sell at public auction the above five lots in order to pay the credits of Mariano, Flor. and Marcel Garchitorena.
Oppositor Vicente Sotto appealed against the order to the Supreme Court, which affirmed the appealed order, overruling later on several motions for reconsideration filed by said Appellant
The judicial administrator, consequently, sold at public auction on September 7, 1935, the lots in question to Mariano Garchitorena, who happened to have appeared as the only buyer, at the price of P28,745.93. The deed of sale as executed on September 8, 1935, and approved by the court on April 26, 1940, against the opposition of appellant Vicente Sotto.
On April 27, 1939, Mariano Garchitorena bought the hectares adjudicated by the Supreme Court to Ramon and Jose Alvarez, comprising lots 1, 6, and 7 of the subdivision plan Psu-66063-Amd.
From the foregoing undisputed facts, no issue of facts having been raised in any of the appeals in this case, it appears that Rita Garchitorena has never become the owner of the lots in question, it appearing that the adjudication made in her favor was subject to the provisions of sections 712 and 713 of the Code of Civil Procedure, which in substance means without prejudice to the rights of the creditors of her deceased father, Andres Garchitorena.
Although the Civil Code provides that succession takes effect from the time of the death of the owner, such provision does not create a succession which, as a matter of fact, does not exist, as in the case of what the deceased Andres Garchitorena could have left to his daughter Rita.
In the contemplation of the law, no succession shall be declared unless and until a liquidation of the assets and debts left by the deceased shall have been made and all his creditors fully paid. Until a final liquidation is made and all debts are paid, there is no way of determining if his heirs may inherit anything.
Until such a liquidation has been made, the right of heirs to inherit remains to be inchoate. It partakes of the nature of hope. Liquidation is necessary to determine; if the deceased has left any liquid asset which may be transmitted to his heirs. Before any liquid asset is determined, all debts and obligations must first be liquidated and paid.
In the instant case it appears that after the lots in question had been sold at public auction to Mariano Garchitorena at the price of P28,745.93, with which the debt of the deceased Andres Garchitorena to Mariano, Flor, and Marcel Garchitorena were paid, no property or asset remained to be adjudicated to his daughter Rita Garchitorena. Consequently, at the public auction in which appellant alleges he bought the lots in question from Rita Garchitorena to collect the amount of P960.84, as a matter of fact appellant bought nothing, it appearing that what he bought as belonging to Rita Garchitorena did not belong to the latter.
Appellant alleges that he cannot be prejudiced by judgments or orders issued in other cases in which he has not been a party, and said other cases are the petition for land registration filed by Rita Garchitorena, decided by the Court of First Instance of Camarines Sur on May 14, 1931, with the modification decreed by the Supreme Court on March 4, 1933 (58 Phil., 21); civil case No. P782 of the Court of First Instance of Camarines Sur instituted by Mariano, Flor, and Marcel Garchitorena against Rita Garchitorena, to recover the lots in question, on the ground that said properties pertained really to the deceased Andres Garchitorena and should be made available to answer for the latter’s debts, and the intestate of Andres Garchitorena, case No. 2881 of the Court cf First Instance of Camarines Sur, in which proceedings took place ending in the sale of the lots in question to Mariano Garchitorena (SC-G. R. No. 44854).
In the latter case appellant filed on June 4, 1935, an opposition to have the properties in question sold to satisfy c]aims of Mariano, Flor and Marcel Garchitorena against the deceased Andres Garchitorena. In said opposition appellant alleged:jgc:chanrobles.com.ph
"Comparece Vicente Sotto, por si y en su propia representacion, mo tercerista en este asunto, y se opone a la mocion de Mariano Garchitorena y Marcel Garchitorena, de fecha 20 de Mayo de 1935, pidiendo la venta en privado o en publica subasta de las parcelas terreno descritas en la misma, por el fundamento de que el infrascrito es el unico y absoluto duerio de dichas parcelas de terreno.
"1. En los asuntos R. G. Nos. 36385 y 36547, titulados Rita hitorella Vda. de Centenera contra Hermogenes P. Obias Et. Al., ita Garchitorena Vda. de Centenera contra El Director de Terrenos otros, respectivamente, el Tribunal Supremo decreto, en decision arzo 4, 1933, que todas las parcelas de terreno descritas en la cionada mocion fuesen registradas a nombre de Rita Garchitorena (Gac. Of., Vol. XXXII, No. 18, de Febrero 10, 1934.)
"2. En el asunto No. 38722 del Juzgado de Primera Instancia de Manila, promovido por Vicente Sotto corntra Rita Garchitorena Vda. de Centenera, se dicto con fecha 31 de Mayo de 1931 sentencia en favor del demandante y contra la demandada; y, habiendose quedado firme y ejecutoria dicha sentencia, las parcelas de terreno en cuestion, que son las mismas descritas en la mocion de que se trata en el presente asunto, fueron vendidas en publica, subasta por el Sheriff Provincial de Camarines Sur, y adquiridas por el compareciente el 7 de Julio de 1933 en que se verifico dicha venta en publica subasta.
"3. El dia 1.o de Septiembre de 1933 se expedio por el Sheriff de Camarines Sur en favor del comprador Vicente Sotto el correspondiente Certificado de Venta, sobre dichas parcelas de terreno, y dicho certificado de venta fue anotado en el Registro de la Propiedad de Camarines Sur correspondiente el 20 de Septiembre de 1933; y
"4. No habiendose ejercitado por las ejecutadas en el citado;asunto su derecho de retracto, dentro del plazo legal, el 6 de sto de 1934, el citado Sheriff Provincial de Camarines Sur expedio en favor de Vicente Sotto el certificado de venta absoluta, el cual fue igualmente anotado en el Registro de la Propiedad de Camarines Sur correspondiente en la misma fecha, y una Copia del cual se acompañia a este asunto y se marca como Exhibito ’A-T del infrascrito tercerista.
"De los hechos que preceden como se ve, resulta que el aqui tercerista, Vicente Sotto, adquirio las parcelas de terreno en cuestion en virtud de compra en publica subasta, anunciada y llevada a cabo por el Sheriff Provincial de Camarines Sur el 7 de Julio d 1933, o sea mucho antes de que este Juzgado dictara el 20 de Diciembre de 1934 su sentencia en el asunto No. 5782, titulado Mariano de Garchitorena, Flor Garchitorena y Marcel Garchitorena contra, Rita Garchitorena Vda. de Centenera y Jose N. Garchitorena en su capacidad de administrador judicial del abintestato del finado Andres Garchitorena."cralaw virtua1aw library
Appellant’s contentions were overruled by the Court of First Instance of Camarines Sur. Appellant appealed to the .Supreme Court, which, on December 5, 1938 (G. R. No. 44854), overruling again appellant’s contentions, among others, stated:jgc:chanrobles.com.ph
"Claiming to have acquired title to the land in question by reason of a sheriff’s sale made in his favor, the appellant, after obtaining a permission to intervene, filed a written opposition to the aforesaid motion of Mariano de Garchitorena, Flor Garchitorena and Marcel Garchitorena. The court below rejected this opposition, on the ground that, although the sheriff’s sale was made prior to the rendition of the judgment in civil case No. 5782, it could not prevail against the said judgment, in view of the fact that, prior to the sale, a notice of lis pendens was filed in connection with that case.
"In support of this appeal, it is now contended that the notice of lis pendens could not prejudice the right of the appellant to the land in question because such notice could only affect land registered under Act No. 496. Appellant further relies on section 194 of the Administrative Code, as amended, which in part provides that ’any registration made under this section shall be understood to be without prejudice to a third party with better right.’ The point thus raised is set at rest by the decisions of this court in Atkins, Kroll & Company v. Domingo, 46 Phil., 362, and Fetalino v. Sanz, 44 Phil., 691. In the latter case, this court held that a transferee pendente lite of real property in litigation is bound by a judgment against his predecessor in interest and is a proper but not an indispensable party.’
"Appellant also claims that he could not be affected by the judgment rendered in civil case No. 5782, because it was fraudulently obtained. This contention is without merit. The judgment in question must be presumed to be legal and valid, unless shown by conclusive evidence to have obtained through fraud. No such evidence exists in this case."cralaw virtua1aw library
The questions raised in the above opposition are substantially the same as those raised in the supplementary opposition filed by appellant in the case at bar.
When Mariano Garchitorena filed on February 24, 1940, a motion for the approval of the sale in his favor of the lots in question, appellant filed an opposition, dated March 11, 1940, reiterating his alleged rights by virtue of the levy and sale on execution in his favor. The opposition was overruled by an order dated April 26, 1940, in which the sale in favor of Mariano Garchitorena was approved. Appellant did not appeal against said order.
The decision of the Supreme Court of December 5, 38, in case G. R. No. 44854 and the unappealed order of the Court of First Instance of Camarines Sur dated April 26, 1940, and special proceeding No. 2881 had finally settled the questions raised by the Appellant
For all the foregoing, finding no merit in the appeals appellants H. P. Obias, Ana Pataan, and Vicente Sotto, the order of the lower court dated June 28, 1941, is affirmed, with costs against appellants.
, Paras, Pablo, Bengzon, Briones, Padilla and Tuason, JJ.
, concurring and dissenting:chanrob1es virtual 1aw library
I concur partly in the disposition of the case as regards the parcels of land decreed by this Court in G. R. Nos. 36385 and 35547 in favor of Rita Garchitorena, and dissent from the remainder of the majority decision which affects the parcels covered by the oppositions of the herein opponents-appellants.
These latter parcels, whose registration the majority decision also decrees in favor of movant-appellee Mariano Garchitorena, were never applied for in an application for registration, nor the subject of a like petition on the part of any opponent in the original registration cases which, after having been appealed to this court, were doketed and disposed of herein under G. R. Nos. 36385 and 36547 (see 58 Phil., 21). Those cases were instituted, prosecuted and decided under Act No. 496. The judgment of this Court disposing of said cases and promulgated on March 4, 1933, and elevated to the authority of res judicata seven years before the motion now under consideration was filed in the court below, and more than fourteen years ago today, upheld the oppositions filed by the Director of Lands, Hermogenes P. Obias (18 hectares), Ramon and Jose Alvarez (500 hectares), and Januario Alferez (24 hectares), and ordered the amendment of the Plan Psu-66063 "so as to exclude the portions of land pertaining to said opponents." No affirmative relief was granted said opponents in the sense of decreeing the registration in their favor of the parcels of land respectively covered by their oppositions.
Before the amendment of sections 34, 37, and 38 of Act No. 496 by sections 1, 2, and 3 of Act No. 3621, the court had no jurisdiction to decree in the same proceeding the registration in favor of the opponent, even though it should find that, as between the applicant and the opponent, the land belonged to the latter. In Tecson v. Corporacion de los PP. Dominicos (19 Phil., 79, 80), this Court, inter alia, said:jgc:chanrobles.com.ph
". . . this court has held heretofore that the jurisdiction of the Land Court extends no further than the inscription of the land described in its final decree and the enforcement of that decree, and that, even though the land described in the petition be found by the court, as between the petitioner and the oppositor, to be the property of the opponent, such land can not be inscribed in his name, the Land Court having, as we have said, no jurisdiction or power to do so. It naturally and necessarily follows that the opponent, if he desires the land of which he claims ownership to be registered in accordance with law, must begin a new proceeding in the Land Court for that purpose."cralaw virtua1aw library
In this consisted at that time, the difference between registration proceedings under Act No. 496 and those under Chapter VI of Act No. 926. (Sec. 64, latter Act.)
On December 5, 1929, section 34 of Act No. 496, it is true, was amended by section 1 of Act No. 3621, so that the second sentence thereof thereafter reads as follows:jgc:chanrobles.com.ph
". . . The answer (or opposition, as it is often called) shall state all the objections to the application, and shall set forth the interest claimed by the party filing the same and apply for the remedy desired, and shall be signed and sworn to by him or by some person in his behalf."cralaw virtua1aw library
Section 37 of Act No. 496 was also amended by section 2 Act No. 3621, so that it partly read as follows:jgc:chanrobles.com.ph
"SEC 37. . . .
. . . in a case where there is an adverse claim, the court shall determine the conflicting interests of the applicant and the adverse claimant, and after taking evidence shall dismiss the application if neither of them succeeds in showing that he has proper title for registration, or shall enter a decree awarding the land applied for, or any part thereof, to the person entitled thereto . . ."cralaw virtua1aw library
But even after the amendment, the underscored portions of the above-quoted provisions clearly contemplate that in order for the opponent to obtain from the court a decree of registration, he must apply for the same remedy.
It is likewise true that the same amending act reformed section 38 of Act No. 496 so that said section thereafter read thus:jgc:chanrobles.com.ph
"SEC. 38. If the court after hearing finds that the applicant or adverse claimant has title as stated in his application or adverse claim and proper for registration, a decree of confirmation and registration shall be entered."cralaw virtua1aw library
There can be no dispute that in the original registration cases under consideration, no positive decree of registration was prayed for by any opponent, as categorically required by section 34 of Act No. 496, as amended; and certainly none has been decreed by the above-mentioned final judgment of this Court, which was beyond its power to amend, much less that of the lower court, when the latter in granting the motion under consideration attempted to do so. It seems to me evident, therefore, that even if the opponents themselves had sought such an amendment, it could not have been legally made at such a late date for the simple reason that they had not applied for a decree of registration in their opposition as required in said provision, and furthermore, because the judgment of this Court had long before become final and irrevocable. If the opponents themselves could not legally have achieved such an end, how could their successor in interest, the movant-appellee?
What could be the purpose of Act No. 3621, section 1, amending Act No. 496, section 34, in providing that the opponent shall "apply for the remedy desired" ? It is to be presumed that this phrase was there used for a purpose — it would be an insult to the intelligence of the lawmaker to understand the contrary. What could be that purpose? To my mind, it could only be to establish a basis for the court’s jurisdiction to decree registration in favor of the opponent and a condition president for the exercise thereof. The law undoubtedly aimed at duly apprising the applicant and any other adverse claimants that such opponent was asserting a right to the registration and was praying for that remedy, so that such applicant and other adverse claimants could duly meet the pretensions of said opponent and protect their rights and interests accordingly. Under the provision, if the opponent applied for a positive registration in his favor as the remedy that he desires in case he should prove title in himself proper for registration, the court would have jurisdiction to grant him that remedy. To say now that even if he should not apply for the remedy the court could still grant it to him, would be tantamount to declaring the quoted phrase utterly useless and devoid of meaning.
In Government of the Philippine Islands v. Tombis Triño (50 Phil., 708, 718), this Court said:jgc:chanrobles.com.ph
"In a cadastral proceeding, a court has no jurisdiction to decree a lot to one who has put in no claim to it. The written declaration claiming certain described property is the very basis of jurisdiction to render a judgment . . ."cralaw virtua1aw library
While the present case is not concerned with a cadastral, proceeding, it involves the registration of land like such a proceeding and, as is well known, a claim in a cadastral proceeding, which is denominated "answer" is for the express purpose of securing the registration of the land covered thereby in the name of the claimant. That "answer" is the pleading which the claimant files in view of and against the petition or application of the Director of Lands which starts the case, in much the same way as an opposition or adverse claim in an ordinary registration se is in answer to the application of the applicant which commences the latter proceeding. Hence, in my opinion, the doctrine above quoted from the Triño case is perfectly applicable herein.
It is likewise true that after Act No. 3621, more specifically on November 17, 1931, Act No. 3901 was enacted, amending section 29 of Act No. 496 so as to read in part as follows:jgc:chanrobles.com.ph
"SEC. 29. After the filing of the application and before the issuance of the decree of title by the Chief of the General Land Registration Office the land therein described may be dealt with and instruments relating thereto shall be recorded in the office of the register of deeds at any time before the issuance of the decree of title, .n the same manner as if no application had been made. The interested party may, however, present such instruments to the Court of First Instance instead of presenting them to the office of the register of deeds, together with a motion that the same be considered in relation with the application, and the court, after notice to the parties, shall order such land registered subject to the incumbrance created by said instruments, or order the decree of registration issued in the same of the buyer or of the person to whom the property has been conveyed by said instruments. If such motion is made after the decision has become final, the court shall require the interested ,arty, before granting his motion, to pay the fees which the register of deeds would collect in accordance with section one hundred and fourteen of this Act, as amended, if such instruments had been resented for registration in the office of the register of deeds after registration of the original certificate of title. If the order of the court above mentioned is received by the Chief of the Land Registration Office after issuance of the decree of title, such order shall forthwith be forwarded by said officer to the register of deeds concerned, for compliance therewith. If the proceedings upon the application end in the issuance of a decree of title, the property included therein shall, as soon as said decree has been registered in the office of the register of deeds, as provided in section forty-one, become registered land under this Act, . . . (Emphasis supplied
Of course, under the provision just quoted it was proper for the lower court to decree the registration in favor of movant-appellee of the parcels of land whose registration was ordered in favor of Rita Garchitorena, as original applicant, in G. R. Nos. 3638,5 and 36547, but "the court shall require the interested party, before granting his motion, to pay the fees which the register of deeds would collect in accordance with section one hundred and fourteen of this Act, as amended, if such instruments had been presented for registration in the office of the register of deeds after registration of the original certificate of title."cralaw virtua1aw library
It is clear from the section last above quoted that its provisions are confined to the application which starts the registration proceedings. The phrase "after the filing of the application" in its first sentence can not refer but to that which the applicant files, and this is the self-same application which is alluded to in the remainder of the section. If so, the provisions of said section do not apply to the opposition filed by the opponent. The writer does not mean to be technical at all, but merely acts upon the principle that this Court has to exercise its jurisdiction and powers by authority of law. Where the law-making body has seen fit to confine the provision to the application, it is not for this Court to say that it would be more practical to extend it to the opposition. Where the law is clear, the duty of the court is merely to apply it. Construction would be out of place and, if attempted, would be no more nor less than judicial legislation. It would be just as obnoxious to our system of government for the courts to legislate in the matter of their own jurisdiction as it would be for the legislature to render judgment upon purely judicial questions.
I am forced to the conclusion that movant-appellee (a) must pay the fees above mentioned pursuant to section 29 of Act No. 496, as amended, as a condition precedent to the registration in his name of the parcels of land adjudicated to Rita Garchitorena, and (b) must file a separate proceeding for the registration of the parcels of land covered by the said oppositions or any of them, in the regular manner and following the regular procedure.