September 1965 - Philippine Supreme Court Decisions/Resolutions
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G.R. No. L-16631 September 20, 1965 - DEVELOPMENT BANK OF THE PHILS. v. MANUEL S. OZARRAGA:
EN BANC
[G.R. No. L-16631. September 20, 1965.]
DEVELOPMENT BANK OF THE PHILIPPINES, Plaintiff-Appellant, v. MANUEL S. OZARRAGA, as Administrator of the Intestate Estate of LEON CUÑAT, Defendant-Appellee.
SYLLABUS
1. PRESCRIPTION; ACTION TO FORECLOSE MORTGAGE; PRESCRIPTION NOT INTERRUPTED BY PETITION TO OPEN ADMINISTRATION PROCEEDINGS. — A petition to open an administration proceedings over the estate of a deceased debtor, even if brought by the creditor, does not discharge the function of an action to enforce the debt, and therefore does not interrupt prescription of action to foreclose a mortgage.
2. ID.; ID.; PRESCRIPTION UNDER FORMER LAW NOT INTERRUPTED BY WRITTEN EXTRAJUDICIAL DEMAND. — Under the law in force (Sec. 50, Act 190) prior to the New Civil Code, a written extrajudicial demand for payment did not interrupt prescription of action to foreclose a mortgage; although now it does have that effect according to Article 1155 of the New Civil Code.
3. ID.; ID.; LAW GOVERNING PRESCRIPTION STARTED UNDER FORMER LAW. — Under Article 1116 of the New Civil Code prescription already running before the new code became effective shall be governed by laws previously in force.
2. ID.; ID.; PRESCRIPTION UNDER FORMER LAW NOT INTERRUPTED BY WRITTEN EXTRAJUDICIAL DEMAND. — Under the law in force (Sec. 50, Act 190) prior to the New Civil Code, a written extrajudicial demand for payment did not interrupt prescription of action to foreclose a mortgage; although now it does have that effect according to Article 1155 of the New Civil Code.
3. ID.; ID.; LAW GOVERNING PRESCRIPTION STARTED UNDER FORMER LAW. — Under Article 1116 of the New Civil Code prescription already running before the new code became effective shall be governed by laws previously in force.
R E S O L U T I O N *
MAKALINTAL, J.:
Plaintiff-appellant moves for reconsideration of the decision of this Court of July 20, 1965, affirming the order of the Court a quo dismissing the complaint on the ground of prescription.
The first ground relied upon in the motion — that the prescriptive period is twenty (20) and not ten (10) years — is without merit, the law applicable being sections 40 and 43 of the Code of Civil Procedure (Act 190) and not the Civil Code, inasmuch as the said period started before the effectivity of this Code (Art 1116).
The second ground is likewise without merit. Appellants contend that the period of the debt moratorium (Executive Order No. 32) during which prescription was suspended expired not on July 26, 1948, when Republic Act No. 342 was enacted, but on May 18, 1953, when the decision in the case of Rutter v. Esteban (93 Phil. 68) was promulgated. In support of this contention appellant points out that the burden of proof rests on defendant-appellee to show that the deceased Cuñat was not a war damage claimant in order that the shorter moratorium period (up to July 26, 1948) may be applicable in this case, citing our decisions in Rio y Cia v. Datu Jolkipli, 105 Phil, 447 and Rio y Cia v. Court of Appeals, G.R. No. L-15666, June 30, 1962.
It was held in those cases that where the defendant sets up the defense of prescription the period of which started to run upon the lifting of the moratorium by virtue of Republic Act No. 342, it is for him to prove that he was not a war sufferer and had filed no war damage claim, and that in the absence of such proof the presumption is to the contrary, in which event the longer moratorium period should apply, the principle being that one who claims prescription as a defense must establish every element thereof.
It appears from the record of this case, however, that both parties have taken it for granted that the debt moratorium insofar as the obligation of the deceased Cuñat in favor of appellant bank was concerned lasted only up to July 26, 1948, when Republic Act No. 342 was enacted. This is clear from the motion to dismiss filed by defendant-appellee in the trial court and from the opposition thereto filed by plaintiff-appellant. Thus it is stated in said opposition: "Even after the war, the court in Agusan was not immediately restored, and assuming that it was functioning, Executive Order No. 32 was then enforced which suspended the statute of limitations from March 10, 1945 to July 26, 1948 . . ." The same argument was reiterated in the memorandum presented by plaintiff-appellant in support of said opposition. Neither has it questioned the applicability of the shorter moratorium period in its brief on appeal. Appellant’s narration of facts therein impliedly admits that the deceased Cuñat was not a war damage claimant, its argument against appellee’s claim of prescription being based on other factors. Appellant is now estopped to assert in its favor the absence of evidence on the point.
The motion for reconsideration is denied.
Bengzon, C.J., Bautista, Concepcion, Dizon, Bengzon, J.P. and Zaldivar, JJ., concur.
Reyes, J.B.L., J., took no part.
The first ground relied upon in the motion — that the prescriptive period is twenty (20) and not ten (10) years — is without merit, the law applicable being sections 40 and 43 of the Code of Civil Procedure (Act 190) and not the Civil Code, inasmuch as the said period started before the effectivity of this Code (Art 1116).
The second ground is likewise without merit. Appellants contend that the period of the debt moratorium (Executive Order No. 32) during which prescription was suspended expired not on July 26, 1948, when Republic Act No. 342 was enacted, but on May 18, 1953, when the decision in the case of Rutter v. Esteban (93 Phil. 68) was promulgated. In support of this contention appellant points out that the burden of proof rests on defendant-appellee to show that the deceased Cuñat was not a war damage claimant in order that the shorter moratorium period (up to July 26, 1948) may be applicable in this case, citing our decisions in Rio y Cia v. Datu Jolkipli, 105 Phil, 447 and Rio y Cia v. Court of Appeals, G.R. No. L-15666, June 30, 1962.
It was held in those cases that where the defendant sets up the defense of prescription the period of which started to run upon the lifting of the moratorium by virtue of Republic Act No. 342, it is for him to prove that he was not a war sufferer and had filed no war damage claim, and that in the absence of such proof the presumption is to the contrary, in which event the longer moratorium period should apply, the principle being that one who claims prescription as a defense must establish every element thereof.
It appears from the record of this case, however, that both parties have taken it for granted that the debt moratorium insofar as the obligation of the deceased Cuñat in favor of appellant bank was concerned lasted only up to July 26, 1948, when Republic Act No. 342 was enacted. This is clear from the motion to dismiss filed by defendant-appellee in the trial court and from the opposition thereto filed by plaintiff-appellant. Thus it is stated in said opposition: "Even after the war, the court in Agusan was not immediately restored, and assuming that it was functioning, Executive Order No. 32 was then enforced which suspended the statute of limitations from March 10, 1945 to July 26, 1948 . . ." The same argument was reiterated in the memorandum presented by plaintiff-appellant in support of said opposition. Neither has it questioned the applicability of the shorter moratorium period in its brief on appeal. Appellant’s narration of facts therein impliedly admits that the deceased Cuñat was not a war damage claimant, its argument against appellee’s claim of prescription being based on other factors. Appellant is now estopped to assert in its favor the absence of evidence on the point.
The motion for reconsideration is denied.
Bengzon, C.J., Bautista, Concepcion, Dizon, Bengzon, J.P. and Zaldivar, JJ., concur.
Reyes, J.B.L., J., took no part.
