G.R. No. L-45297 July 16, 1937
JOSE DE BORJA,
Petitioner, vs. FERNANDO JUGO, Judge of First Instance of Rizal;
Benedicto M. Javier for petitioner.
DIAZ, J.: chanrobles virtual law library
The petitioner, basing his opinion upon what he deems an abuse of discretion on the part of the respondent judge, which abuse, according to him, consists in having denied his motion filed in civil case No. 4565 for partition of property, entitled "Quintin de Borja, as administrator of the intestate estate of Marcelo de Borja, plaintiff, vs. Francisco de Borja et al., defendants." seeking permission to intervene in said case, instituted mandamus proceeding to compel said judge to grant him the permission applied for and to admit his complaint in intervention.chanroblesvirtualawlibrary chanrobles virtual law library
The facts pertinent to the question to be decided are as follows: The petitioner is the son of the respondent Francisco de Borja. On May 11, 1928, Francisco de Borja, Bernardo de Borja and Marcelo de Borja, by instituting land registration case No. 528 of the Province of Rizal, were declared, owners of the real property known as Hacienda de Jalajala. Two years later, or in 1930, Quintin de Borja, as administrator of the Intestate estate of Marcelo de Borja, instituted civil case No. 4565, for the partition of the property of which said deceased, Francisco de Borja and Bernardo de Borja were undivided owners. On October 29, 1931, the court which tried the case decided it, adjudicating one-third of the property under partition to the respondent Francisco de Borja. However, in view of the fact that the order of partition failed to specify the areas and boundaries of the portions allotted to each of the three co-owners, the court ordered the survey thereof by some surveyors commissioned for that purpose. To this date, or at least until August 19, 1936, when the petitioner instituted civil case No. 6598 in the Court of First Instance of Rizal, entitled "Jose de Borja, plaintiff, vs. Hermogena Romero, Francisco de Borja, Josefa Tangco, and Crisanto de Borja, defendants," for the recovery of the portions of the Hacienda de Jalajala, which, according to him, had been sold to him by the respondent Francisco de Borja, the survey, which should have been made by the commissioners, as ordered by the court, has not been carried out due to last minute differences arising among the parties. The petitioner had been appearing as attorney for Francisco de Borja in collaboration with Attorneys Sumulong and Lavides, in all incidents of the two cases above-stated (registration case No. 528, commenced long before the month of May 1928; and civil case No. 4565, brought, in turn, in 1930). On no occasion during the trial of said two cases, or during the period from May, 1928, to August, 1936, did the petitioner show signs of having rights and interest contrary to those of his father, the respondent Francisco de Borja. On the contrary, he made it understood and maintained that he (Francisco de Borja) was the owner of one-third of the Hacienda de Jalajala. Civil case No. 6598, brought by the petitioner for the recovery, as already stated, of the portions of the Hacienda de Jalajala which he claims to have been sold to him by the respondent Francisco de Borja, is still pending decision to date. It appears from the complaint, which gave rise to the case, that the alleged right of the petitioner is based only upon the document attached thereto, being no other than Annex A-1 of Exhibit A, which is a deed of sale purporting to have been signed by Francisco de Borja and the petitioner, two of the paragraphs of which read as follows:
The sworn answer of the respondent Francisco de Borja to the petitioner's complaint, filed in said civil case No. 6598, contains the special defense that the alleged deed of sale (Annex A-1 of Exhibit A) upon which the petitioner bases his right of action, is spurious. Said answer states, among other things, the following:
It will be noted that the facts heretofore stated do not show that the respondent judge has committed an abuse of discretion. In this jurisdiction the right to intervene in an action is not absolute. It depends upon the sound discretion of the court and when there is no evidence that the person who desires to intervene as such has an interest in the subject matter of the litigation, his right thereto should not be recognized (Joaquin vs. Herrera, 37 Phil., 705). The fact that the petitioner has brought an action for the recovery of possession against the respondent Francisco de Borja and others and that he has in his possession a document of the nature of Annex A-1 of Exhibit A, which was categorically denied by the respondent, characterizing it as spurious, is insufficient to show that his interest to intervene in civil case No. 4565 is legal, clear and positive.chanroblesvirtualawlibrary chanrobles virtual law library
On the other hand, intervening may be permitted only in cases where the intervening party desires to join the plaintiff in claiming what is sought by the claimant, or to unite with the defendant in resisting the claims of the plaintiff, or to demand anything adverse to both the plaintiff and defendant, and in the case under consideration the petitioner joined neither of said parties. Furthermore, such step may be taken only during the trial or hearing of the case and never after judgment had been rendered (Felismino vs. Gloria, 47 Phil., 967). When the petitioner filed his motion to intervene (August 19, 1936), more than five years had already elapsed from the time judgment had been rendered in the case for partition, and the only thing then lacking was some incidental proceedings precisely to give effect to said judgment. For all these considerations, the conclusion that must be arrived at is that the petition filed is without merit. This is so because in order that a person may be compelled, by mandamus, to perform a particular act, it is imperative that the right had for that purpose be clear, not doubtful. The duty the performance of which is demanded, must be clear as the right itself to demand such performance (Tabigne vs. Duvall, 16 Phil., 324; Gonzales vs. Board of Pharmacy, 20 Phil., 367; Lamb vs. Phipps, 22 Phil., 456; Walter E. Olsen & Co. vs. Herstein and Rafferty, 32 Phil., 520; Sanson vs. Barrios, 63 Phil., 198). In view of the present status of said action for the recovery of possession (civil case No. 6598), it is still to be determined whether or not the alleged contract of sale between father and son existed, which proves that the alleged right of the petitioner is not clear but doubtful.chanroblesvirtualawlibrary chanrobles virtual law library
Wherefore, the remedy applied for is denied with costs to the petitioner. So ordered.
Avance�a, C.J., Villa-Real, Abad Santos, Imperial, Laurel and Concepcion, JJ., concur.
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