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EN BANC

G.R. No. L-31871 March 15, 1930

THE NATIONAL EXCHANGE CO., INC., plaintiff and appellee, vs. JOSE H. KATIGBAK, ET AL., defendants and appellants.

Vicente Sotto for appellants.
Lucio Javillonar for appellee.

OSTRAND, J.:

It appears from the record that on February 7, 19027, in civil case No. 30642 of the Court of First Instance of Manila, the plaintiff obtained a judgment against Jose H. Katigbak, as principal, and Cabino Barretto, as surety, for the sum of P19,807.85, with intrust at 12 per cent per annum from January 1, 1922, and with the costs. On April 29, 19027, a writ of execution was issued in said case against the defendant Jose H. Katigbak, but the sheriff being unable to find any property pertaining to said defendant, the writ was returned unsatisfied on May, 13, 1927. Another writ of execution was issued on March 27, 1928, with the same result.chanroblesvirtualawlibrary chanrobles virtual law library

On January 20, 1928, Katigbak obtained a judgment in case No. 31998 against Po Sun and Po Ching for the complaint, and copy of the judgment was furnished his attorney, Vicente Sotto, on January 31, 1928. Nine days thereafter Sotto, on behalf of Katigbak had transferred all rights, interest, and participation in the judgment to one Po Sun Tun, his codefendant in the present case, in consideration of the sum of P20,000. Six days later, Sotto, in representation of Katigbak , filed a petition in the that case were about to transfer and alienate their property with the intention of defrauding the plaintiff and praying that an attachment be levied on their property and upon the filing by Katigbak on a bond in the sum of P3,000, the petition was granted on February 17, 1928.chanroblesvirtualawlibrary chanrobles virtual law library

The present action was brought on April 19, 1928, the plaintiff setting forth the fact s above related and further stating, in substance, that the alleged transfer by Katigbak to Po Sun Tun was fictitious and made with the deliberate purpose of defrauding Katigbak's creditions. The plaintiff therefore prayed that said transfer be declared null and void that a preliminary attachment be levied on all rights, interest, participation in the judgment obtained by Katigbak against Po Sun Suy and Po Ching. Upon filing by the plaintiff of a bond of P3,000, the desired writ of attachment was issued.chanroblesvirtualawlibrary chanrobles virtual law library

Upon trial the court blow hold that the transfer to Po Sun Tun was fraudulent under article 1297 of the Civil Code and rendered judgment setting aside said transfer. From such judgment the defendants appealed.chanroblesvirtualawlibrary chanrobles virtual law library

The contention of the appellants is that it had not been proven (1) that Katigbak had no other property than that transferred to Po Sun Tun and (2) that fraud had been committed by the defendants-appellants. The first point is sufficiently refuted by calling attention to the fact that in endeavoring to accomplish the writs of execution in case No. 30642 the sheriff was unable to find any property upon which execution could be levied, and it has not been intimated that he was negligent in the performance of his duty.chanroblesvirtualawlibrary chanrobles virtual law library

The second point raised by the appellants is equally without merit. The second paragraph of article 1297 of the Civil Code provides that "alienations f valuable consideration, made by a person against whom any judgment whom any writ of attachment has been issued, shall also be made no attempt to rebut the presumption established by the provision quoted, and it follows that it sufficiently proves the fraudulent character of the transaction in question. A rebuttable presumption can only be overcome by evidence to the contrary, and the burden was on the defendants to present such evidence. These case of Sobrevilla vs. Montinola (22 Phil., 124), is not point.chanroblesvirtualawlibrary chanrobles virtual law library

The appealed judgment is affirmed with the costs against the appellants. So ordered.

Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.