Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-24384 September 28, 1967

M RG R!T !"!GO, plaintiff-appellant, vs. EST TE O# $R! N M LOTO, GREGOR!O L. L!R , Spe%&'( )m&*&+tr'tor, 1 defendant and appellee. Zabarrano, Palma & Associates for plaintiff-appellant. R. M. Escareal for defendant-appellee.

S NC,E-, J.: Appeal from an order dated anuar! 1", 1#$%, sustainin& defendants' motion to dismiss. (he court belo) ruled that the claim on )hich plaintiff's suit is founded is unenforceable under the provisions of the *tatute of +rauds., Essential to a resolution of the -uestion posed are the follo)in& averments of the complaint. /n March ,#, 1#$0, in pursuant of a previous verbal understandin& plaintiff paid Adriana Maloto P11,111.11 as purchase price for the disputed house and lot of 2%0 s-uare meters, located in 3loilo Cit!. (he deed of sale )as to be e4ecuted later on. Plaintiff did not press Adriana Maloto for a receipt for the mone! paid considerin& the 5almost filial relationship5 bet)een the t)o 6plaintiff is a niece of Adriana's deceased husband7, and because plaintiff )as told b! Adriana that the matter of the preparation of the said receipt and the deed of sale )as to be referred to the latter's la)!er, Att!. *ulpicio Palma. Mean)hile, plaintiff 5be&an to e4ercise o)nership and dominion over the said propert! b! improvin& the same and constructin& a retail store in front thereof.5 /n t)o occasions, in *eptember and in /ctober, 1#$0, on Adriana's instructions, plaintiff )ent to see Att!. Palma for the preparation of a deed of sale. *he )as )ithout success because Palma then )as on the campai&n trail as a candidate for councilor of 3loilo Cit!. /n /ctober ,1, 1#$0, Adriana died. (hereafter, the (orrens title to the propert! )as transferred in the name of the present defendants, nephe)s and niece of Adriana Maloto, after settlement of the latter's estate. +ormal demand for the e4ecution of a deed of sale b! said defendants )as re8ected b! them. 9ence, this suit to compel defendants to e4ecute that deed. 1. (he averments of the complaint reveal that no )ritten document )as e4ecuted to record the deed of sale or, for that matter, the pa!ment of the purchase price of the house and land.

(hese are the considerations )hich impelled the 3loilo court to declare that plaintiff's suit is unenforceable under the *tatute of +rauds. B! Article 1210 6,7 6e7 of the Civil Code, a verbal contract for the sale of real propert! is unenforceable, unless ratified. +or, such contract offends the *tatute of +rauds. But lon& accepted and )ell settled is the rule that the *tatute of +rauds is applicable onl! to e4ecutor! contracts : not to contracts either totall! or partiall! performed.0 (he complaint here states that the deceased Adriana Maloto sold the disputed house and land to plaintiff; that consideration thereof )as paid; that b! reason of such sale, plaintiff performed acts of o)nership thereon. (he facts thus alle&ed are constitutive of a consummated contract. 3t matters not that neither the receipt for the consideration nor the sale itself )as in )ritin&. Because 5oral evidence of the alle&ed consummated sale of the land5 is not forbidden b! the *tatute of +rauds and ma! not be e4cluded in court.2 ,. (he record on appeal sho)s that defendants herein filed a suit for e8ectment a&ainst plaintiff coverin& the same propert!, the sub8ect of the suit herein.% Claim )as there advanced that plaintiff : in the present case : )as a mere lessee thereof.1awphl.nt *he traversed the alle&ations of said complaint b! reiteratin& her claim in the complaint before us that on March ,#, 1#$0 she bou&ht the house and lot from defendants' predecessor, Adriana Maloto; that the Cit! Court of 3loilo had no 8urisdiction over the sub8ect-matter thereof )hich involves a case of o)nership; and that the issue of possession cannot be decided b! the cit! court )ithout first resolvin& the -uestion of o)nership )hich properl! belon&s to the Court of +irst 3nstance of 3loilo. 3n defendants' supplementar! memorandum filed )ith this Court on March 0, 1#$$, defendants aver that the decision of anuar! 2, 1#$$ in the e8ectment case )as in favor of defendants in the case no) before us; that said decision directed Mar&arita 3<i&o 6plaintiff herein7 to vacate the premises, to pa! rentals, attorne!'s fees and costs; that the aforesaid 8ud&ment became final; and that on +ebruar! 1%, 1#$$, the Cit! ud&e issued a )rit of e4ecution to enforce the same. =efendants no) submit that dismissal of the case for o)nership is proper because of the facts 8ust recited.1awphl.nt >e do not thin? that the decision in the e8ectment case is an obstacle to the present suit. (he simple reason is that an action of e8ectment is no bar to another contestin& o)nership. And then, it )ould appear from said decision, Anne4 5A5 of the supplementar! memorandum, that the Cit! Court of 3loilo declared that it is 5of the opinion that the defendant Mar&arita 3<i&o is onl! a lessee of the properties described in this complaint.5 53mplicit in this is that the -uestion of o)nership )as in realit! seriousl! presented before the cit! court. *o that, possession, the problem before the cit! court, could not have been properl! resolved there )ithout first settlin& that of o)nership. *ince the issue of o)nership became apparent in the course of the trial of the e8ectment case aforesaid, the cit! court lost 8urisdiction to proceed further )ith the trial thereof and the 8ud&ment thereon.$ (he decision in the e8ectment case accordin&l! is not decisive of the -uestion of o)nership raised in the complaint before the Court of +irst 3nstance of 3loilo in the case no) on appeal before this Court.

+or the reasons &iven, the order of the Court of +irst 3nstance of 3loilo of anuar! 1", 1#$% dismissin& plaintiff's complaint is hereb! set aside, and the case remanded to the court of ori&in for further proceedin&s. Costs a&ainst defendants. *o ordered. oncepcion, .!., Re"es, !.#.$., %i&on, Ma'alintal, Zaldi(ar, astro, An)eles and *ernando, !!., conc+r. #en)&on, !.P., !., too' no part.