FIRST DIVISION

[G.R. No. L-44347. September 29, 1988.]

VICENTA TAN , petitioner, vs. CITY OF DAVAO , respondent.

Occeña Law Office for petitioner.

The City Legal Officer for respondent.

SYLLABUS

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; ESCHEATS; CASE FILED

BEFORE EFFECTIVITY OF THE REVISED RULES OF COURT GOVERNED BY THE 1940
RULES OF COURT. — The instant escheat case did not come under Rule 91 because the
petition was led on September 12, 1962, when the applicable rule was still Rule 92 of
the 1940 Rules of Court. Rule 91 of the Revised rules of Court, which provides that only
the Republic of the Philippines, through the Solicitor General, may commence escheat
proceedings, did not take effect until January 1, 1964. Although the escheat
proceedings were still pending then, the Revised Rules of Court could not be applied to
the petition because to do so would work injustice to the City of Davao. Rule 144 of the
1964 Rules of Court contains this "saving" clause: "These rules shall take effect on
January 1, 1964. They shall govern all cases brought after they take effect, and also all
further proceedings in cases pending, except to the extent that in the opinion of the
court, their application would not be feasible or would work injustice, in which event the
former procedure shall apply."
2. ID.; CIVIL PROCEDURE; APPEAL; DISMISSAL THEREOF PROPER WHERE
PETITIONER WAS NEVER A PARTY IN THE ESCHEAT PROCEEDINGS. — The Court of
Appeals should have dismissed the appeal of Vicenta Tan and Ramon Pizarro earlier
because the records show that Vicenta was never a party in the escheat proceedings.
The trial court's order dated February 4, 1972 ordering that she be substituted for
Ramon Pizarro as oppositor (p. 16, Record on Appeal) was set aside by the same court
in its Order of March 23, 1972 (p. 178, Record on Appeal) which was not appealed.
Vicenta Tan, if she still exists, was never served with summons extraterritorially under
Section 17, Rule 14 of the Rules of Court. She never appeared in the trial court by
herself, or counsel and never led a pleading therein, hence, she never submitted to the
court's jurisdiction.
3. ID.; ID.; PARTIES TO CIVIL ACTIONS; EVERY ACTION MUST BE
PROSECUTED AND DEFENDED IN THE NAME OF THE REAL PARTY-IN-INTEREST. —
Every action must be prosecuted and defended in the name of the real party-in-interest
(Sec. 2, Rule 3, Rules of Court; Ferrer vs. Villamor, 60 SCRA 106; Filipinas Industrial
Corp. vs. San Diego, 23 SCRA 706; 1 Moran 144). Ramon Pizarro, the alleged
administrator of Dominga Garcia's property, was not a real party in interest. He had no
personality to oppose the escheat petition.
4. CIVIL LAW; CIVIL CODE; PERSONS AND FAMILY RELATIONS;
PRESUMPTIONS OF DEATH; COURTS ARE NOT BARRED FROM DECLARING AN
ABSENTEE PRESUMPTIVELY DEAD AS AN INCIDENT OF OR IN CONNECTION WITH, AN
ACTION OR PROCEEDING FOR THE SETTLEMENT OF THE INTESTATE ESTATE OF
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 SUCH ABSENTEE. — The Court of Appeals did not err in a rming the trial court's ruling
that Dominga Garcia and her heirs may be presumed dead in the escheat proceedings
as they are, in effect, proceedings to settle her estate. Indeed, while a petition instituted
for the sole purpose of securing a judicial declaration that a person is presumptively
dead cannot be entertained if that were the only question or matter involved in the case,
the courts are not barred from declaring an absentee presumptively dead as an incident
of, or in connection with, an action or proceeding for the settlement of the intestate
estate of such absentee. Thus ruled this Court in In re Szatraw 81 Phil. 461: ". . . This
presumption . . . may arise and be invoked and made in a case, either in an action or in a
special proceeding, which is tried or heard by, and submitted for decision to, a
competent court. Independently of such an action or special proceeding, the
presumption of death cannot be invoked, nor can it be made the subject of an action or
special proceeding." (Emphasis supplied.)
5. ID.; ID.; ID.; ID.; DIRECT EVIDENCE PROVING THAT ONE IS DEAD, NOT
NECESSARY AS SUCH DEATH MAY BE PRESUMED UNDER ARTICLE 390 OF THE NEW
CIVIL CODE. — Direct evidence proving that Dominga Garcia, her husband and her
children are in fact dead, is not necessary. It may be presumed under Article 390 of the
New Civil Code which provides that "(a) After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession. The absentee shall not be presumed dead
for the purpose of opening his succession till after an absence of ten years . . ."
6. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL FACTUAL FINDINGS OF THE
COURT OF APPEALS MAY NOT BE DISTURBED IN A PETITION FOR REVIEW BEFORE
THE SUPREME COURT WHERE ONLY LEGAL QUESTIONS MAY BE RAISED. — These
factual ndings of the Court of Appeals are binding on Us. They may not be disturbed in
this petition for review where only legal questions may be raised (Sec. 2, Rule 45).

DECISION

GRIÑO-AQUINO , J : p

This 26-year old case involves what is probably now a valuable lot in the City of
Davao whose owner left for China with her entire family in 1923 and never returned. Like
all such estates facing escheat proceedings, it is fair game for poseurs and fakers
claiming to be the missing heir of the deceased owner. cdrep

The spouses Cornelia Pizarro and Baltazar Garcia, during their lifetime, were
residents of Davao City. As they were childless, they adopted a three-year old girl whom
they named Dominga Garcia and brought up as their own. At the age of nineteen years,
Dominga Garcia married a Chinaman, Tan Seng alias Seng Yap, with whom she had
three children, named Vicenta, who was born in 1916, Mariano who was born in 1918,
and Luis who was born in 1921. In 1923, Dominga Garcia and her three children
emigrated to Canton, China. In less than a year, Tan Seng followed his family to his
country of origin. cdll

According to the petitioner, Dominga Garcia died intestate in 1955 (Extrajudicial

Settlement of the Estate of Dominga Garcia dated May 27, 1966, p. 8, Rollo). She left in
the Philippines a 1,966-square-meter lot on Claveria Street, Townsite of Davao, District
of Davao, registered in her name under T.C.T. No. 296 (T-2774) of the Registry of Deeds
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 of Davao City. Since her departure for China with her family, neither she, nor her
husband, nor any of their children has returned to the Philippines to claim the lot.
Dominga's adoptive parent, Cornelia Pizarro, died in May 1936. In 1948, her
nephew, Ramon Pizarro, occupied a part of Dominga's property and collected the
rentals from the owners of other houses occupying the land. Another nephew of
Cornelia, Segundo Reyes, in a burst of civic spirit, informed the Solicitor General about
the property. The City Fiscal and NBI agents, Antonio Gonzaga and Felix Valencia,
investigated Segundo Reyes, Ramon Pizarro and Aurelio Pizarro regarding the
whereabouts of Dominga Garcia, Tan Seng, and their children. prLL

During the investigation, Ramon Pizarro alleged that Vicenta Tan, daughter of
Dominga, was married and living in Bacolod City, but he did not know her exact address.
Aurelio Pizarro, on the other hand, controverted that statement because as far as he
knew, Vicenta Tan left for China with her mother and brothers in 1923.
On September 12, 1962, the City of Davao led a petition in the Court of First
Instance of Davao, Branch I (Special Civil Case No. 1220) to declare Dominga Garcia's
land escheated in its favor. It alleged that Dominga Garcia and her children are
presumed to be dead and since Dominga Garcia left no heir or person by law entitled to
inherit her estate, the same should be escheated pursuant to Rule 92 of the Rules of
Court (pp. 1-5, Record on Appeal). LLpr

The court set the petition for hearing and directed the City to cause (as it did) the
publication of its petition in the "Mindanao Times," a newspaper of general circulation in
the city and province of Davao, and in the O cial Gazette, once a week for six (6)
consecutive weeks (pp. 6-8, Record on Appeal).
Ramon Pizarro opposed the escheat petition on the ground that courts are not
authorized to declare that a person is presumed to be dead and that Dominga Garcia's
being in Red China is not a su cient ground to deprive her of her property by escheat
proceedings (pp. 8-9, Record on Appeal).
On June 15, 1966, Pizarro led a motion to dismiss the escheat petition (pp. 13-
15, Record on Appeal), but he withdrew his motion three days later (p. 15, Record on
Appeal).
Numerous incidents delayed the trial of the case, among them: (1) the court's
order denying the oppositor's motion to dismiss the escheat petition, which reached
the Court of Appeals and the Supreme Court (L-38423); (2) the court's order requiring
Pizarro to render an accounting which also reached the Court of Appeals and Supreme
Court (L-38642); and (3) the court's order for receivership which reached the Court of
Appeals and the Supreme Court (L-39224). LLpr

At the trial, the petitioner's evidence on the identity of the land; the fact that the
registered owner, Dominga Garcia, and her children and husband had left for China in
1923; that she died intestate in 1955; and that none of her heirs is found in the
Philippines, were not seriously disputed.
The controversy centers on whether Dominga's daughter, Vicenta Tan, is alive in
China or in Hongkong, as alleged by Pizarro who tried to prove it through: (1) supposed
pictures of the missing heir (Exhs. 1, 2, and 3); (2) an Extrajudicial Settlement and
Adjudication of Dominga's Estate (Exh. 19, pp. 8-9, Rollo) allegedly executed by Vicenta
in Hongkong on May 27, 1966; and (3) a Special Power of Attorney (Exh. 20) that she
supposedly signed (thumbmarked) in favor of Pizarro on the same date also in
Hongkong (pp. 53-56, Rollo).
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 Pizarro testi ed that his aunt Cornelia Pizarro gave him the papers pertaining to
the land and told him to take care of it before she died in 1936.
On cross-examination, he alleged that in 1960 he met Vicenta on Claveria Street,
that she told him to take care of her property because she would come again later; that
they met again in Hongkong in 1966; and he recognized her from her pictures (Exhs, 1,
2, and 3).
On still another occasion, Pizarro testi ed that the title of the land was given to
him by Dominga Garcia when she and her husband returned to Davao before the war
and borrowed money from him for their trip to China.
Pizarro's witness, a septuagenarian, Arsenio Suazo, who claimed to be a distant
relative of Cornelia Pizarro and Dominga Garcia, testi ed that the last time he saw
Vicenta was when she was 5 years old. He identi ed her as the woman with buck teeth
in the pictures (Exhs. 1, 2 and 3) because he remembered that, even as a 5-year-old, "her
teeth were not in good form and were somewhat protruding."
Another witness, Ramon Regino, a nephew of Pizarro, calculated that Vicenta was
7 years old when he last saw her. He testi ed that the pictures (Exhs. 1, 2, and 3) bore a
similarity to Vicenta whose face, he recalled, was "somewhat long."
The trial court found Suazo's testimony "not credible" or "improbable" for it was
impossible for him to identify the woman in the picture as Vicenta on the basis only of
his recollection that she had protruding teeth as a child, because, the court argued, "it is
a matter of common knowledge . . . that the teeth of children of ve years of age are
temporary, and are replaced by permanent teeth at the age of seven or eight years." (p.
185, Record on Appeal.)
The court also found Regino's testimony "incredible, patently incredible" (p. 185,
Record on Appeal).
Neither did the trial court believe Pizarro's allegation that the pictures, Exhibits 1,
2, and 3, were those of Vicenta Tan. The court observed that the woman in the picture,
who supposedly made the Extrajudicial Settlement and Special Power of Attorney
(Exhs. 19 and 20) did not know how to sign her name, thus contradicting Pizarro's
statement that Vicenta, at age 7, already knew how to write and that when they met in
Hongkong, they conversed in Chavacano and in English. On the other hand, the court
pointed out, since Vicenta left for China in 1923 when she was only 7 years old, and as
she grew up in China, it could not be true that she spoke Chavacano and could write in
the Roman alphabet (p. 194, Record on Appeal).
The Court did not believe that Pizarro and Vicenta met in Davao in 1960, for if
that were true, he did not need to be shown the scar on Vicenta's thigh in order for him
to recognize her. Furthermore, it is improbable that a woman whom he had not seen for
43 years would bare her thigh to him.
The trial court pointed out in its decision that:
". . . There is no proof that Vicenta Tan, daughter of Dominga Garcia, was
the one who in fact sent the picture other than the claim of Pizarro that he
received the same from her. Likewise, there is no proof that the woman in Exhibit
1 is Vicenta Tan, daughter of Dominga Garcia, except the testimony of Pizarro
that he received the picture from her. An impostor might have sent her picture to
Pizarro foist herself upon him as the daughter of Dominga Garcia. And this is the
woman whom Pizarro met in Hongkong." (p. 196, Record on Appeal.)

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 The trial court found that Pizarro's testimonies "ring with untruthfulness; they are
replete with inconsistencies" (p. 17, Record on Appeal) and the witnesses who
corroborated him were "unworthy of belief" (p. 198, Record on Appeal).
On March 23, 1972, the trial court rendered judgment whose dispositive portion
is quoted below:
"WHEREFORE, the land in the name of Dominga Garcia covered by
Transfer Certi cate of Title No. 296 (T-2774) of the Register of Deeds of Davao
City, as well as the rentals thereon, shall escheat and the same are hereby
assigned to the City of Davao for the bene t of public schools and public
charitable institutions and centers in the said city.
"Ramon Pizarro shall make an accounting of the income he collected from
himself and those who are occupying the land from the time he took possession
of it in 1936 when his aunt Cornelia Pizarro died until the City of Davao takes
possession of the property and shall deliver the same to the city.
"Ramon Pizarro shall likewise deliver to the City of Davao the owner's
duplicate of Transfer Certi cate of Title No. 296 (T-2774) which is in his
possession, without costs." (p. 198, Record on Appeal.)
Pizarro appealed to the Court of Appeals (CA-G.R. No. L-51786-R). He passed
away on June 16, 1975 during the pendency of the appeal.
On August 19, 1975, a certain Luis Tan, alias Chen Yek An, claiming to be the long
missing son of Dominga Garcia, led a motion for intervention in the Court of Appeals.
He alleged that he had been living in mainland China; that he failed to come to the trial
because of a government prohibition barring his entry to the Philippines; that after
diplomatic relations with China were restored, he returned to this country to oppose the
escheat proceedings on the properties of his mother, Dominga Garcia. cdphil

The City of Davao opposed the motion for intervention for tardiness. The Court of
Appeals disallowed it because the trial had long been terminated, and the intervention,
if allowed, would unduly delay the adjudication of the rights of the original parties (p. 26,
Rollo).
On April 12, 1976, the Court of Appeals a rmed the appealed decision of the
trial court. Vicenta Tan and or her attorney-in-fact, Ramon Pizarro, appealed by petition
for certiorari to this Court, alleging that the Court of Appeals erred:
1. in ruling that the city of Davao had personality to le the escheat
petition; and
2. in declaring that petitioner Vicenta Tan may be presumed dead.

We find no merit in the petition for review.

With respect to the argument that only the Republic of the Philippines,
represented by the Solicitor-General, may le the escheat petition under Section 1, Rule
91 of the Revised (1964) Rules of Court, the Appellate Court correctly ruled that the
case did not come under Rule 91 because the petition was led on September 12,
1962, when the applicable rule was still Rule 92 of the 1940 Rules of Court which
provided:
"Sec. 1. When and by whom petition led . — When a person dies
intestate, seized of real or personal property in the Philippines, leaving no heirs or
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 person by law entitled to the same, the municipality or city where the deceased
last resided, if he resided in the Philippines, or the municipality or city in which he
had estate if he resided out of the Philippines, may le a petition in the court of
rst instance of the province setting forth the facts, and praying that the estate of
the deceased be declared escheated." (Emphasis supplied.)

Rule 91 of the Revised Rules of Court, which provides that only the Republic of
the Philippines, through the Solicitor General, may commence escheat proceedings, did
not take effect until January 1, 1964. Although the escheat proceedings were still
pending then, the Revised Rules of Court could not be applied to the petition because to
do so would work injustice to the City of Davao. Rule 144 of the 1964 Rules of Court
contains this "saving" clause:
"These rules shall take effect on January 1, 1964. They shall govern all
cases brought after they take effect, and also all further proceedings in cases
pending, except to the extent that in the opinion of the court, their application
would not be feasible or would work injustice, in which event the former procedure
shall apply."

The Court of Appeals should have dismissed the appeal of Vicenta Tan and
Ramon Pizarro earlier because the records show that Vicenta was never a party in the
escheat proceedings. The trial court's order dated February 4, 1972 ordering that she
be substituted for Ramon Pizarro as oppositor (p. 16, Record on Appeal) was set aside
by the same court in its Order of March 23, 1972 (p. 178, Record on Appeal) which was
not appealed.
Vicenta Tan, if she still exists, was never served with summons extraterritorially
under Section 17, Rule 14 of the Rules of Court. She never appeared in the trial court by
herself, or counsel and never led a pleading therein, hence, she never submitted to the
court's jurisdiction.
Every action must be prosecuted and defended in the name of the real party-in-
interest (Sec. 2, Rule 3, Rules of Court; Ferrer vs. Villamor, 60 SCRA 106; Filipinas
Industrial Corp. vs. San Diego, 23 SCRA 706; 1 Moran 144). Ramon Pizarro, the alleged
administrator of Dominga Garcia's property, was not a real party in interest. He had no
personality to oppose the escheat petition.
The Court of Appeals did not err in a rming the trial court's ruling that Dominga
Garcia and her heirs may be presumed dead in the escheat proceedings as they are, in
effect, proceedings to settle her estate. Indeed, while a petition instituted for the sole
purpose of securing a judicial declaration that a person is presumptively dead cannot
be entertained if that were the only question or matter involved in the case, the courts
are not barred from declaring an absentee presumptively dead as an incident of, or in
connection with, an action or proceeding for the settlement of the intestate estate of
such absentee. Thus ruled this Court in In re Szatraw 81 Phil. 461:
". . . This presumption . . . may arise and be invoked and made in a case,
either in an action or in a special proceeding, which is tried or heard by, and
submitted for decision to, a competent court. Independently of such an action or
special proceeding, the presumption of death cannot be invoked, nor can it be
made the subject of an action or special proceeding." (Emphasis supplied.)

Direct evidence proving that Dominga Garcia, her husband and her children are in
fact dead, is not necessary. It may be presumed under Article 390 of the New Civil Code
which provides:
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 "ART. 390. After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all purposes, except
for those of succession.
"The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years . . ."

The Court of Appeals found that the City of Davao was able to prove the facts
from which the presumption arises. It said:
". . . Its evidence preponderantly shows that in 1923 Dominga Garcia and
her family left the Philippines bound for China. Since then until the instant
petition was led on September 12, 1962, a period covering about 39 years,
nothing had been heard about them. It is not known whether all or any of them is
still alive at present. No heir, devisee or any other person entitled to the estate of
Dominga Garcia has appeared and claimed the same up to this time except Luis
Tan whose status as alleged heir has still to be proven in the proper court.

"The assertion of appellant Pizarro that in 1960 he met and talked with
Vicenta Tan in Claveria, Davao City, before she went to China, and again in 1966,
when he went to Hongkong, was not believed by the court below. After assessing
and evaluating the evidence, we nd no su cient cause to disturb the conclusion
of the trial court made on a nding of fact based on con icting testimony and
depending largely upon the credibility of witnesses who testi ed before it. In our
review of the evidence, we have not come across any material fact or
circumstance which the court a quo has overlooked and failed to consider, or has
misunderstood and misapplied, and which if properly appreciated and accurately
weighed would change the result of this litigation.
For one thing, if it is true that Vicenta Tan left the Philippines only in 1960,
as oppositor Pizarro would like the court to believe, it has not been explained why
he omitted to secure copies of her departure papers from either the Department of
Foreign Affairs, the Bureau of Immigration or the former Chinese Embassy, and
present them to the court to establish her existence as late as 1960.
For another, if it is also true that he met her in Hongkong in 1966, we are at
a loss why he failed to arrange for her return to the Philippines. We do not believe
it would have been di cult to do so, considering that she had been a resident of
this country for more than 40 years and had been absent for only about six years
and that her return was imperative on account of a court action against her
property which required her personal presence. But even if this were impossible,
oppositor Pizarro would not be left without any other remedy. He could have
arranged for the taking of her deposition in Hongkong by means of letters
rogatory under Sections 11 and 12, Rule 24 of the Revised Rules of Court, in the
same manner that, according to him, he arranged their meeting in the Crown
Colony sometime in 1966.
The unexplained failure of oppositor Pizarro to take advantage of any of
these remedies available to him heavily tilts the scale against the credibility of his
claim." (pp. 30-31, Rollo.)

These factual ndings of the Court of Appeals are binding on Us. They may not
be disturbed in this petition for review where only legal questions may be raised (Sec. 2,
Rule 45).
WHEREFORE, nding no reversible error in the decision of the Court of Appeals in
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 CA-G.R. No. 51786-R, the petition for review is denied for lack of merit.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

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