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Perez vs. Perez
*

G.R. No. 143768. March 28, 2005.

ZOSIMO PEREZ, PEDRITO PEREZ, SOCORRO PEREZ

and PASTORA PEREZ-VIGO, who is joined by her
husband EPIFANIO VIGO, petitioners, vs. DEMOCRITO
PEREZ, substituted by ERLINDA M. PEREZ and MARIA
CECILIA M. PEREZ, DEVELOPMENT BANK OF THE
PHILIPPINES BATAAN BRANCH, THE PROVINCIAL
SHERIFF OF BATAAN and THE REGISTER OF DEEDS
OF BATAAN, respondents.

Remedial Law; Appeals; Factual findings of the appellate

court are generally binding on the Court especially when in
complete accord with the findings of the trial court, exceptions.—
Through the ages, we have persistently stressed that this Court is
not a trier of facts. The factual findings of the appellate court are
generally binding on us especially when in complete accord with
the findings of the trial court. This rule, however, is not absolute,
as it admits of certain exceptions, to wit: (a) where there is grave
abuse of discretion; (b) when the finding is grounded entirely on
speculations, surmises or conjectures; (c) when the inference
made is manifestly mistaken, absurd or impossible; (d) when the
judgment of the Court of Appeals was based on a
misapprehension of facts; (e) when the factual findings are
conflicting; (f) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same are contrary to
the admissions of both appellant and appellee; (g) when the Court
of Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered, would
justify a different conclusion; and, (h) where the findings of fact of
the Court of Appeals are contrary to those of the trial court, or are
mere conclusions without citation of specific evidence, or where
the facts set forth by the petitioners are not disputed by the
respondents, or where the findings of fact of the Court of Appeals
are premised on the absence of evidence and are contradicted by
the evidence on record.

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* SECOND DIVISION.

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Same; Foreclosures; Act No. 3135; The deputy sheriff has in

his favor the presumption that his official duty was regularly
performed.—The petitioners further contend that even after the
sheriff had posted the notice, he may not have posted it anymore
for the remaining nineteen (19) days, as required by Act No. 3135.
It could also be, according to petitioners, that after the notice was
posted, the same may have been removed from where it was
posted either by an act of man or by an act of nature.
Paradoxically, the petitioners have not adduced any evidence to
support this theory. In fact, there was no attempt at all towards
that end. The supposition must, therefore, fall flat on its face. As
correctly held by the trial court and the appellate court, the
deputy sheriff has in his favor the presumption that his official
duty was regularly performed. The petitioners herein were unable
to topple this presumption in the trial court, the Court of Appeals,
and now in this Court.
Same; Same; Same; To be a newspaper of general circulation,
it is enough that it is published for the dissemination of local news
and general information; That it has a bona fide subscription list
of paying subscribers; and that it is published at regular intervals;
The newspaper need not have the largest circulation so long as it is
of general circulation.—To be a newspaper of general circulation,
it is enough that it is published for the dissemination of local
news and general information; that it has a bona fide subscription
list of paying subscribers; and that it is published at regular
intervals. The newspaper must not also be devoted to the
interests or published for the entertainment of a particular class,
profession, trade, calling, race or religious denomination. The
newspaper need not have the largest circulation so long as it is of
general circulation.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

Oscar L. Karaan for petitioner.

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Erlinda M. Perez for herself and in behalf of

respondent Maria Cecilia Perez.
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Perez vs. Perez

CHICO-NAZARIO, J.:

Before the Court is a1 petition for review on certiorari,

assailing the Decision of the Court of Appeals, dated 30
July 1999, which affirmed the ruling of the trial court, and
declared valid the Sheriff’s auction sale, subject of the
instant case, for
2 having complied with the requirements
3 of
Act No. 3135,
4 as amended by Act No. 4118, and its
Resolution dated 15 June 2000, denying the Motion for
Reconsideration.

THE FACTS

The antecedents, as found by the Court of Appeals, are

undisputed, viz.:

“The controlling facts are, by and large, not in dispute especially

considering that the factual recitals hereunder are subject of
stipulation of facts among the parties, to wit:
On May 25, 1973, the plaintiffs-appellants executed a deed of
real estate mortgage in favor of the Development Bank of the
Philippines (DBP, for brevity) over the property covered by
Transfer Certificate of Title No. T-44603 of the Registry of Deeds
of Bataan as security for an agricultural loan of P6,500.00. On
May 28, 1973, the mortgage contract was registered in the
Registry of Deeds of Bataan. Subsequently, plaintiffs-appellants
defaulted in their loan obligations without even paying a single
amortization. On November 14, 1978, the DBP, as mortgagee and
duly constituted attorney-in-fact of appellants, instituted
extrajudicial foreclosure proceedings under Act No. 3135, as
amended, by filing an application with the Office of

_______________

1 Rollo, pp. 24-36; Penned by Associate Justice Presbitero J. Velasco, Jr. with
Associate Justices Fermin A. Martin, Jr. and B.A. Adefuin De La Cruz concurring.
2 An Act To Regulate The Sale Of Property Under Special Powers Inserted In
Or Annexed To Real Estate Mortgages.
3 An Act To Amend Act Numbered Thirty-One Hundred And Thirty-Five
Entitled, “An Act To Regulate The Sale Of Property Under Special Powers

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Inserted In Or Annexed To Real Estate Mortgages.”

4 Rollo, p. 38.

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Perez vs. Perez

the Provincial Sheriff of Bataan. The necessary notice of Sheriff’s

sale was issued and posted by the deputy sheriff at three (3)
public places in Morong, Bataan, where the mortgaged property is
located and duly published for three (3) consecutive weeks in the
Olongapo News. On December 19, 1978 at 10:00 o’clock in the
morning, the public auction sale was conducted at the municipal
building in Morong, Bataan, wherein the defendant-appellee
Democrito Perez emerged as the winning bidder for the bid price
of P11,000.00. A corresponding certificate of sale was issued in
favor of said appellee Democrito Perez by the Deputy Sheriff and
was registered with the Register of Deeds on February 22, 1979.
Since plaintiffs-appellants failed to exercise their right to redeem
the foreclosed property, original defendant Democrito Perez
executed an affidavit of consolidation which resulted in the
issuance
5 of a new TCT No. T-82438 in his favor on February 22,
1980.”

On 03 June 1985, a civil case for Annulment of Public

Auction Sale with Damages coupled with6 Preliminary
Injunction and Prayer for Restraining Order was filed by
herein petitioners against the respondents before the
Regional Trial Court (RTC), Balanga, Bataan. It was
originally assigned to Branch 3, but was later re-raffled to
Branch 1, presided over by Judge Benjamin T. Vianzon.
After trial, a decision was 7eventually promulgated by
the RTC on 11 August 1993. Finding no merit in the
complaint, it dismissed the case.
Not satisfied with the RTC’s ruling, the petitioners filed
an appeal with the Court of Appeals. They alleged that the
RTC erred in holding that the public auction sale of the
subject mortgaged property was valid despite the lack of
notice to them, thus, depriving them of their right to
property without due process of law. They further alleged
that the notice of

_______________

5 Rollo, p. 25.
6 Records, Volume I, pp. 1-8.
7 Rollo, pp. 39-72.

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public auction sale was not validly published 8 in a

newspaper of general circulation, as required by law.
The Court of Appeals, in its Decision dated 30 July 1999,
denied the appeal, the decretal portion of which reads:

“WHEREFORE, the Decision of the court a quo 9 is AFFIRMED in

toto with costs against plaintiffs-appellants.”

A Motion for Reconsideration was filed by herein

petitioners dated 26 August 1999. They averred that the
Olongapo News, the newspaper where the notice of auction
sale was published, was not a newspaper 10 of general
circulation in the Province of Bataan, and that the notices
for the 11foreclosure of the subject property were not properly
posted. 12

In a Resolution dated 15 June 2000, the Court of

Appeals denied the motion for reconsideration on the
ground that the matters embodied therein had already
been passed upon and resolved in its Decision.
Still not satisfied, the petitioners filed the instant
petition before the Court, under Rule 45 of the 1997 Rules
on Civil Procedure.
On 18 October 2000, the Court issued a Temporary
Restraining Order, a portion of which reads:

“NOW, THEREFORE, you (respondents), your officers, agents,

representatives, and/or persons acting upon your orders or, in
your place or stead, are hereby ENJOINED from implementing
the decision and resolution dated July 30, 1999 and June 15,
2000, respectively, of the Court of Appeals in CA-G.R. CV No.
44246 entitled “Zosimo Perez, et al. vs. Democrito Perez, et al.”

_______________

8 CA Rollo, pp. 73-74.

9 Rollo, p. 36.
10 Rollo, p. 73.
11 Rollo, p. 76.
12 Rollo, p. 38.

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Perez vs. Perez

ASSIGNMENT OF ERRORS

The petitioners assigned as errors the following:

THE FACTUAL FINDINGS OF THE COURT OF APPEALS ARE

GROSSLY CONTRARY TO THE UNDISPUTED FACTS ON
RECORD.

II

THERE WAS NON-COMPLIANCE WITH THE

REQUIREMENTS ON POSTINGS.

III

THERE WAS NO PUBLICATION IN A NEWSPAPER OF

GENERAL CIRCULATION
13 WHERE THE REAL PROPERTY IS
SITUATED.

THE ISSUE

Based on the foregoing assignment of errors, the lone issue

to be resolved is whether or not the essential requirements
for the validity of the sheriff’s auction sale under Act No.
3135, as amended by Act No. 4118, governing the
extrajudicial foreclosure of real estate mortgage, have been
observed in the instant case.

THE COURT’S RULING

As to the first assignment of error, petitioners claim that

the factual findings of the Court of Appeals are grossly
contrary to the undisputed facts on record.
Through the ages, we have14 persistently stressed that
this Court is not a trier of facts. The factual findings of the
appel-

_______________

13 Rollo, pp. 12-14.

14Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,
G.R. No. 147589, 26 June 2001, 359 SCRA 698, citing

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78 SUPREME COURT REPORTS ANNOTATED

Perez vs. Perez

late court are generally binding on us especially when 15 in

complete accord with the findings of the trial court. This
rule, however, is not absolute, as it admits of certain
exceptions, to wit: (a) where there is grave abuse of
discretion; (b) when the finding is grounded entirely on
speculations, surmises or conjectures; (c) when the
inference made is manifestly mistaken, absurd or
impossible; (d) when the judgment of the Court of Appeals
was based on a misapprehension of facts; (e) when the
factual findings are conflicting; (f) when the Court of
Appeals, in making its findings, went beyond the issues of
the case and the same are contrary to the admissions of
both appellant and appellee; (g) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed
by the parties and which, if properly considered, would
justify a different conclusion; and, (h) where the findings of
fact of the Court of Appeals are contrary to those of the
trial court, or are mere conclusions without citation of
specific evidence, or where the facts set forth by the
petitioners are not disputed by the respondents, or where
the findings of fact of the Court of Appeals are premised on
the absence of evidence
16 and are contradicted by the
evidence on record.
The exceptions cited above do not apply in the instant
case. The factual findings of the Court of Appeals are fully
supported by the records as will be shown by the following
eluci-

_______________

Valmonte v. Court of Appeals, G.R. No. 41621, 18 February 1999, 303

SCRA 278; Inciong, Jr. v. Court of Appeals, G.R. No. 96405, 26 June 1996,
257 SCRA 578; Palomado v. National Labor Relations Commission, G.R.
No. 96520, 28 June 1996, 257 SCRA 680; Heirs of the Late Teodoro
Guaring, Jr. v. Court of Appeals, G.R. No. 108395, 07 March 1997, 269
SCRA 283; Sesbreño v. Central Board of Assessment Appeals, G.R. No.
106588, 24 March 1997, 270 SCRA 360; Presidential Commission on Good
Government v. Cojuangco, Jr., G.R. No. 133197, 27 January 1999, 302
SCRA 217.
15Philippine Airlines, Inc. v. Court of Appeals, G.R. No. 127473, 08
December 2003, 417 SCRA 196.
16Ibid.

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Perez vs. Perez

dation. Indeed, the findings of fact of the trial court and the
Court of Appeals are in complete unison.
As to the second assignment of error, we find the same
bereft of merit as there was compliance with the
requirement on posting of notices.
The requirement on the posting of notices is found in
Section 3 of Act No. 3135, as amended by Act No. 4118, viz.:

Sec. 3. Notice shall be given by posting notices of the sale for not
less than twenty days in at least three public places of the
municipality or city where the property is situated, and if such
property is worth more than four hundred pesos, such notice shall
also be published once a week for at least three consecutive weeks
in a newspaper of general circulation in the municipality or city.

The petitioners advance the argument that the

requirement on posting of notices was not complied with
because, as they put it:

. . . while the deputy sheriff testified that he posted the notices at

the puericulture center, he also stated that this place was just
beside the municipal hall where he also posted a copy of the
notice. In effect, he posted two notices at one and the same place.
Considering the close proximity of the two buildings, it cannot be
said that they were located at two different places. So that, by his
own admission, the deputy sheriff posted the notices at only two
public places, namely, the place where the public market was
located and the place where the puericulture
17 center and the
municipal building were both located.

This argument of the petitioners does not convince. Their

position that the puericulture center and the municipal
building should be considered one and the same place is
pure fallacy and totally unacceptable for being contrary to
the actual state of things.

_______________

17 Rollo, p. 13.

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80 SUPREME COURT REPORTS ANNOTATED

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Perez vs. Perez

The petitioners further contend that even after the sheriff

had posted the notice, he may not have posted it anymore
for the remaining nineteen (19) days, as required by Act
No. 3135. It could also be, according to petitioners, that
after the notice was posted, the same may have been
removed from where it 18 was posted either by an act of man

or by an act of nature.
Paradoxically, the petitioners have not adduced any
evidence to support this theory. In fact, there was no
attempt at all towards that end. The supposition must,
therefore, fall flat on its face. As correctly held by the trial
court and the appellate court, the deputy sheriff has in his
favor the presumption
19 that his official duty was regularly
performed. The petitioners herein were unable to topple
this presumption in the trial court, the Court of Appeals,
and now in this Court.
On the third assignment of error (lack of publication in a
newspaper of general circulation in the place where the
property is located), petitioners argue that the Olongapo
News, the newspaper where the notice of public auction
was published once a week for three (3) consecutive weeks,
was not a newspaper of general circulation in Morong,
Bataan, in the year 1978, and that the situs of its
circulation was not where the subject property is located.
The publication requirement can be found in Section 1 of
Presidential Decree No. 1079 (P.D. No. 1079):

SECTION 1. All notices of auction sales in extrajudicial

foreclosure of real estate mortgage under Act No. 3135 as
amended, judicial notices such as notices of sale on execution of
real properties, notices in special proceedings, court orders and
summonses and all similar announcements arising from court
litigation required by law to be published in a newspaper or
periodical of general circulation in particular provinces and/or
cities shall be published in newspapers or publications published,
edited and circulated in the same city

_______________

18 Rollo, p. 14.
19 Section 3(m), Rule 131 of the Revised Rules of Court.

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and/or province where the requirement of general circulation

applies: Provided, That the province or city where the
publication’s principal office is located shall be considered the
place where it is edited and published: Provided, further, That in
the event there is no newspaper or periodical published in the
locality, the same may be published in the newspaper or
periodical published, edited and circulated in the nearest city or
province: Provided, finally, That no newspaper or periodical
which has not been authorized by law to publish and which has
not been regularly published for at least one year before the date
of publication of the notices or announcements which may be
assigned to it shall be qualified to publish the said notices.

To be a newspaper of general circulation, it is enough that

it is published for the dissemination of local news and
general information; that it has a bona fide subscription
list of paying subscribers; and that it is published at
regular intervals. The newspaper must not also be devoted
to the interests or published for the entertainment of a
particular class,
20 profession, trade, calling, race or religious

denomination. The newspaper need not have 21the largest

circulation so long as it is of general circulation.
The testimonies of witnesses Deputy Sheriff Renato
Robles, Susana Curiano, and Cesar De La Torre, are
enlightening on the matter. Their testimonies point to the
unmistakable conclusion that, indeed, the Olongapo News
was a newspaper of general circulation in 1978 in Morong,
Bataan.
Susana Curiano, who was presented as a witness for the
petitioners in this case, and not for the respondents, as the
former had erroneously written in its petition, testified that
the Olongapo News was the only newspaper in general
circu-

_______________

20Fortune Motors (Phils.), Inc. v. Metropolitan Bank and Trust

Company, G.R. No. 115068, 28 November 1996, 265 SCRA 72, citing
Bonnevie v. Court of Appeals, G.R. No. L-49101, 24 October 1983, 125
SCRA 122; Basa v. Mercado, 61 Phil. 632 (1935).
21Ibid., citing Banta v. Pacheco, 74 Phil. 67 (1942).

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Perez vs. Perez

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lation in Bataan during

22 the time that the notice of auction
sale was published.
Deputy Sheriff Renato Robles testified that in the years
1977, 1978, and 1979, there was only one newspaper of
general
23 circulation in Bataan, and this was the Olongapo

News.
Cesar De La Torre, who was the very first editor of the
Olongapo News, testified that this newspaper had prepaid 24

subscribers in Olongapo City, Zambales and Bataan.

Further, he testified that prior to the year 1979, it was only
the Olongapo News which was considered as a newspaper
of general circulation that was authorized
25 to publish legal
notices in the province of Bataan.
Respondent Democrito Perez, substituted now by
Erlinda and Maria Cecilia M. Perez, presented evidence to
prove that
26 in other cases requiring publication in Morong,
Bataan, the

_______________

22 TSN, 28 May 1987, pp. 11-12.

23 TSN, 28 October 1987, p. 4.
24 TSN, 19 September 1988, pp. 6-7.
25Ibid., p. 8.
26 CA Rollo, pp. 4-5; Exhibit “3”—Record of Sp. Proc. No. 4493 entitled,
“Danilo L. De La Cruz v. Civil Registrar of Samal, Bataan” for Change of
Name; Exhibit “4”—Records of Sp. Proc. No. 4246 entitled, “In the Matter
of the Adoption of Minor Richard Pagayonan, Spouses Cesar H. Piega and
Patria K. Piega, Petitioners”; Exhibit “5”—Record of Sp. Proc. No. 4284
entitled, “Gregorio Rodriguez, Sr. v. Marciano Bernaldo, Local Civil
Registrar of Orani, for Petition for Correction of Entry in Civil Registry”;
Exhibit “6”—Record of Sp. Proc. No. 4185 entitled, “In the Matter of the
Adoption of the Minor Demarch Castro Velasco, Rodolfo Velasco,
Petitioner”; Exhibit “7”—Record of Sp. Proc. No. 4291 entitled, “In the
Matter of the Change of Letter ‘U’ to ‘O’ in the Family Name of Jaime
Facturan, Jaime Facturan, Petitioner”; Exhibit “8”—Record of Sp. Proc.
No. 4394 entitled, “Petition for Change of Name and Correction of Entry,
David G. Joco, Petitioner”; Exhibit “9”—Record of Sp. Proc. No. 4422
entitled, “Petition for Correction of Entries in the Civil Registry, Imelda
Briz, Petitioner”; Exhibit “10”—Record of Sp. Proc. No. 4350 entitled, “In
the Matter of the Adoption of Sitti Gemma Gumaru y Reyes, Antonio I.

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publications were made in the Olongapo News, and the

publication requirements of the law were deemed complied
with.
In the year 1978, there is no question that the Olongapo
News was not published in Morong, Bataan. It was
published in Olongapo. However, this does not mean that
the requirements of P.D. No. 1079 on the publication of
notices of auction sales were not followed by the
respondents herein. P.D. No. 1079 is categorical that in the
event there is no newspaper or periodical published in the
locality, the same may be published in the newspaper or
periodical published,
27 edited and circulated in the nearest
city or province. Since no newspaper of general circulation
was being published in Morong, Bataan, in the year 1978,
then the respondents were right in availing themselves of
the services of the Olongapo News, which, as found 28 by the
trial court, was the nearest publication in Bataan.
To recapitulate, the Olongapo News is a newspaper of
general circulation because it is published for the
dissemination of local news and general information, it has
a bona fide subscription list of paying subscribers, it is
published at regular intervals and it is not devoted to the
interests or published for the entertainment of a particular
class, profession,
29 trade, calling, race or religious
denomination. Being a newspaper of general circulation,
petitioners are, thus, deemed to have constructive notice of
the foreclosure proceedings. Therefore, the public auction
sale is valid for having complied with all the requirements
of the law.
WHEREFORE, finding no reversible error in the
Decision of 30 July 1999 and Resolution dated 15 June
2000 of the

_______________

Galvez, Petitioner”; and Exhibit “11”—Record of Sp. Proc. No. 4430

entitled, “Jean Galicia v. Local Civil Registrar of Orani, Bataan, For
Change of Name.”
27 Section 1, PD 1079.
28 Rollo, p. 71.
29Basa v. Mercado, supra, note 20.

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Antonio vs. Villa

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Court of Appeals, the same are hereby AFFIRMED. The

Temporary Restraining Order earlier issued is hereby
lifted. Costs against the petitioners.
SO ORDERED.

Puno (Chairman), Austria-Martinez, Callejo, Sr.

and Tinga, JJ., concur.

Judgment and resolution affirmed.

Note.—The failure to post a notice is not per se a ground

for invalidating the sale provided that the notice thereof is
duly published in a newspaper of general circulation. The
publication of the notice of sale in the newspaper of general
circulation alone is a more than sufficient compliance with
the notice—posting requirement of the law. (Development
Bank of the Philippines vs. Aguirre, 364 SCRA 755 [2001])

——o0o——

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