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[No. L6204. July 31, 1956]

CAPITOL SUBDIVISION, INC., plaintiff and appellee, vs.

PROVINCE OP NEGROS OCCIDENTAL, defendant and
appellant.

1. PLEADING AND PRACTICE POSTPONEMENTS

DISCRETION TO GRANT POSTPONEMENT TO BE
ExERCiSED WISELY.While the granting or refusal of
motions for continuance is discretionary, that discretion
must be exercised with a view to substantial justice.
Liberty should be exercised in granting postponenients of
trial to obtain presence of material evidence and to
prevent miscarriage of justice. (Canal Oil Co. vs. National
Oil Co. Cal Appeal, 66 P 2d 197.) A litigant is entitled to
reasonable delay and opportunity to get his witnesses.
(Moran vs. Leone, 129 So. 398, I Aa. App. 45 footnote 82,
17 C. J. S. 224.)

2. EVIDENCE WITNESSES CROSSEXAMINATION ON

MATTERS NOT EMBRACED IN THE DIRECT
EXAMINATION.Section 87 of the Rules of Court
provides that the adverse party may crossexamine a
witness for the purpose among others, of eliciting all
important facts bearing upon the issue. From this
provision it may clearly be inferred that a party may cross
examine a witness on matters not embraced in his direct
examination. But this does not mean that a party by doing
so is making the witness his own in accordance with
section 83 of said Rules. (III Moran, Rules of Court, 3rd
ed. 587.)

APPEAL from a judgment of the Court of First Instance of

Negras Occidental. Teodoro, Sr., J.
The facts are stated in the opinion of the Court.
Solicitor General Juan R. Liwag and Solicitor Jose C.
Bautista for appellant.
San Juan, Africa, Yniguez and Benedicto fbr appellee.

REYES, A., J.:

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The Provincial Hospital of Occidental Negros, located in

the City of Bacolod, capital of the province, was built in
1924 at a cost of about F200,000. But subsequent
inmprovements brought the total cost to more than half a
million pesos.
The Hospital was erected on a parcel of land of more
than 22,000 square meters identified as lot No. 378 of the
Bacolod Cadastre and claimed by the province of Oeciden
634

634 PHILIPPINE REPORTS ANNOTATED

Capitol Subdimsion, Inc. vs. Prov. of Negros Occ.

tal Negros as its property by virtue of a deed of sale with

donation executed in its favor by Jose Benares, former
owner, as a result of expropriation proeeedings. It does not
appear that a transfer certificate of title has been issued to
the province. But the lot has for many years stood in the
records of the assessment office as the property of the
Province or the Hospital and enjoyed exemption from the
realty tax as such.
In 1949, the Capitol Subdivision, Inc., a real estate
company, clahning to be the owner of the lot, questioned
the right of the Hospital to occupy it, and when its claim of
ownership was rejected, it brought the present action in the
Court of First Instance of Occidental Negros to recover
possession of the lot and reasonable rents for its use. But
before filing the action, it had, in May, 1950, the lot
declared in its name for assessment purposes.
It would appear that the lot in question was part of a
large tract of land known as the Hacienda Mandalagan,
formerly owned by Agustin Amenabar and Pilar Amenabar.
The land consisted of several lots. In 1926 the lots were
purchased by Jose Benares, who later mortgaged them to
the Philippine National Bank. The mortgage having been
foreclosed, the Bank bought the lots at a foreclosure sale
and had transfer certificates of title issued to it in 1934. In
1935 the Bank signed a contract agreeiijg to sell the lots to
Carlos Benares for P400,000, payable P30,000 down and
the balance in ten equal installments, the title to remain in
the Bank until the price had been fully paid. In an
instrument signed on the same date, Carlos Benares, on his
part, assigned to the Subdivision the rights acquired by
him under his contract with the Bank. With the payment of
the last installment in 1949, a deed of absolute sale was
executed by the Bank in favor of the Subdivision, and as a
result the latter was issued the corresponding transfer
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certificates of title for the lots, of which transfer certificate

of title No. 1798 pertains to lot No. 378, the one here in
question.

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VOL. 99, JULY 31, 1956 635

Capitol Subdivision, Inc. vs. Prov. of Negros Occ.

In resisting the action of the subdivision, the Province put

up the defense that it had acquired the lot in question from
its former owner, Jose Benares, and that the subdivision
was aware of that f act when it bought the hacienda. In
support of this defense, the province endeavored to provfc
that in compliance with Act No. 3144, as amended, which
required the Province to provide a site for the hospital
before the f unds for its eonstruction could be released, the
Province instituted condemnation proceedings, (Civil Case
No. 3041) in 1924 or 1925 against Jose Benares for the
acquirement of the lot in question, took possession of the
same and began the construction of the hospital that
pending trial the case was amicably settled, with the
Province paying to Benares the assessed value of the lot
and Benares donating to the Province so much of the
purchase price as was in excess of the assessed value that
to give effeet to the settlement Benares executed a deed of
sale with donation in favor of the Province, which deed was
delivered to the clerk of court and attached to the record of
the case that as a result of this transaction the lot became
the property of the province that the court record of the
case, including the deed of sale and donation, was totally
destroyed during the last war that the subdivision had
constructive notice of those facts and was therefore not an
innocent purchaser, knowing fully well that at the time it
bought the lot this was already occupied by the Hospital
and the Hospital had been in full operation as a public
institution f or many years prior to the date of the alleged
acquisition and that Mr. Alfredo Montelibano, the
controlling stoekholder and president and general manager
of the subdivision, had knowledge of those facts because
during his incumbency as first city mayor of Bacolod, the
city was contributing a large sum yearly for the support,
operation, and maintenance of the Hospital.
After trial, the lower court rendered judgment in favor of
plaintiff requiring the defendant to restore possession of
the lot to plaintiff subject to the latter's right to exercise
the

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Capitol Subdivision,. Inc. vs. Prov. of Negros Occ.

option granted in Article 361 of the old Civil Code and

further requiring the defendant to pay rents from
November 8, 1935, which all in all would amount to
P151,706.29. From this judgment defendant appealed
derectly to this court. For some unknown reason the record
was elevated to the Court of Appeals, but that court, upon
motion of the plaintiffappellee, certified the case here, for
involving more than P50,000.
The questions for determination are (1) whether the
defendant had already acquired right or title to the lot as a
result of the alleged expropriation proceedings and deed of
sale with donation, and (2) whether plaintiff had actual or
constructive knowledge of such fact at the time it bought
the property.
After going over the record, we do not feel that those
questions could be justly decided on the somewhat
limitedevidence actually admitted by the trial court. With
the record of expropriation proceedings destroyed together
with the deed of sale and donation attached thereto,
secondary proof of such proceedings and deed should have
been allowed. But presentation of that proof was effectively
barred when the trial court refused to give the provincial
fiscal sufficient time to re&ubpoena two important
witnesses, who had failed to come on the day of the
continuation of the trial for lack of notice. Those witnesses
were Mr. Jose Benares (the person from whom the Province
allegedly acquired the lot) and Mr. Ildefonso Coscolluela,
who, as former treasurer of the Province, had knowledge of
such acquisition. Considering the amount of the public
funds and the public interest involved, the trial court
should have granted the fiscal sufficient time to produce
the said witnesses. A delay of two or three days for that
purpose would not have amounted to much, and the plea
that the adverse party was incurring heavy expenses for its
attorneys' continued stay in Bacolod could have been met
with a ruling that those expenses, if reasonable, should be
taxed against the party that caused them. Liberality
should be exer

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Capitol Subdivision, Inc. vs. Prov. of Negros Occ.

cised in granting postponements of trial to obtain presence

of material evidence and to prevent miscarriage of justice.
(Canal Oil Co. vs. National Oil Co. Cal Appeal, 66 P. 2d
197.) A litigant is entitled to reasonable delay and
opportunity to get his witnesses. (Moran vs. Leone, 129 So.
398, 1, Aa. App. 45 footnote 82, 17 C. J. S. 224.) While the
granting or refusal of motions for continuance is
discretionary, that discretion must be exercised wisely with
a view to substantial justice.
Other evidence of vital importance to the case also
appears to have barred.
On the question of the subdivision's good or bad faith,
Mr. Montelibano, the president and general manager and
controlling stockholder of the Subdivision, pretends that
the Subdivision had no knowledge of the expropriation or
deed of sale with donation at the time it bought the land.
The fiscaFs efforts to crossexainine him on those matters
were frustrated by plaintiff's counsel's objections and the
trial court's rulings sustainiug those objections. The court
reasoned that Mr. Montelibano was then on the stand as
plaintiff's own witness and could not be questioned in such
a way as to make him to the defendant's witness. But the
fact alone that Mr. Montelibano was then testifying as
plaintiff's witness is no justification for not permitting the
fiscal to crossexamine him on any matter that would elicit
all important facts bearing on the issue. As former Chief
Justice Moran puts it

In this jurisdiction, section 87 above quoted provided that the

adverse party may crossexamine a witness for thfc purpose
among others, of eliciting all important f acts bearing upon the
issue. From this provision it may elearly be inferred that a party
may crossexamine a witness on matters not embraced! in his
direct examination. But this does not mean that a party by doing
so is making the witness his own accordance with section 83." (III
Moran, Rules of Court, 3rd ed. 587.)

The trial court refused to allow the witness Jose Marco, a

former deputy clerk of court, to say anything about the
expropriation proceeding in question *on the excuse that
his

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638 PHILIPPINE REPORTS ANNOTATED

Valencia and Valencia vs. Leontio, et al.

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testimony on this matter would be immaterial and

incompetent. The loss of the records of said expropriation
proceeding had already been established, and section 51,
Rule 123, expressly permits proof by secondary evidence.
The trial court, after thus preventing defendant from
proving the existence of the expropriation case through the
testimony of Jose Marco, willingly aeceded to the
presentation in rebuttal of a witness who testified to the
nonexistence of the said expropriation case, thus
permitting plaintiff to prove in rebuttal what he had ref
used def endant to substantiate in defense.
The trial court appears to have had no justification in
refusing to admit most of the exhibits offered in evidence
for the defendant. Those exhibits have direct bearing on
the issue of ownership.
In fine, we are persuaded that the interests of justice
demand that there be further trial in this case.
Wherefore, the judgment appealed from is set aside andy
the case ordered remanded to the court of origin for further
trial in order that the defendant may have an opportunity
to fully prove its case, with equal opportunity to the
plaintiff to meet such further evidence asthe defendant
may present, it being understood that the evidence already
taken need not be reintroduced. No pronouncement as to
costs.
Pars, C. J., Bengzon, Padilla, Montemayor, Bautista
Angelo, Labrador, Concepcion, Reyes, J. B. L., Eendencia,
and Felix, JJ., concur.
Judgment set aside.

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