[ GR No.

166536, Feb 04, 2010]

FLOR MARTINEZ v. ERNESTO G. GARCIA +

FACTS:

Respondent Edilberto Brua was the registered owner of a parcel of land located in Mandaluyong,
Rizal, covered by Transfer Certificate of Title (TCT) No. 346026 of the Registry of Deeds of Rizal,
which is the subject matter of this case. The property was first mortgaged to the Government
Service Insurance System (GSIS), and such mortgage was annotated at the back of TCT No.
346026 as Entry No. 91370, inscribed on June 5, 1974.[5] On February 5, 1980, respondent Brua
obtained a loan from his brother-in-law, respondent Ernesto Garcia, in the amount of One
Hundred Fifty Thousand Pesos (P150,000.00) and, to secure the payment of said loan,
respondent Brua mortgaged the subject property to respondent Garcia, as evidenced by a Deed
of Real Estate Mortgage[6] executed in respondent Garcia's favor. Since the title to the subject
property was in the possession of the GSIS and respondent Garcia could not register the Deed
of Real Estate Mortgage, he then executed an Affidavit of Adverse Claim [7] and registered it with
the Registry of Deeds of Rizal on June 23, 1980 as Entry No. 49853/T-346026,[8] which remained
uncanceled up to this time.

Sometime in October 1991, respondent Brua requested respondent Garcia to pay the former's
loan with the GSIS, so that the title to the subject property would be released to the latter.
Respondent Garcia then paid GSIS the amount of P400,000.00 and, thus, the title to the subject
property was released to him.
On October 22, 1991, a Deed of Absolute Sale [9] was executed between respondents Garcia and
Brua over the subject property, where respondent Brua sold the property in the amount of
P705,000.00. In the same deed, it was stated that the subject property was only a partial payment
of respondent Brua's mortgage indebtedness to respondent Garcia, which he could no longer
redeem from the latter. Respondent Garcia then registered the Deed of Sale with the Registry of
Deeds of Rizal on October 24 1991, and a new TCT No. 5204[10] was issued in the names of
respondent Garcia and his wife. However, the annotations at the back of the previous title were
carried over to the new title, to wit: Entry No. 56837, a Notice of Levy on Attachment and/or Levy
inscribed on January 8, 1981;[11] Entry No. 2881 showing a Notice of Levy on Execution in favor
of petitioner Flor Martinez, which was inscribed on July 11, 1988;[12] Entry No. 3706, which was a
Certificate of Sale in favor of petitioner inscribed on September 2, 1988;[13] Entry No. 72854, which
was a Notice of Levy on Execution in favor of Pilipinas Bank inscribed on December 8, 1981;[14]
and Entry No. 16611 inscribed on October 24, 1991, which was the cancellation of respondent
Brua's mortgage with GSIS.[15]
Issue:

Whether
or not CA has acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction
Whether or not Garcia’s claim must prevail over that of petitioner.
Ruling:
Petitioner should have filed a petition for review under Rule 45 of the Rules of Court instead of a
petition for certiorari under Rule 65, since she is assailing the CA decision and resolution which
are final judgments. Rule 45 clearly provides that decisions, final orders or resolutions of the CA
in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed
to us by filing a petition for review, which is just a continuation of the appellate process over the
original case.[18] And the petition for review must be filed within fifteen (15) days from notice of the
judgment or final order or resolution appealed from, or of the denial of petitioner's motion for a
new trial or reconsideration filed in due time after notice of the judgment. [19]

In this case, petitioner received a copy of the CA Resolution denying her motion for
reconsideration on November 24, 2004; and, thus, under Rule 45, she has 15 days from receipt
of such resolution, or until December 9, 2004, to file a petition for review. However, petitioner did
not file a petition for review; instead, she filed a petition for certiorari under Rule 65 on January
24, 2005.[20] Hence, the CA decision and resolution have already attained finality, and petitioner
has lost her right to appeal.

A petition for certiorari under Rule 65 is proper if a tribunal, a board or an officer exercising judicial
or quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction and there is no appeal, or any plain, speedy
and adequate remedy in the ordinary course of law.[21] In this case, petitioner had the remedy of
appeal, and it was the speedy and adequate remedy in the ordinary course of law. Thus, a special
civil action for certiorari cannot be used as a substitute for an appeal that the petitioner has already
lost. Certiorari cannot be allowed when a party to a case fails to appeal a judgment to the proper
forum despite the availability of that remedy, certiorari not being a substitute for a lost appeal. [22]
Certiorari will not be a cure for failure to timely file a petition for review on certiorari under Rule
45. [23]
Respondent Garcia's adverse claim, which refers to the deed of mortgage executed by
respondent Brua in his favor, was annotated on respondent Brua's title registered with the
Registry of Deeds of Rizal on June 23, 1980 as Entry No. 49853. The adverse claim was already
existing when the Notice of Levy on Execution, as well as the Certificate of Sale in favor of
petitioner, was inscribed on July 11, 1988 and September 2, 1988, respectively; and, hence, the
adverse claim is sufficient to constitute constructive notice to petitioner regarding the subject
property. When petitioner registered her Notice of Levy on Execution on the title of the subject
property, she was charged with the knowledge that the subject property sought to be levied upon
on execution was encumbered by an interest the same as or better than that of the registered
owner thereof.[34] Thus, no grave abuse of discretion was committed by the CA when it held that
the notice of levy and subsequent sale of the subject property could not prevail over respondent
Garcia's existing adverse claim inscribed on respondent Brua's certificate of title.

The annotation of an adverse claim is a measure designed to protect the interest of a person over
a piece of real property, where the registration of such interest or right is not otherwise provided
for by the Land Registration Act or Act No. 496 (now RD. No. 1529 or the Property Registration
Decree), and serves a warning to third parties dealing with said property that someone is claiming
an interest on the same or a better right than that of the registered owner thereof. [35]
We ruled in Sajonas that the inscription of the adverse claim on the title of the subject property
was still in effect on February 12, 1985, when the sheriff annotated the notice of levy on execution
in favor of respondent therein; that respondent therein was charged with knowledge that the
subject property sought to be levied upon on execution was encumbered by an interest the same
as or better than that of the registered owner thereof. We then said that such notice of levy could
not prevail over the existing adverse claim inscribed on the certificate of title in favor of the
Sajonases.

As in that case, the adverse claim of respondent Garcia based on the Deed of Mortgage executed
by respondent Brua over the subject land in the former's favor was existing when the Notice of
Levy on Execution was inscribed in favor of petitioner. Although the deed of sale between
respondents Brua and Garcia was done after the notice of levy on execution and certificate of
sale were inscribed on the title, it was clearly stated in the deed that the subject property was only
a partial payment for respondent Brua's mortgage indebtedness to respondent Garcia, which the
former could no longer redeem from the latter. Thus, the sale of the subject property by
respondent Brua to respondent Garcia was by reason of respondent Brua's prior loan from
respondent Garcia, which was secured by a mortgage on the subject property; and this mortgage
was registered and already existing on the title of the subject property when the Notice of Levy
on Execution and Certificate of Sale in favor of petitioner were inscribed thereon. Thus, petitioner's
claim over the subject property must yield to the earlier encumbrance registered by respondent
Garcia.

WHEREFORE, the petition is DISMISSED. The Decision dated August 12, 2004 and Resolution
dated November 18, 2004 of the Court of Appeals in CA-G.R. CV No. 61591 are AFFIRMED.