15 AUGUST 2020 LAND TITLE AND DEEDS (ATTY. RAQUEL R.

DUJUNGCO)

G.R. No. 201070 TO GUARANTEE A PRINCIPAL X X X (illegible) IN THE SUM OF ₱36,036.10

PAYABLE WITHIN TWENTY FIVE (25) YEARS WITH ANNUAL INTEREST
LUZ S. NICOLAS, Petitioner OF TWELVE (12%) PERCENT UNTIL FULLY PAID IN THREE HUNDRED
vs. (300) EQUAL MONTHLY INSTALLMENTS.x x x
LEONORA C. MARIANO, Respondent
DATE OF INSTRUMENT – Feb. 12, 1981
DECISION
DATE OF INSCRIPTION – May 8, 1981
DEL CASTILLO, J.:
and further subject to a proviso, proscribing any transfer or encumbrance of said
When both parties are in pari delicto or in equal fault, none of them may expect parcel of land, viz[.]:
positive relief from the courts in the interpretation of their agreement; instead,
they shall be left as they were at the time the case was filed. This Petition for "EXCEPT BY HEREDITARY SUCCESSION, THE HEREIN LOT OR ANY
Review on Certiorari1 assails the Court of Appeals' (CA) June 21, 2011 PART THEREOF CANNOT BE x x x (illegible), TRANSFERRED, OR
Decision2 and March 1, 2012 Resolution3 denying herein petitioner's Motion for ENCUMBERED WITHIN FIVE (5) YEARS FROM THE DATE OF RELEASE
Partial Reconsideration4 in CA-G.R. CV No. 93532. OF THE MORTGAGE INSCRIBED AT THE BACK HEREOF WITHOUT
PRIOR WRITTEN CONSENT AND AUTHORITY FROM THE NATIONAL
Factual Antecedents HOUSING AUTHORITY."

The CA's summation of the facts is hereby adopted, thus: Accordingly, the NHA withheld conveyance of the original TCT No. C-44249 to
Leonora Mariano, furnishing her instead a photocopy thereof as the issuance of
The subject of the instant controversy is the one-half portion of a 155-square the original TCT in her name is conditioned upon her full payment of the
meter parcel of land known as Lot 13-A, Block 40 located at 109 Kapayapaan mortgage loan. Leonora Mariano’s last payment was in February 1999. The
Street, Bagong Barrio, Caloocan City and covered by Transfer Certificate of Title NHA’s Statement of Account indicates that as of September 30, 2004, Leonora
No. (TCT) No. C-44249. The parcel of land is part of the National Housing Mariano’s outstanding obligation amounted to ₱37,679.70. Said obligation
Authority’s (NHA) Bagong Barrio Project and built thereon is plaintiff-appellee remained unpaid.
Leonora Mariano’s5 five-unit apartment which she leases out to tenants.
On January 28, 1998, Leonora Mariano obtained a ₱100,000.00 loan from
In 1972, Leonora Mariano filed with the NHA Application No. 99-02-0323 for a defendant-appellant Luz Nicolas6 with a payment term of ten (10) months at the
land grant under the Bagong Barrio Project. In 1978, the NHA approved the monthly interest rate of 7%. To secure the loan, she executed a Mortgage
Application, thus, her institution as grantee of the foregoing parcel of land. The Contract over the subject property, comprising the one-half portion of the parcel
grant, however, is subject to a mortgage inscribed as Entry No. 98464/C- of land.
39393 on the dorsal side of TCT No. C-44249, viz[.]:
On February 22, 1999, Leonora Mariano, having defaulted in the payment of her
--- NATIONAL HOUSING AUTHORITY – obligation, executed in favor of Luz Nicolas a second mortgage deed denominated
as Sanglaan ng Lupa at Bahay, this time mortgaging the subject property and
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the improvements thereon for a consideration of P552,000.00 inclusive of the Complaint8 for "Specific Performance with Damages and with Prayer for the
original loan of P100,000.00. The Sanglaan ng Lupa at Bahay provides for a Issuance of a Temporary Restraining Order and thereafter a Permanent
payment term of one (1) year and contains the following stipulations: Mandatory Injunction" before RTC Branch 121, Mariano sought to be released
from the second mortgage agreement and stop Nicolas from further collecting
xxx xxx xxx upon her credit through the rentals from her apartments, claiming that she has
fully paid her debt. In addition, she prayed for other actual damages, moral
1. Na kung sakali at mabayaran ng UNANG PANIG ang IKALAWANG PANIG damages, attorney’s fees, and injunctive relief.
o ang kahalili nito ang nabanggit na pagkakautang na halagang Limang Daan
Limamput Dalawang Libong Piso (P552,000.00), salaping Pilipino, kasama ang In her Answer,9 Nicolas denied that she collected rentals from Mariano’s
interes o tubo, sa loob ng taning na panahon, ay mawalan ng bisa at saysay ang apartments; that Mariano’s debt remained unpaid; that the subject property and
SANGLAANG ito; the improvements thereon were later sold to her via a deed of absolute sale
executed by Mariano which, however, did not bear the written consent of the
2. Na kapag hindi nabayaran ng UNANG PANIG sa IKALAWANG PANIG latter’s husband; and that as a result of the sale, she obtained the right to collect
ang buong halagang pagkakautang na nabanggit sa itaas, ay ituturing the rentals from the apartment tenants. Nicolas thus prayed that Mariano be
ng ma[g]kabilang panig na ang lupa at bahay na nakasangla ay nabili ordered to surrender the title to the subject property to her, and to pay her moral
at pagmamayari na ng IKALAWANG PANIG at sumasang-ayon ang and exemplary damages and costs.
UNANG PANIG na magsagawa ng kaukulang Kasulatan ng Bilihan na
wala nang karagdagang bayad o halagang ibinibigay sa nagsangla. After trial, the trial court issued its Decision10 in Civil Case No. C-20937 dated
August 26, 2009, decreeing as follows:
xxx xxx xxx
The Court is inclined to believe that what had been entered into by and between
On June 7, 2000, Leonora Mariano, similarly defaulting on the second the parties was a mere contract of mortgage of real property and not a sale of
obligation, executed a deed of Absolute Sale of Real Property, conveying to Luz real property.
Nicolas the ownership of the subject property and the improvements thereon for
a purchase price of ₱600,000.00. A document denominated Pagtanggap ng The Court could not uphold the validity of the Deed of Absolute Sale of Real
Kabuang Halaga, executed before Punong Barangay Crispin C. Peña, Sr. Property dated June 7, 2000 because it is tainted with flaws and defects. There
attested to the full payment of the ₱600,000.00 to Leonora Mariano. It appears is no evidence that the parties have given their consent thereto. A careful
that from June 1999, the tenants of Leonora Mariano’s five-unit apartment have scrutiny of the document will readily show that at the time of the execution
been remitting monthly rentals to Luz Nicolas in the amount of ₱2,000.00, or thereof there was no consideration for the sale of the property. The alleged
₱10,000.00 in the aggregate. From said period until June 2004, Luz Nicolas’ vendor, plaintiff herein, made it appear that she received the sum of
rental collection amounted to ₱600,000.00.7 (Emphasis in the original) Php600,000.00 in full and in her complete satisfaction from the alleged vendee,
herein defendant. The lack of consideration was likewise bolstered by the
Ruling of the Regional Trial Court defendant’s production of the handwritten memorandum or note of the various
amounts allegedly received by the aforesaid defendant from the plaintiff on
different occasions. It is important to stress, however, that even admitting
On July 8, 2004, Leonora C. Mariano (Mariano) sued Luz S. Nicolas (Nicolas)
arguendo that several amounts were received by the plaintiff from the
before the Regional Trial Court of Caloocan City (RTC). In her Amended
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 15 AUGUST 2020 LAND TITLE AND DEEDS (ATTY. RAQUEL R. DUJUNGCO)

defendant, there has not been any indication that the same were intended as It is important to stress however, that in plaintiff’s sincere desire to settle her
consideration for the sale of the property in question. x x x It has been observed obligation, upon request of the defendant, had even executed a Special Power of
also that the alleged payments occurred long after the execution of the Deed of Attorney in favor of the latter, authorizing the aforesaid defendant to collect the
Sale, or a span of four (4) months to be more exact. No less than the barangay rentals from the five-door apartment belonging to the plaintiff, which
captain had categorically declared that he did not see that the defendant even commenced from June 1999 up to June 2004. Although the defendant assured
handed over the amount of Php600,000.00 to the plaintiff. Moreover, a scrutiny the plaintiff that the payments by way of rentals would be applied to the
of the aforesaid fictitious Deed of Absolute Sale of Real Property will readily indebtedness of the plaintiff, such verbal agreement was never reduced in
show that it did not even specifically described [sic] the subject-matter of the writing in view of the trust and confidence reposed by the plaintiff upon the
alleged sale. defendant.

There are two sets of mortgage contracts executed by the parties herein. One in In sum, the defendant was able to collect the total amount of Php612,000.00
the amount of Php100,000.00 with an interest of 7% payable in ten (10) month from the tenants of the plaintiff, which evidently tremendously exceeded the
period and the other one in a jacked up price of Php552,000.00 payable within a amount of the alleged indebtedness of the plaintiff to the defendant in the
period of one (1) year from its execution. The plaintiff’s contention that the increased amount of Php552,000.00.
unpaid obligation in the amount of Php100,000.00 has already been consolidated
to the jacked up amount of Php552,000.00 is tenable. Anent the claim of the xxx xxx xxx
defendant that the plaintiff never paid her, such alleged failure however could
not be attributed to the fault of the plaintiff considering that the latter had been There is no doubt that the plaintiff has suffered mental anguish and injury due
tendering her payments not only once but for several times and it was the to the wrongful act done by the defendant against the plaintiff. Hence, the latter
defendant who refused to accept the payments for various reasons. It is crystal is entitled to an award of moral damages inasmuch as the sufferings and injuries
clear that the defendant’s refusal to accept the payments which were tendered suffered by the plaintiff are the proximate result of the defendant’s wrongful act
by the plaintiff was nothing but a malicious scheme devised by the defendant to or omission (Art. 2217, Civil Code of the Philippines). However, the amount of
make the plaintiff’s obligation ballooned [sic] to Php552,000.00, which would moral damages suffered by the plaintiff in the amount of Php400,000.00 is
make it more difficult for the plaintiff to pay the increased amount of unconscionable which must have to be reduced by the court.
Php552,000.00 in lump sum. The actuations displayed by the defendant is
indeed a downright manifestation of bad faith on her part in her desire to own
WHEREFORE, premises considered, judgment is hereby rendered in favor of
the property belonging to herein plaintiff, which is in brazen violation of Article
the plaintiff and against the defendant by:
19 of the Civil Code, which provides among others that ‘Every person must in
the exercise of his right and in the performance of his duties act with justice,
give everyone his due and observe honesty and good faith.’ Be that as it may, the 1. Ordering the cancellation of the two (2) mortgages denominated as
plaintiff, despite her vigorous protestation to the jacked up amount of Mortgage Contract and the Sanglaan Ng Lupa At Bahay, thus releasing
Php552,000.00 had agreed to sign the second mortgage denominated as the plaintiff from her obligation relative thereto;
‘Sanglaan Ng Bahay At Lupa’ payable within a period of one (1) year.
Apparently, the defendant’s consuming aspiration to push the plaintiff against 2. Ordering the defendant, to stop collecting further monthly rentals on
the wall, had even accentuated when she demanded payment of the aforestated the five-door apartment belonging to the plaintiff from the tenants of the
sum from the herein plaintiff even before its maturity. latter; and,

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 15 AUGUST 2020 LAND TITLE AND DEEDS (ATTY. RAQUEL R. DUJUNGCO)

3. To pay moral damages in the amount of Php100,000.00, and, the Mortgage Contract and Sanglaan ng Lupa at Bahay, and (3) awarding moral
damages to Leonora Mariano.
4. To pay the costs of suit.
xxxx
SO ORDERED.11
Luz Nicolas maintains that the Absolute Sale of Real Property is valid on the
grounds: (1) that the same is Leonora Mariano’s free and voluntary act in
settlement of her mortgage liability of ₱552,000.00; (2) it pertains to the subject
Ruling of the Court of Appeals property for the valid consideration of ₱600,000.00, ₱552,000.00 of which
Leonora Mariano had already received by way of the mortgage debt; and (3) that
the Pagtanggap ng Kabuuang Halaga is conclusive evidence of Leonora
Nicolas filed an appeal before the CA, docketed as CA-G.R. CV No. 93532. In its
Mariano’s full receipt of the ₱600,000.00. She further avers that the RTC erred
assailed June 21, 2011 Decision, however, the CA ruled against Nicolas, stating
in declaring Leonora Mariano’s release from liability on the basis of the
thus:
purported special power of attorney, contending that the special power was
never formally offered in evidence and that assuming arguendo it exists, the
Aggrieved, Luz Nicolas interposed this appeal, raising the following assignment Absolute Sale of Real Property superseded the same, making her rental
of errors: collection one in the concept of an owner. She finally theorizes that the Absolute
Sale of Real Property novated the mortgage contracts because it converted
I Leonora Mariano’s mortgage obligation of ₱552,000.00 into partial consideration
for the subject property and that it is Leonora Mariano who is instead liable for
THE TRIAL COURT ERRED IN DECLARING THE DEED OF SALE AS NULL moral damages, having maliciously filed the fraudulent complaint against her
AND VOID FOR LACK OF CONSIDERATION; who entered into the foregoing contracts in good faith.

II For her part, Leonora Mariano, reiterates the grounds raised in her Motion to
Dismiss Notice to Appeal by Expunging and further avers the appeal is
THE TRIAL COURT ERRED IN RELEASING THE APPELLEE FROM HER procedurally infirm for non-compliance with Sections 5 and 6, Rule 41 of the
OBLIGATION TO THE APPELLANT AND CANCELING THE TWO Rules of Court. She maintains the propriety of the RTC’s Decision, stressing that
MORTGAGES; [and] being the trial court’s factual conclusion, the same must be accorded great
respect
III
x x x.
THE TRIAL COURT ERRED IN AWARDING THE APPELLEE MORAL
DAMAGES AND COST OF SUIT. The appeal is partly meritorious.

The pivotal issue in this appeal is whether x x x the RTC committed reversible xxxx
error in (1) declaring the Absolute Sale of Real Property invalid, (2) cancelling
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 15 AUGUST 2020 LAND TITLE AND DEEDS (ATTY. RAQUEL R. DUJUNGCO)

As regards the merits of this appeal, we are one with the RTC in declaring the Thus, having declared the Absolute Sale of Real Property and the two
Absolute Sale of Real Property invalid, but we cannot uphold that the invalidity mortgages, i.e. the Mortgage Contract and the Sanglaan ng Lupa at Bahay, void,
thereof due to lack of the essential requisites of consent, object, and all rights and obligations created thereunder are effectively obliterated and
consideration. Indeed, the Absolute Sale of Real Property contains all the rendered ineffective. Luz Nicolas’ supposed ownership of the subject property
foregoing requisites and nothing in the records proves, or at least suggests, that and her right to collect rentals on Leonora Mariano’s five-unit apartment, on the
the same was executed through fraud or under duress. Hence, by no stretch of one hand, and the latter’s mortgage debt of ₱552,000.00, on the other hand, are
the imagination can we sustain the RTC’s declaration of invalidity on said necessarily void, hence, without force and effect. A void contract is equivalent to
ground. nothing; it produces no civil effect. It does not create, modify, or extinguish a
juridical relation. Parties to a void agreement cannot expect the aid of the law.
We declare the Absolute Sale of Real Property is invalid on the ground that The courts leave them as they are, because they are deemed in pari delicto or in
Leonora Mariano, the supposed vendor of the subject property, is not the owner equal fault. It follows, therefore, that the award of moral damages must also be
thereof. For a sale to be valid, it is imperative that the vendor is the owner of vacated. The rule is no damages may be recovered on the basis of a void contract
the property sold. The records show that Leonora Mariano, to debunk Luz since being inexistent, it produces no juridical tie between the parties involved.
Nicolas’ claim of ownership of the subject property, openly admitted that she has
not fully paid the grant thereof to the NHA. Leonora Mariano, as mere grantee WHEREFORE, the appeal is PARTLY GRANTED. The assailed Decision dated
of the subject property who failed to fulfil the conditions of the grant, never August 26, 2009 of the RTC, Branch 121, Caloocan City, in Civil Case No. C-
acquired ownership thereof, hence, was without any right to dispose or alienate 20937 is AFFIRMED with MODIFICATION, deleting the award of moral
the same. "Nemo dat quod non habet." One cannot give what he does not own. damages of P100,000.00 to Leonora Mariano.
Hence, not being the owner of the subject property, Leonora Mariano could have
not transferred the ownership thereof to Luz Nicolas.12 SO ORDERED.14

Furthermore, the Absolute Sale of Real Property is a clear violation of the Nicolas moved to reconsider, but in its assailed March 1, 2012 Resolution, the
express proviso, prohibiting "any transfer or encumbrance of subject property CA held its ground. Hence, the present Petition.
within five (5)-years from the release of the mortgage." Said violation rendered
the Absolute Sale void ab initio, thus, the Republic’s retention of ownership over On May 8, 2012, Mariano filed a Motion for Execution Pending Appeal. 15 In a
the subject property.13 A buyer acquires no better title to the property sold than November 13, 2013 Resolution,16 this Court resolved to give due course to the
the seller had. Necessarily, Luz Nicolas cannot invoke the Absolute Sale as basis instant Petition.
of her right to collect rentals.
On November 5, 2014, Mariano filed a Motion for Urgent Execution Pendente
Leonora Mariano, being not the owner of the subject property, we declare that Lite, 17 which the Court noted in a February 2, 2015 Resolution.18
both the Mortgage Contract and the Sanglaan ng Lupa at Bahay she executed
are void ab initio. For a person to validly constitute a mortgage on real estate,
Issues
he must be the absolute owner of the property mortgaged as required by Article
2085 of the New Civil Code. Otherwise stated, the mortgagor must be the owner
of the property subject of the mortgage; otherwise, the mortgage is void. Nicolas submits that –

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I. THE DEED OF SALE OVER THE SUBJECT PROPERTY BETWEEN THE

PARTIES IS VALID AND BINDING.19
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
APPLYING THE RULINGS IN HEIRS OF SALVADOR HERMOSILLA VS. Arguments of Nicolas
REMOQUILLO (513 SCRA 409-410) AND MAGOYAG VS. MARUHOM (626
SCRA 247, 257 [2010]) WHICH ARE INAPPLICABLE TO THE CASE AT BAR Praying that the assailed CA dispositions be reversed and set aside, Nicolas
SINCE RESPONDENT LEONORA C. MARIANO ALIENATED THE SAID argues in her Petition that the CA seriously erred in affirming the cancellation
PROPERTY WHEN SHE WAS THE ABSOLUTE OWNER OF THE of the mortgage contracts and invalidating the parties’ deed of sale, since, as the
PROPERTY. registered owner of the subject property under Transfer Certificate of Title
(TCT) No. C-44249, Mariano had every right to mortgage and sell the same to
a) THE TRANSFER CERTIFICATE OF TITLE ISSUED IN FAVOR OF her; that while the National Housing Authority (NHA) withheld the original
RESPONDENT MARIANO IS AN EVIDENCE OF HER OWNERSHIP copy of TCT No. C-44249 and merely gave a photocopy thereof to Mariano
OVER THE SUBJECT PROPERTY. pending full payment of the installments, this does not detract from the fact that
Mariano is the owner of the subject property; that while there is a proviso in
b) ARTICLE 1477 OF THE NEW CIVIL CODE BOLSTERS TCT No. C-44249 to the effect that Mariano may not transfer or encumber the
RESPONDENT’S OWNERSHIP OVER THE SUBJECT PROPERTY subject property within five years from the date of release of the mortgage
WHICH NECESSARILY CAPACITATES HER TO ALIENATE THE without the NHA’s prior written consent and authority, this condition is null
SAID PROPERTY IN FAVOR OF PETITIONER. and void as it unduly restricts Mariano’s rights as owner of the subject property;
that Republic Act No. 6552 should instead apply in Mariano’s case, which
II. involves an installment sale of real property; and that consequently, the
mortgages and deed of sale executed by and between the parties should be
upheld for being in accordance with law, supported by adequate consideration,
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING
and in furtherance of the intentions of the parties thereto.
THAT RESPONDENT WAS NOT THE ABSOLUTE OWNER AT THE TIME
THE DEED OF ABSOLUTE SALE WAS EXECUTED.
Arguments of Mariano
III.
In her Comments and Opposition to the Petition for Review, 20 Mariano fully
agrees with the pronouncements of the CA, except that she believes that she
THE PROVISO IN THE TRANSFER CERTIFICATE OF TITLE THAT
must be awarded moral damages as prayed for and proved during trial. She
PROHIBITS APPELLEE LEONORA C. MARIANO TO TRANSFER OR
admits that even if TCT No. C-44249 was issued in her name, she is not the
ENCUMBER THE SUBJECT PROPERTY IS A STIPULATION CONTRARY
owner of the subject property since she has not fully paid the installments to the
TO LAW SINCE THE SAID PROVISO YIELDS TO R.A. 6552 (AN ACT TO
NHA; this being so, she concedes that she had no right to mortgage and sell the
PROVIDE PROTECTION TO BUYERS OF REAL ESTATE ON
same to Nicolas. She adds that TCT No. C-44249 constitutes mere evidence of
INSTALLMENT PAYMENTS [MACEDA LAW]).
title, and does not vest title itself, to the subject property. Thus, she prays for
affirmance with modification, in that she be awarded the amounts of
IV. ₱960,000.00 as reimbursement for Nicolas’s excess rental collections;

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₱500,000.00 additional actual damages; ₱1,000,000.00 moral damages; clean title, and if Nicolas exercised diligence, she would have discovered that
₱400,000.00 attorney’s fees; and costs of suit. Mariano was delinquent in her installment payments to the NHA, which in turn
would have generated the necessary conclusion that the property belonged to
Our Ruling the said government agency.

The Petition must be denied. For her part, Mariano cannot recover damages on account of her claimed losses
arising from her entering into contract with Nicolas.1âwphi1 Realizing that she
While title to TCT No. C-44249 is in the name of Mariano, she has not completed is not the owner of the subject property and knowing that she has not fully paid
her installment payments to NHA; this fact is not disputed, and as a matter of the price therefor, she is as guilty as Nicolas for knowingly mortgaging and
fact, Mariano admits it. Indeed, Mariano even goes so far as to concede, in her thereafter selling what is not hers. As correctly held by the CA, both parties
Comments and Opposition to the Petition, that she is not the owner of the subject herein are not in good faith; they are deemed in pari delicto or in equal fault,
property.21 Thus, if she never became the owner of the subject property, then she and for this, "[n]either one may expect positive relief from courts of justice in the
could not validly mortgage and sell the same to Nicolas. The principle nemo dat interpretation of their contract. The courts will leave them as they were at the
quod non habet certainly applies. time the case was filed."24 Besides, if Mariano’s prayer for damages were to be
considered at all, she should have directly assailed the CA’s pronouncement by
filing her own petition before this Court, which she failed to do
x x x By title, the law refers to ownership which is represented by that document.
Petitioner apparently confuses certificate with title. Placing a parcel of land
under the mantle of the Torrens system does not mean that ownership thereof With the foregoing pronouncement, the Court finds no need to tackle the other
can no longer be disputed. Ownership is different from a certificate of title. issues raised by the parties. They have become irrelevant in light of the view
The TCT is only the best proof of ownership of a piece of land. Besides, the taken of the case. Consequently, Mariano’s Motion for Execution Pending Appeal
certificate cannot always be considered as conclusive evidence of ownership. x x and Motion for Urgent Execution Pendente Lite require no further resolution.
x22 (Emphasis supplied)
WHEREFORE, the Petition is DENIED. The June 21, 2011 Decision and
Indeed, the Torrens system of land registration "merely confirms ownership and March 1, 2012 Resolution of the Court of Appeals in CA-G.R. CV No. 93532
does not create it. It cannot be used to divest lawful owners of their title for the are AFFIRMED.
purpose of transferring it to another one who has not acquired it by any of the
modes allowed or recognized by law."23 SO ORDERED.

Nicolas is charged with knowledge of the circumstances surrounding the subject MARIANO C. DEL CASTILLO
property. The original owner’s copy of TCT No. C-44249 is not in Mariano’s Associate Justice
possession, and the latter could only present a photocopy thereof to her. Before
one could part with his money as mortgagee or buyer of real property, it is only
natural to demand to be presented with the original owner’s copy of the
certificate of title covering the same. Secondly, Entry No. 98464/C-39393 on the
dorsal side of TCT No. C-44249 constitutes sufficient warning as to the subject
property’s condition at the time. In other words, TCT No. C-44249 was not a

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