G.R. No. 125272 - CANDIDO AMIL, VS. COURT OF APPEALS, AND

Ruling

WHEREFORE, in view of the foregoing and considering the fact that respondent failed to file an answer to the petition or failed to appear before this Court, in spite of the Courts efforts in exerting all possible means to give the respondent his day in Court in order for him to be duly heard before this Court in connection with this case, this Court hereby renders Judgment declaring petitioners Ernesto T. Gador and Nila A. Gador as the absolute owners of the Five Hundred (500) square meters of Lot No. 782-D-4 of the Subdivision Plan, Psd-07-03-006671, being a portion of Lot 782-D (LRC) Psd-120931, situated in the Barrio of Calindagan, City of Dumaguete, the same being covered by Transfer Certificate of Title No. 14021. The Register of Deeds of Dumaguete City is hereby ordered to make the corresponding annotation of the Consolidation of Ownership in the Vendee-A-Retro, Ernesto T. Gador and Nila A. Gador on the Transfer Certificate of Title No. 14021 upon payment of the prescribed fees thereof. Petitioner, through a new counsel, then filed a motion for new trial, which, however, was denied. He appealed to the Court of Appeals, which, in its decision dated January 29, 1996, affirmed the decision of the trial court. The Court of Appeals ruled: We agree with the trial courts denial of respondent-appellants motion for new trial. Respondent had been given full opportunity to answer and be heard. It is the duty of a party litigant to make inquiries to counsel on matters concerning his case (Elino Ong Reyes vs. CA, 189 SCRA 46; Florendo vs. Florendo, 27 SCRA 432). In fact, respondents alleged counsel never even entered his appearance. Under these circumstances, including those earlier adverted to, We rule that respondent did not exercise the ordinary prudence required of him by Rule 37, section 1(a) of the Rules of Court, and his negligence is not excusable to justify a new trial. We find likewise without merit defendant-appellants contentions that the Addendum dated December 12, 1987 clarifies or at least engenders doubt as to the real intent of the parties and that the contract is in reality a mortgage. The Addendum itself speaks of a capital gains tax to be paid by the spouses Ernesto and Nila Gador. It also states that Candido C. Amil hereby agrees and covenants (that) his right to redeem on repurchase the parcel of land x x x . Such stipulations are distinctive indicia of a sale, transfer or exchange of real property with right to repurchase. The two documents, read together and taken jointly, clearly evince a contract of sale with right to repurchase. It is therefore of no moment that the words mortgage and mortgagee were used in the Addendum. If words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. (Article 1370, New Civil Code; Sy vs. Court of Appeals, 131 SCRA 116). WHEREFORE, finding no error in the judgment appealed from, the same is hereby AFFIRMED in toto. With costs against