Askay vs. Cosolan, 46 Phil. 179

[No. 21943.
September 15, 1924]

ASKAY, plaintiff and appellant, vs. FERNANDO A. COSALAN, defendant and
appellee.
1. 1.STATUTES; ACTS OF THE PHILIPPINE LEGISLATURE, WHEN IN

FORCE; ADMINISTRATIVE CODE, SECTION 11 CONSTRUED; ACT No.
3107 CONSTRUED.—Section 11 of the Administrative Code provides: "A
statute passed by the Philippine Legislature shall, in the absence of special
provision, take effect at the beginning of the fifteenth day after the completion
of the publication of the statute in the Official Gazette, the date of issue being
excluded." Act No. 3107, amendatory of section 155 of the Administrative Code,
authorizing a Judge of First Instance to be detailed by the Secretary of Justice
to temporary duty, for a period which shall in no case exceed six months, in a
district or province other than his own, for the purpose of trying all kinds of
cases, excepting criminal and election cases, was made to take effect on its
approval, and the Act was approved on March 17, 1923. Held: That as there is a
special provision in Act No. 3107, it applies to the exclusion of the general
provision contained in the Administrative Code. Held, further: That as Act No.
3107 went into effect on March 17, 1923, and that as it was subsequent thereto,
on April 16, 1923, that Judge of First Instance Harvey was authorized to hold
court at Baguio beginning with May 2, 1923, Judge Harvey had jurisdiction to
try the case of Askay vs. Cosalan.
1. 2.SALES; FRAUD.—Fraud must be both alleged and proved. 3. ID. ; ID. ; GROSS
INADEQUACY OF CONSIDERATION.—Gross inadequacy of the consideration
naturally suggests fraud and is some evidence thereof, so that it may be
sufficient to show it when taken in connection with other circumstances, such as
ignorance or the fact that one of the parties has an advantage over the other.
180
1 PHILIPPINE REPORTS ANNOTATED

80
Askay vs. Cosalan
1. 4.ID.; ID.; ID.—The f act that the bargain was a hard .one, coupled with mere
inadequacy of price when both parties are in a position to form an independent
judgment concerning the transaction, is not a sufficient ground for the
cancellation of a contract.
1. 5.ID.; ID.; ID.—Held: That the plaintiff has not established by preponderance of
the evidence the allegations in his complaint to the effect that the sale of the Pet
Kel Mineral Claim -was accomplished through fraud and deceit on the part of
the defendant.
APPEAL from a judgment of the Court of First Instance of Benguet. Harvey, J.

The facts are stated in the opinion of the court.
A. de Guzman for appellant.
Camus & Delgado and Pio Duran for appellee.
MALCOLM, J.:
The plaintiff in this case is Askay, an illiterate Igorrotebetween 70 and 80 years
of age, residing in the municipal district of Tublay, Province of Benguet, who at
various times has been the owner of mining property. The defendant is Fernando
A. Cosalan, the nephew by marriage of Askay, and municipal president of
Tublay, who likewise has been interested along with his uncle in mining
enterprises.
About 1907, Askay obtained title to the Pet Kel Mineral Claim located in
Tublay, Benguet. On November 23, 1914, if we are to accept defendant's Exhibit
1, Askay sold this claim to Cosalan. Nine years later, in 1923, Askay instituted
action in the Court of First Instance of Benguet to have the sale of the Pet Kel
Mineral Claim declared null, to secure possession of the mineral claim, and to
obtain damages from the defendant in the amount of P10,500. Following the
presentation of various pleadings including the answer of the defendant, and
following trial before Judge of First Instance Harvey, judgment was rendered
181
VOL. 46, SEPTEMBER 15, 1924 181
Askay vs. Cosalan
dismissing the complaint and absolving the defendant from the same, with costs
against the plaintiff. On being informed of the judgment of the trial court,
plaintiff attacked it on two grounds: The first, jurisdictional, and the second,
formal. Both motions were denied and an appeal was perfected.
Two questions are suggested by the assignments of error. The first is whether
Judge George R. Harvey had jurisdiction to try the case. The second is whether
the plaintiff has established his cause of action by a preponderance of the
evidence.
I. On April 16, 1923, as appears from the Official Gazette, the Secretary of
Justice authorized and instructed the Honorable George R. Harvey, Judge of
First Instance of the Ninth Judicial District, to hold a special term of court in the
City of Baguio, Mountain Province, beginning May 2, 1923. (Administrative
Order No. 43, 21 Off. Gaz., p. 893.) Acting under the authority granted by the
order of the Secretary of Justice, Judge Harvey proceeded to hear the case
of Askay vs. Cosalan, without protest from anyone until after an adverse decision
for the plaintiff and until after Judge Harvey had left the district.
The point which plaintiff now presses is that Act No. 3107, amendatory of
section 155 of the Administrative Code, which authorizes a Judge of First
Instance to be detailed by the Secretary of Justice to temporary duty, for a period
which shall in no case exceed six months, in a district or province other than his
own, for the purpose of trying all kinds of cases, excepting criminal and election
cases, was not in force until fifteen days after the completion of the publication of
the statute in the Official Gazette, or not until August 3, 1923. Plaintiff relies on
section 11 of the Administrative Code, which in part reads: "A statute passed by
the Philippine Legislature shall, in the absence of special provision, take effect at
the beginning of the fifteenth day after the completion of the publica-
182
182 PHILIPPINE REPORTS ANNOTATED
Askay vs. Cosalan
tion of the statute in the Official Gazette, the date of issue being excluded."
Now turning to Act No. 3107, its final section provides that "This Act shall
take effect on its approval." The Act was approved on March 17, 1923. Obviously,
therefore, there being a special provision in Act No. 3107, it applies to the
exclusion of the general provision contained in the Administrative Code.
Recalling, therefore, that Act No. 3107 went into effect on March 17, 1923,
and that it was subsequent thereto, on April 16, 1923, that Judge Harvey was
authorized to hold court at Baguio, beginning with May 2, 1923, appellant's
argument along this line is found to be without persuasive merit. We pass to the
material issue which is one of fact.
II. Plaintiff contends that the sale of the Pet Kel Mineral Claim was
accomplished through fraud and deceit on the part of the defendant. Plaintiff
may be right but in our judgment he has failed to establish his claim. Fraud
must be both alleged and proved.
One fact exists in plaintiff's favor, and this is the age and ignorance of the
plaintiff who could be easily duped by the defendant, a man of greater
intelligence. Another fact is the inadequacy of the consideration for the transf er
which, according to the conveyance, consisted of P1 and other -valuable
consideration, and which, according to the oral testimony, in reality consisted of
P107 in cash, a bill fold, one sheet, one cow, and two carabaos. Gross inadequacy
naturally suggests fraud and is some evidence thereof, so that it may be
sufficient to show it when taken in connection with other circumstances, such as
ignorance or the fact that one of the parties has an advantage over the other. But
the fact that the bargain was a hard one, coupled with mere inadequacy of price
when both parties are in a position to form an independent judgment concerning
the transaction, is not a sufficient ground for the cancellation of a contract.
183
VOL. 46, SEPTEMBER 15, 1924 183
Askay vs. Cosalan
Against the plaintiff and in favor of the defendant, we have the document itself
executed in the presence of witnesses and before a notary public and filed with
the mining recorder. The notary public, Nicanor Sison, and one of. the attesting
witnesses, Apolonio Ramos, testified to the effect that in the presence of the
plaintiff and the defendant and of the notary public and the subscribing
witnesses, the deed of sale was interpreted to the plaintiff and that thereupon he
placed his thumb mark on the document. Two finger print experts, Dr. Charles
S. Banks and A. Simkus, have declared in depositions that the thumb mark on
Exhibit 1 is that of Askay. No less than four other witnesses testified that at
various times Askay had admitted to them that he had sold the Pet Kel Mine to
Fernando A. Cosalan.
Having in mind all of these circumstances, how can the plaintiff expect the
courts to nullify the deed of sale on mere suspicion? Having waited nine years
from the date when the deed was executed, nine years from the time Fernando
A. Cosalan started developing the mine, nine years from the time Askay himself
had been deprived of the possession of the mine, and nine years permitting of a
third party to obtain a contract of lease from Cosalan, how can this court
overlook plaintiff's silent acquiescence in the legal rights of the defendant? On
the facts of record, the trial judge could have done nothing less than dismiss the
action.
We conclude, therefore, that Judge Harvey had jurisdiction to try this case,
that his findings of fact are in accordance with the evidence, that no prejudicial
error was committed in the trial, and that the complaint was properly dismissed.
As a result, judgment is affirmed with costs against the appellant. So ordered.
Johnson, Street, Avanceña, Villamor, Ostrand, and Romualdez, JJ., concur.
Judgment affirmed.

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[No. 21943.

September 15, 1924]

1. 1.STATUTES; ACTS OF THE PHILIPPINE LEGISLATURE, WHEN IN

1 PHILIPPINE REPORTS ANNOTATED

APPEAL from a judgment of the Court of First Instance of Benguet. Harvey, J.

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