This  refers to seven appeals taken by  opponents Bernardo Samson with respect to  lot No. 1; the municipality of San  Luis,  Province  of Pampanga,  with respect  to  lot No. 35; Laureana Carlos with  respect to lots Nos. 54,  63, and 16,  the last being a part of lot No. 55; Juliana Franco with  respect to lot No. 53; Teodulo  Franco with respect to lots Nos.  17 and 23; Severina Franco  with respect to lot No.  50; and Felipe Carlos  with respect to  lot No.  58, from the judgment of the Court of First Instance of Pampanga,  rendered  in case  No. 713, G. L. R. O.  Rec.  No. 27683, denying and dismissing their respective oppositions, and  adjudicating  and decreeing  the  registration of the lots without the  oppositions described in  the  application, in favor of the applicant Toribio Laxamana and  his wife Leoncla Conui, with the exception of the portion of lot No. 36 occupied by opponent Cunanan, and lot No.  60, With regard to which the opposition  was sustained. vIn  support of  his  appeal, appellant Bernardo Samson assigns  the following alleged errors as committed by the trial court in its judgment, to wit:

1. The  lower  court erred  in not concluding that the only interest acquired by applicant in lot No. 1  in question by virtue of his purchase thereof at auction was  only the interest  therein  still possessed by the  judgment debtor Engracio Catacutan,  which was  only the  right to repurchase, inasmuch as before and prior to the sale at auction Engracio Catacutan already sold  such lot to Josef a Palma reserving to himself only such right to repurchase.
   
2. The lower court erred in not concluding that the levy and sale at auction of the property in question to applicant does not take precedence over an unrecorded deed of conveyance of the same property made by the judgment debtor Engracio Catacutan prior and before the levy and sale at auction.
   
3. The lower court erred in not concluding to be valid and binding the  deed  of  pacto  de retro sale,  Exhibit 1-Samson, and in  declaring it to be a mere instrument of credit with security.
   
4. The lower court erred in not concluding that  anything decided in the case entitled  Engracio Catacutan vs. Toribio Lacsamana and  Francisco Pamintuan,  civil  case No. 3386  of the lower  court, with reference  to the  land in question cannot in anyway affect or prejudice  oppositor Bernardo  Samson  and Josefa Palma who  were not made parties therein.
   
5. The lower court erred in denying the motion of oppositor Bernardo Samson for new trial, it  appearing that when rebuttal  evidence was presented by  applicant relative to lot No. 1 in question, the oppositor  Bernardo Samson and his attorney were  not present therein and given an  opportunity  to cross-examine the witness and timely object to the evidence presented on rebuttal.
   
6. The lower court erred in rendering an adverse deci- sion against oppositor Bernardo Samson."

The  municipality of San  Luis, Pampanga, in  turn, assigns the following  alleged errors as committed by  the trial court in its judgment,  to wit:

1. The lower court erred in  holding that it  is not lot No. 35, but the old  road, that runs alongside the Rio Grande in Pampanga.
   
2. The lower court erred in decreeing the adjudication and registration of lot No.  35 in  favor of the  applicarit-appellee.
   
3. The lower court erred in  overruling  the opposition of the municipality of San Luis.
   
4. Finally the lower court erred in denying the motion for a new trial filed by the opponent-appellant municipality of San Luis."

On the other hand, the appellants Laureana Carlos, Juliana Franco,  Teodulo  V. Franco, Severina Franco,  and Felipe Carlos  jointly assign nine alleged errors  as committed by the trial court in its judgment.

Toribio Laxamana, the appellee,  questions this court's jurisdiction to review the evidence upon the appeal taken by  the opponents  and  appellants last mentioned  through Attorney Teodulo V. Franco, in view of the fact that, they announced their intention to  appeal  and then filed a bill of exceptions without waiting for the trial  court to pass upon the motion for a new trial filed by them on April 17, 1931, upon the ground  that the  evidence does not justify the judgment, which is  contrary to law, the Court of First Instance of Pampanga having  approved the said bill of exceptions on April 30, 1931.

The question raised by the appellee, dealing  as it does with a matter of procedure,  must first be resolved.

In Conspecto vs. Fruto (31  Phil., 144), citing with approval in the case of Heirs of Advincula vs. Imperial  (G. R. Nos. 34087 and 34088, promulgated on February 24, 1932),¹ this court laid down the following doctrine:

"A motion for a new trial was made in the lower court by  the appellants.  That motion was never  decided.  Apparently  it was abandoned by the appellants for the reason that before it  was  decided  they presented their bill of exceptions.  They evidently  concluded to rely upon the facts stated in the pleadings and not denied and the decision of the lower court  and the law applicable  thereto. The presentation of a bill of exceptions pending the decision of a motion for a new trial  is  an  abandonment of  said motion.  The  defendants  denied each  and every  fact alleged in the complaint. In the absence, therefore, of a motion  for a new trial, we are limited to the facts stated in the decision.  They  are as follows:"

*       *       *       *       *       *       *       *      *

See likewise Dimaliwat vs. Dimaliwat (55 Phil., 673).

In the case at bar, counsel for opponents-appellants Laureana Carlos, Juliana Franco, Teodulo V. Franco, Severina Franco,  and Felipe Carlos,  received  a copy  of the trial court's decision in this:  case on March 31, 1931, and on the 17th of April took exception thereto filing  a motion for a new hearing on the ground  that the evidence is not sufficient to justify the judgment,  which is contrary to  law, notifying counsel for Toribio Laxamana, the applicant-appellee, that the hearing of that motion  would be set  for April 23, 1931.  Inasmuch as the trial court did not set that motion for hearing upon the appointed date, April 23, 1931, counsel for  the  opponents-appellants,  fearing  that the  thirty-day  period  provided by law might elapse  for perfecting the  appeal through bill of exceptions in registration proceedings under the Torrens system, did not wait for the ruling  upon the motion for a new trial, but filed a notice of appeal together with  a bill  of exceptions  on April 27, 1931, notifying the adverse party of the hearing for its approval.  On  April 30, 1931, the  court  approved and  admitted the bill of exceptions.

While the nature of  the action  is different, the facts in the  case of Conspecto  vs. Fruto,  supra, are identical to those in the present case.   Although the cases cited  are ordinary civil actions and the case at bar is one of registration, the rule  with  reference to the order  of filing  the motion  for a new  hearing, exception,  appeal, and bill of exceptions is the same.   (Sec. 14, Act No. 496, as amended by section 4, Act No. 1108;  Director of Lands vs. Court of First Instance of Tarlac, 51  Phil.,  805.)

According to the  rulings cited above, this court has  no jurisdiction to review in this instance the questions of fact raised by the appellants Laureana  Carlos, Juliana Franco, Severina Franco, and Felipe Carlos, in their brief; it must accept the trial court's findings upon the various lots affected by the opposition, and determine merely if the conclusions  of law' derived  from the findings  of fact are in keeping with the statute.

We have examined those findings of fact and see no reason for  interfering  with them;  the legal  conclusions are in keeping with  them and we therefore affirm the  judgment appealed  from  with respect to lots Nos. 54,  63, 16, 55, 53, 50, and 58.

With respect to lots Nos.  17 and 23, to  which Teodulo V. Franco's appeal refers, and which he claims are included in parcel F, described in his Torrens title No. 159 (Exhibit I-T Franco), the trial court adjudicated them to the applicant  Toribio Laxamana subject  to Teodulo V.  Franco's right to  prove  his contention.  The chief surveyor of the General Land Registration Office, in pursuance of an  order from the Court of First Instance of Pampanga dated December 16, 1930, submitted the following report:

"Complying with the order of this court dated December 16, 1930, the undersigned has the honor  to report: that this office cannot, with the plans alone in view, determine with exactness if lots 17 and 23 of plan Psu-45996-Amd.-2, filed in proceeding G. L.  R. O. Rec.  No. 27683, are included in(the plan prepared by Surveyor Ceferino Cacnio on  April 11, 1907, attached to proceeding G. L. R. O. Re».  No.  5909, because  the latter is defective and was prepared before Act No.  1875, as amended, went into effect.

"Wherefore,  and in order to settle the conflict indicated by the petitioner, we respectfully  recommend that the Honorable Court order the Bureau of Lands to conduct an investigation on  the land, at the  expense of the  applicants and opponents, for the purpose of determining what relation exists between  the  plan  Psu-45996-Amd.-2, and the old unapproved plan, submitting  a sketch of the result of such  investigation.

"Manila, April 9, 1931."

In view  of the foregoing report filed by  the  chief surveyor of the General Land Registration Office, it is ordered that the record be remanded to the Court of  First Instance of Pampanga with respect to lots Nos. 17 and 23, and that proceedings he  had in accordance with the suggestion contained in said report; and if lots Nos. 17 and 23 are found to be included in Teodulo V. Franco's Torrens title No. 159, the latter's opposition shall be sustained with respect  to those lots.

With  regard  to Bernardo Samson's appeal upon lot No. 1, the following facts were proved without question at the trial:

Engracio Catacutan,  the  original owner  of  lot No.  1, sold it with the right of repurchase within two years,  to Josefa  Palma for f*2,50Q, as evidenced by a public  unrecorded instrument dated May 6, 1921 (Exhibit 1-Samson). In accordance with the instrument, the vendor remained in possession of the lot as a lessee during the redemptionary period, paying  the vendee a yearly rental of P500.

By an unrecorded instrument dated December 29,  1921, Engracio Catacutan sold the same land to Bernardo Samson on condition that the vendor would procure its registration  under  the Torrens system  and the  vendee would pay Josefa Palma what Engracio Catacutan owed her.

On October 27, 1922, at the public auction held in pursuance  of a writ of execution issued by the Court of First Instance of Pampanga in civil cases Nos. 2017,  2042, and 2183, entitled  Toribio  Laxamana vs. Engracio Catacutan et al. (Exhibit  B), that lot was sold to Toribio Laxamana for P4,154,42.  As  the  defendants  in  these  three  cases failed to exercise their  right of  redemption within the statutory period of one year, the provincial sheriff of Pampanga executed the deed of absolute sale to  Toribio Laxamana on October 30, 1923, and it was  recorded that same day in  the  registry of deeds of the province (Exhibit B). Toribio  Laxamana took possession  of the lot in December, 1923, and from that time has exclusively collected the products thereof to the present time.  At the time of the  auction sale, the heirs of Melecio Catacutan (among  whom is Engracio Catacutan)  were in  possession.

When the period for redemption specified in the instrument Exhibit  1-Samson had  elapsed without the vendor Engracio Catacutan having made use of his right of repurchase, and  the ownership having  been consolidated in the vendee Josefa Palma, she  sold lot No. 1 on January 25, 1924 to Bernardo Samson, opponent  and appellant herein, for P3,120 as evidenced by the unrecorded public instrument, Exhibit 2-Samson.

The first question to decide with reference to lot No.  1 is  whether the contract  between  Engracio Catacutan and Josefa Palma  is a sale with the right of repurchase  or  a mortgage.

The  trial court  held  that it was  a mortgage, because, firstly, neither Josefa Palma  nor Bernardo Samson  took possession  of  the land in  litigation;  secondly, neither of them intervened when Engracio Catacutan filed suit against Toribio Laxamana to set aside the auction sale; and third- ly, Bernardo Samson purchased the land of Engracio Catacutan, binding himself to pay Josefa Palma what Engracio Catacutan owed her.

By its form, terms, and conditions, the instrument Exhibit 1-Samson, evidencing the contract between Engracio Catacutan and Josefa Palma,  is a sale with the right of repurchase.  If Engracio Catacutan  remained in possession of  the land,  it  was by virtue of a contract of lease contained in the same instrument, between vendor and  vendee, whereby the former was to remain in possession of the land sold during the period for repurchase, paying a yearly rental of P500. The lower court was  therefore  in error in concluding  that  the vendee did not  take possession of the property sold, inasmuch as the possession of a lessee is that of the lessor.  (Bautista vs. Sioson, 39 Phil.,  615; Lichauco vs. Berenguer,  39 Phil., 643.)

With regard to the second ground, Josefa Palma had no reason for intervening in the  complaint filed by Engracio Catacutan against Toribio Laxamana for setting aside the judicial sale, because as a vendee in a sale with the right of repurchase, her right was protected, inasmuch as Tori- bio Laxamana could not, in the judicial sale mentioned, have  acquired  anything more  than  Engracio Catacutan's right of repurchase.   (Lanci vs. Yangco, 52 Phil., 563.) Neither was there any  necessity for Bernardo  Samson to intervene because the  sale  made to  him by Engracio Catacutan was  conditioned  upon the  registration of  the land.

With regard to the third ground, the very fact that Engracio Catacutan bound himself to cause the registration of the land according to the  Torrens system, and Bernardo Samson to  pay Josefa  Palma  the  amount  he owed her, shows that  what was sold to Bernardo Samson was only Catacutan's  right of repurchase.

The fact that neither Josefa Palma  nor Bernardo Samson filed a third party claim with the sheriff who attached the  land for  judicial sale did  not prejudice them, for section 451 of the Code of  Civil  Procedure reserves to them  the right  to bring the proper action to enforce their rights.

Besides, it could not have  been the intention of the parties to enter into a mortgage  contract  to secure  a loan, as in  that case all the formalities required by law for its validity should have been complied with, such as the  registration in the registry, which has not been done.

Therefore, the contract between Engracio Catacutan and Josefa Palma,  evidenced by the deed Exhibit 1-Samson, is a sale with the right of  repurchase, and not simply a mortgage.

Having arrived at the conclusion that the contract Exhibit  1-Samson, between Engracio  Catacutan and Josefa Palma, is a  sale with the right  of repurchase, the question arises as to who has a better  right to  lot  No. 1, Josefa Palma, or the applicant Toribio Laxamana who has purchased at an auction sale Engracio Catacutan's rights and interests in said lot, by virtue of a writ of execution.

In Lanci vs. Yangco, supra, the court laid down the following doctrine:

"1. EXECUTIONS;  SALE  UNDER EXECUTION;  INTEREST ACQUIRED BY PURCHASER; EFFECT OF REGISTRATION OF TITLE. The rule that the purchaser at an execution sale only acquires the identical  interest in  the property sold  which has been possessed by the judgment debtor applies to  property registered under the Torrens  system as well   as to unregistered  property; and the  circumstance  that at the time of the levy of the execution, and the consequent sale of the property,  the certificate  shows the debtor in the execution to be the unqualified owner of the property, does not interfere with the application of this rule.  It results that, where the judgment debtor by lawful contract  alienates the property before  it is levied upon, such conveyance will be valid  as  against the purchaser at the  execution sale.  It is true that  in section 50 of Act  No. 496 it  is declared that  the inscription of the conveyance is the act that gives validity to  the transfer or creates  a lien upon the land; but this  is no obstacle to the giving of due  effect to anterior obligations, good as between the parties, and their successors,  other  than  bona  fide  purchasers for value."

See also Cabuhat vs. Ansay and Reodica (42 Phil., 170).

There is not and could not be any question that the deed of sale  with the  right of repurchase, Exhibit 1-Samson, executed by Engracio Catacutan in favor of Josefa Palma is valid between them, and conveyed to the latter the ownership of lot No. 1, subject only to a resolutory condition, that is, the vendor's  right to repurchase the  land within two years.  As the  sale took place on May 6, 1921, and as Engracio Catacutan had not repurchased the property when on October 27, 1922, his rights, interests,  and participation in it were  sold at a public auction, the only  right, interest, and participation he had was that of repurchase, and according to  the doctrine  cited above, for being the successful bidder at said auction sale,  Toribio Laxamana acquired only the right  of  repurchase  of  Ehgracio Catacutan.

It has been contended in the  course of this  discussion that Toribio  Laxamana is a third party, and a purchaser in good faith, and that under Act No. 2837, as the deed of sale with the right of repurchase executed by Engracio Catacutan in favor of Josefa Palma was not registered, as  was the  certificate of sale executed by the sheriff in his favor the former cannot affect him.

In  Williams vs.  Sufier (49 Phil., 534), the court laid down the following doctrine:

1. REGISTER OF DEEDS; ACT NO. 2837; REGISTRATION OP SHERIFF'S DEED. The provisions of Act No.  2837, amending section 194 of the Administrative Code, are applicable exclusively to instruments resulting from the agreement of the parties; they have no application to the deed of a sheriff conveying to the  purchaser unregistered land that has been sold by the sheriff  under execution."
   
   The fact, then, that the certificate of sale issued by the sheriff to Toribio Laxamana was recorded in the registry of deeds, does not give him a better right  to the property sold than that  possessed by Josefa Palma, the  vendee in the sale with the right of repurchase.
   
   As to whether Toribio Laxamana is a third party or not, in Boncan vs. Smith, Bell & Co., and Peterson (9 Phil., 109), this court laid down the following doctrine:
   
   
2. ATTACHMENT ; UNRECORDED DEED. The levy  of an execution against a judgment debtor upon  realty standing in his name does not take precedence over an unrecorded deed to the same property made by the judgment debtor prior to the levy.  Creditors in  such cases are not third parties within the meaning of article 389 of the Mortgage Law.  (Fabian vs. Smith, Bell &  Co., 8 Phil., 496.)"

Being a purchaser in good faith does not give the applicant-appellee a better right either, because having made the purchase at a public auction in an ordinary execution, not only is he not a third party, but he acquires no more than  the  rights  of the judgment debtor to the property sold at the time of the sale, and it was his duty to ascertain what those rights  were,  in order to safeguard his  own interests.   Upon this point, the court has repeatedly  held that the doctrine of caveat emptor applies to judicial sales. (Pabico vs. Ong Pauco, 43 Phil., 572; 23 Corpus Juris, 746; Lim Liin  Uan vs. Laag and Laag, 51  Phil., 930.)

With regard to lot No. 35, in which the appellant municipality  of San Luis, Pampanga is the opponent the  sole question to decide is whether that lot is the road of the barrio of San  Juan and  therefore belongs to  the  municipality.

The applicant sought to establish the following facts:

The real municipal road  passing through the barrio of San Juan, municipality of San Luis, Province of Pampanga, runs along the east bank of the Rio Grande of Pampanga, or the southwest of lot No. 1, as shown on the sketch  Exhibit C.  That road dates back to pre-revolutionary times. Alongside there are young  and old santol, kapok, banana and mango trees.  There  are  also houses  built by their owners  fronting that road in order that the religious processions passing along it during Spanish times might better be seen.  The owners of these houses always spoke  of that road as a boundary, some on the south, and others on the west, and in 1906 Melecio Catacutan,  describing his lot in tax declaration No. 14178 (Exhibit Z),  mentioned as the western boundary, the "barrio  road".  In the year. 1924, the neighbors and relatives of Engracio Catacutan, obeying his orders, closed the aforementioned road by  fencing it in,  and constructing  another road on  the east of those houses.   Councilor  Pedro  Larin and Lieutenant  Simeon Mangalino of the municipality, filed a  written request (Exhibit Y) with the municipal council of San Luis on March 17, 1924, asking that an investigation be made of that act and that proper action be taken against those responsible for it.  The public road was thrown open once more, but Bngracio Catacutan again ordered it to  be closed.   There are trees on all sides of lot No. 35, and  not merely  alongside as alleged by the opponent municipality of San Luis, and there is no such road in it, although there is one leading to the river, situated on  the northeast of Crisanta Catacutan's land, described in tax No. 14193 (Exhibit 1)  which. land also is on the  northeast of that of Melecio Catacu- tan's, tax No. 14178 (Exhibit Z).

Opponent municipality  of San  Luis, on the other hand, sought to prove through its witnesses, the following  facts:

The country road  is situated  on the west of Melecio Catacutan's land, and existed long before the revolution.  All along both sides of it are santol, kapok,  and anonas trees between ten and fifteen years  old,  as well  as  mango  and camanchile trees, and once upon a time there  were houses facing  each  other, which, were removed by  the Spanish forces towards the river during the revolution, where they stand at present, facing the river and the new road  which was built through private property,  which is used  when the old road becomes impassable owing to the mud during the wet season.  The new road, has  been  out  of use  and closed for the past three or four  years, but the old  one is still in  use.  The  old road runs as far  as  the barrios of San Nicolas and Santa Monica  going  southwards, crossing the Matique Creek,  turning  towards the river and then alongside the said  river.

It has therefore been admitted by both  applicant Toribio Laxamana and  opponent  Municipality of  San Luis, that there are two  roads, to wit: that running alongside  the Pampanga Rio Grande, and lot No. 35. Both the applicant and the opponent  agree that at present  the houses  stand on the edge  of the road alongside the aforementioned river facing it; but the latter alleges and maintains that those houses used to be  on both sides of lot No. 35, which was the old  country road, and that  only during the revolution where they removed.  In order to ascertain  which of the two roads  was the real country road of the barrio of San Juan, Municipality of San Luis, we must refer to the evidence adduced by both parties at the trial.  There is contradictory  evidence, and the trial  court, that not only saw the witnesses testify and had an opportunity  of observing their conduct while  testifying, but also made an  ocular inspection  of the premises, gave  more credit to the testimony of the applicant and of his witnesses than to those of the opponent municipality of San Luis.  Furthermore, the letter (Exhibit Y) written by Pedro Larin, municipal councilor of San Luis, asking for the investigation of the closing of the road alongside the river and the punishment of the responsible parties, shows that in his judgment as well as in that of the municipal lieutenant, Simeon Mangalino, who also signed that letter,  that was the real  country road of the barrio of San Juan.

Finding  no error in the decision appealed from with reference to lot No. 35, it must be affirmed with  costs against the opponent-appellant, the  Municipality of San Luis.

In view of the foregoing,  we are of opinion  and so hold: (1)  That the rules laid  down in  the Code  of Civil  Procedure, and  construed  by this court, with reference  to  the filing of motions and taking of  exception for perfecting appeals in  ordinary cases are applicable to the perfecting of appeals in registration cases;  (2)  that the filing of notice of intent to  appeal and  of  the bill of exceptions, while a motion for a new hearing on the ground of insufficiency of evidence to justify the  decision is  pending,  without first entering an exception in case the ruling be against it, is an abandonment of the motion for  a new trial,  and a waiver of the right  to have the evidence reviewed;  (3) that  the purchaser at a public auction of the rights, interests, and participation of a judgment debtor in the property which the latter  had validly sold  with the right of repurchase, retaining possession under  a contract of lease during  the period of repurchase, acquires only the judgment debtor's right of repurchase, and the fact that the vendee in a sale with the right of repurchase did not object to the auction sale  or file  a third party  claim does  not safeguard said purchaser at the auction sale from the claim of the vendee in a sale with the right of repurchase  even if the sheriff's deed be registered in the registry  of deeds, since the provisions of section 194 of the Revised Administrative Code, as amended  by Act  No. 2837, do not apply to judicial sales (Williams vs. Sufier, 49 Phil., 534), and because it  was his duty, before bidding at the auction sale, to  ascertain the real rights of the judgment debtor, which are to be sold (23  Corpus Juris, 746; Sarmiento vs. Villamor, 13 Phil., 112; Pabico  vs. Ong Pauco, 43 Phil., 572); and (4) that the fact  that the judgment debtor is in possession of the land upon which  he holds rights which  are  to "be sold at public auction, and that the purchaser  did not know that a third party had acquired  ownership thereof,  does not protect the purchaser, because he is  not considered a third party, and the rule of caveat emptor is applicable to him.   (Boncan vs. Smith, Bell  & Co., and Peterson, 9 Phil., 109.)

Wherefore, the judgment appealed from is reversed with respect to lot No. 1, which is adjudicated to Bernardo Samson,  in whose name its registration is decreed, with costs against the  appellee;  let the  record be remanded with respect to lots Nos. 17 and  23 for  an investigation by the Bureau of Lands at the  expense of the parties interested, to determine whether they are included in Torrens title No. 159 of Teodulo V. Franco, sustaining the latter's opposition in the affirmative, and affirming  the  judgment appealed from, in the negative, without the proviso contained therein, without special pronouncement as to costs; and in all other respects the judgment appealed from is affirmed, with costs against the unsuccessful appellants.  So ordered.

Street, Malcolm,  Villamor, Abad Santos, Hull, Vickers, Imperial, and Butte, JJ., concur.

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¹56 Phil., 837.