Juan Luciano and his  wife,  Arsenia de Leon,  are appealing from the order of the Court of First Instance  of Bulacan dated  November 21,  1953, civil case  No.  266, ordering the provincial sheriff to carry  out the  writ  of execution  previously   issued, more  specifically,  to  place plaintiff Agapito  Cruz Correa in  possession of a parcel of land included in the decision and  awarded to him,  covered by  tax  declaration No. 3246 of Angat, Bulacan,  actually occupied by the appellants.

For a better comprehension of  the issues involved in the present appeal, it is advisable to make a detailed statement of the facts, as well as the dates of the successive occurrences of  events  affecting the case.        .

On October 3,  1943, plaintiff Cruz, filed an  action, civil case No.  148 in the Court of First Instance of Bulacan, against defendant Hermogenes Pascual, to recover possession and title of several  parcels of land including that covered  by tax declaration No.  3246 already mentioned. At  the same time, he caused a notice of lis pendens to be  recorded in the office of the Register of Deeds of Bulacan. On September 25,  1947, the trial  court issued an order dismissing the complaint, for failure to prosecute because neither plaintiff nor his counsel appeared at the hearing. On April 14, 1948, plaintiff Cruz filed a motion praying that the order of dismissal be set aside.  Said motion was denied by order dated May 3, 1948.

On May  15, 1948,  the  same  plaintiff Cruz,  filed the present case, civil case No. 266, against the same  defendant, Hermogenes Pascual,  for the  recovery of possession and title of the same parcels of land involved in civil case No. 148.  Acting upon the motion to dismiss filed by Pascual on the  ground that the action  was barred by the dismissal of civil case No. 148, which dismissal had the effect of an adjudication upon the merits equivalent to  a judgment. The trial court denied the motion to dismiss  and ordered defendant to answer the complaint.  The reason for the denial was that the trial court  found that the reason why plaintiff and his counsel in civil case No. 148 failed to appear at the trial was their failure to receive the notice of the  hearing because said notice was erroneously addressed by the Deputy Clerk of Court.  Defendant Pascual filed  his answer with  affirmative  defenses  and counter-claim.  However,  on April 30,  1951, plaintiff Cruz  and defendant Pascual filed with the trial court a written agreement with a petition that  the agreement be approved by the court and that decision be rendered in accordance with the terms of the same.  On the same date,  the trial court rendered a decision approving the agreement and ordering the parties to comply strictly with the terms of the agreement.

On June  16, 1952, plaintiff Cruz filed a petition for  a writ of execution to carry out  the terms of the decision based on the  agreement of the parties among which was the transfer to the plaintiff by the defendant of the ownership and possession of two parcels of land, including that covered by  tax declaration No.  3246.  The petition  was granted and a writ of execution was issued.  On October 20, 1952, plaintiff filed an ex parte petition for an  alias writ of execution on the  ground  that the original  writ could not be served by the sheriff  because defendant Pascual had died  and because the  judicial administrator of Pascual's estate had not yet qualified.  This petition was also granted by the court.  Acting upon the alias writ of execution,.the sheriff sent a notice  dated December 5, 1952 to Juan Luciano arid his wife, Arsenia, whom he found occupying the parcel of land covered by tax declaration No. 3246, advising them that on December 18, 1952, he would place the plaintiff in  possession  of the land, at the same time asking them  (Luciano and Arsenia) if they had any objection.  Receiving no objection, on December 18, 1952, the sheriff went to the property in question in the company of the plaintiff and two witnesses conferred with Luciano in the house built on  the land and informed him that the plaintiff will be placed in the possession of the land. Luciano verbally asked for time to talk to the  plaintiff for an amicable settlement upon the arrival of his wife, Arsenia, whom he expected two days later, but the "Deputy Sheriff, Mr. Concepcion, orally placed the plaintiff  in the supposed possession  of the properties."   Because Luciano  and his wife continued occupying the land, plaintiff on July 3, 1953, filed a "Motion for a  true  delivery of Possession" and the court by order of July 15, 1953, ordered the sheriff to comply specifically with the writ of execution by "placing herein plaintiff in the actual possession of the property described  in  land tax  declaration  No.  3246  of Angat, Bulacan."   The sheriff in  his return of service, informed the court that on August  18, 1953, he received a copy of the motion of Luciano and Arsenia dated August 18, 1953, filed with the court praying that the sheriff be  directed to abstain from  executing the judgment,  and he held the execution in abeyance pending the resolution of the Court on the motion.

In  the meantime,  Luciano and his  wife,  Arsenia, on August 15, 1953,  filed a motion asking  the trial  court to direct the sheriff to abstain from ejecting them from the land on the ground that they Were not parties litigant in the case and consequently, they could not be  bound  by the judgment rendered by the court.  Acting  upon this motion and over the opposition of the plaintiff, the trial court by order of August 27, 1953, held that the decision of the case bound only defendant Pascual to deliver and transfer to plaintiff the lands included in the  decision particularly the land in question, and that to  order  any other person such as Luciano and his wife to vacate and deliver the land in question to the plaintiff would amount to an amendment of the decision  after  it  had become final  and there was nothing in the  record to  show that the movants spouses were  privies of defendant  Pascual so as to be included in  the decision.  As a result, the trial  court ordered the sheriff to abstain from  ejecting the spouses from the land in question.   Acting upon a motion for reconsideration of that order filed by  plaintiff and over the opposition of the spouses, the trial court in an order dated November 21, 1953, subject matter of the present appeal reconsidered the  previous order and  directed the  sheriff to effect the execution of the judgment against Juan Luciano and his wife, Arsenia, with reference to the land in question.  In said order, the  court found that the spouses were privies of defendant Pascual; that from the uncontradieted documentary evidence  presented in support of  the plaintiff's motion,for reconsideration, the court found that the land was acquired by the spouses from defendant Pascual in June 15,  1946, while the land was the subject of a litigation between herein  plaintiff and herein defendant and after the notice of lis pendens of said action was inscribed in the office of the Register of Deeds of Bulacan province on October 11,  1943; * * * that "although the said civil case No. 148 was dismissed by the court for failure of the plaintiff to appear on the day of trial, yet, the action as between the game parties and for the same cause was revived with the  presentation of the  complaint  in the present case on May  15, 1948 without previous notice of  lis pendens having been  cancelled.  The spouses Juan  Luciano and  Arsenia de Leon are therefore considered transferees pendente lite and are bound by the judgment against their predeccessor."

A motion for reconsideration filed by Luciano and his wife  having been denied, they  appealed, to the  Court of Appeals.   Said appellate court after a study of the  appeal found that only questions of law  were involved  and so certified the case to us  in  its resolution dated March 12, 1955.

The assignment of errors made by  appellants in their brief which we reproduce below will give an idea  of the legal  points raised  in the  appeal. 

I

 The court a quo erred in amending, supplementing, or otherwise setting aside its  judgment which has already become  final, irrevocable and executory.

II

The court, likewise,  erred in approving the  agreement  entered into by and between the plaintiff and the defendant, whereby the latter disposed of the  land in  question in favor of the plaintiff, despite a previous sale  of the  same land  by the defendant to the herein  appellants.

III

The court also  erred  in holding the appellants Juan Luciano and Arsenia de Leon,  as privies" to the defendants.

IV

The court, likewise,  erred in ordering  the ejectment of herein appellants from the land in question, and  in dispossessing them of the ownership and possession  thereof without  being  given  their "day in court."

After the trial court had  dismissed the  complaint  in civil case  No.  148 for  failure  of plaintiff to  appear  at the hearing, comes the question of the validity of the case being  revived  in  civil case No.  266 which involves the same parties,   the same issues, and the  same  cause  of action.   Ordinarily, the dismissal of a civil suit for failure of plaintiff to appear at the hearing is considered a judgment on the merits  and will bar another action between the same parties and on the same cause  of action.   The trial  court, however, found as a  fact that the  failure of the plaintiff to appear at the hearing  was1 not due to his fault but rather to the failure of his lawyer to receive the copy of the notice of hearing because it was misaddressed by the  deputy clerk of court according to the latter's admission.  In that case,  the order of dismissal may properly be set aside and the case either reinstated or a similar action may be filed (Moran's Comments on the Rules of Court, Vol. I, page 634, commenting on Rule 30, section 3,  and citing the cases of Ong vs.  Tan, 83  Phil.j 834, 46  Off. Gaz., Sup.  No. 11, p.  295 and Guzman vs. Rilloraza, G. R. No. L-4931, May  29, 1952).

The records show that the land in question was conveyed by Pascual to the spouses, Luciano and Arsenia, on June 15, 1946, while the notice of Us pendens remained uncancelled in the office of the register  of deeds.  The conveyance was in the form of a private instrument which was not recorded.  Furthermore, according to the statement  made by  Pascual in  the written agreement  between him and plaintiff Cruz filed in the  court of Bulacan and  which formed the basis of the  decision  in civil  case No.  266, the  conveyance  by him of the land in  question to the spouses was simulated, to conceal  said property in  civil case  No. 148.   Moreover,  according to the affidavit of plaintiff Cruz filed in court, during the pendency of civil case No. 148, he found the spouses on the land sometime in 1945 as  evacuees  by reason of the  last Pacific war, and because  there was talk of  Pascual  trying  to convey the land to them, he advised and warned them (Luciano and his wife)  that the  land  was in litigation and that it was not advisable or proper for them  to acquire the same  from Pascual.  In view of all this, the trial court correctly held that the spouses were privies  of defendant Pascual, and though not made parties in the case herein, nevertheless, they were bound by the decision rendered against Pascual particularly as  to the  land in litigation. 

"* * * The  appellee Francisco Sanz is a transferee pendente lite of the property involved in the case.  As such he stands exactly in the shoes of  his predecessor in interest, the original defendants, and is bound by the proceedings had in the case before the property was transferred to him.  He is a proper, but  not  an  indispensable, party as he would, in any event, have been bound by the judgment against  bis predecessor."  (Fetalino vs. Sanz,  44 Phil., 694). 

"Privity  in   estate  denotes  the privity between  assignor  and the assignee, donor and the donee, grantor  and grantee, joint tenant for life  and remain derman  or reversioner and their respective assignees, vendor by  deed of warranty and  a remote vendee or assignee.  * * * A  privy in  estate is one, it has been said,  who derives his title to the property in question by  purchase;  one  who takes  by conveyance."  (50  C. J., 407.) 

"A  privy to  a  judgment is one whose  succession  to the rights of property affected, occurs  after  the institution  of  the suit  and from  a party  to it."   (33 Words and  Phrases,  800.)

In view of the  foregoing, the order appealed from is hereby  affirmed, with  costs.

Paras,  C. J., Bengzon, Padilla, Reyes A., Bautista  Angelo, Labrador, Concepcion, Reyes,  J. B. L., and Endencia, JJ., concur.