Appeal from the order of the Court of First Instance of Pangasinan dismissing the complaint filed in Civil Case No. D-1227 and the order denying the motion for the reconsideration of said order.

The complaint, filed on August 1, 1961, is for the annulment of a document, denominated "DEED OF ABSOLUTE SALE", executed on August 3, 1955, by and between Paulino Galvan, professedly the predecessor-in-interest of herein plaintiffs, and defendants Josefa Galvan and Natividad S. Galvan, and for damages and attorney's fees. The plaintiffs therein alleged that Paulino Galvan, during his lifetime, was the registered owner of an undivided one-half (1/2) interest over two parcels of land, known as Lot Nos. 4541 and 4542 of the Dagupan Cadastre and covered by OCT Nos. 38131 and 39317, respectively, of the Register of Deeds of Dagupan City. The other undivided half is owned by his two daughters by a first marriage, herein defendants Josefa Galvan and Natividad Galvan. On these lots, which are contiguous, is built the family home. On February 10, 1961, Paulino Galvan died and the plaintiffs, out of "delicadeza" waited for the defendants to initiate the move for the settlement of his estate. But, after waiting for some time and finding that none was forthcoming, the plaintiffs became apprehensive, so that they began to go over the papers concerning the properties of the decedent. In the office of the Register of Deeds of Dagupan City, they were surprised to find a deed of sale, signed by the late Paulino Galvan and the plaintiff, Maria Encarnacion Castillo, whereby they had purportedly sold for P500.00 the one-half undivided portion of Paulino Galvan over said lots in favor of defendants. When apprised of the existence of a deed of sale, plaintiff Maria Encarnacion Castillo remembered that way back in 1953, she and her husband Paulino Galvan were made to sign a certain document by Josefa Galvan "upon the fraudulent misrepresentation that the said document was only for the purpose of enabling them, the co-owners of the parcels of land in question, to have their separate tax declarations for the respective portions owned by them so that they can pay their respective real estate taxes separately, the said spouses not knowing that the said document is a deed of sale for which no consideration was even paid." The plaintiffs further alleged that Paulino Galvan could not have intended to sell his share and participation over the lots in question during his lifetime as he had no other residential lot to live in and there is no necessity for him to sell the same as he and his wife had sufficient income to sustain them. Besides, the undivided half share of Paulino Galvan was worth around P22,500.00 so that he could not have sold it for only P500.00. Wherefore, they prayed that the deed of sale be declared null and void; that the plaintiffs be declared the owners of four-sixths (4/6) of the undivided haIf share pertaining to Paulino Galvan; that the defendants be ordered to pay the amount of P1,500.00, as attorney's fees; and to pay the costs of suit.^[1]

The defendants filed their answer with counterclaim on August 23, 1961 wherein they interposed negative and affirmative defenses. As their affirmative defense, the defendants claim that "they are the absolute and exclusive owners of whole parcels of land described in the complaint for having acquired the portions belonging to their late father Paulino Galvan through legal and valid conveyance and this fact is known to the plaintiffs long before the filing of the complaint."^[2]

Three years thereafter, or on August 24, 1964, but before the case was tried, the defendants filed an amended answer with the corresponding motion to admit it, which amended answer contained an allegation that "the action of plaintiffs is barred by the statute of limitations.^[3]

The plaintiffs filed objections to the defendants' motion to amend their answer. Plaintiffs' principal objection was their contention that the defendants had waived the right to plead the statute of limitations and were estopped from pleading it by reason of the fact that they had tried to do so after the filing of their answer to the complaint. The plaintiffs further contend that the inclusion of the defense of prescription substantially altered the defense.^[4]

Over plaintiffs' objections, the trial court permitted the defendants to amend their answer by adding the defense of statute of limitations.^[5]

Then, two more years later or on August 27, 1966, the defendants filed a motion to dismiss the complaint upon the ground that the action is barred by the statute of limitations for the reason that the present action for the annulment of the instrument of sale is based upon fraud which should be brought within four (4) years from the time of the discovery of the same in accordance with Article 1391 of the Civil Code; and fraud, as a ground for annulment, shall be deemed to be discovered from the date of the registration of the alleged fraudulent documents; and considering that the deed of sale in question was registered on August 4, 1955, while the action for its annulment was commenced only on August 1, 1961, or after the lapse of more than four (4) years from its registration with the Register of Deeds, the action for annulment had prescribed.^[6]

The trial court sustained the defendants' contention, and, consequently, dismissed the complaint without costs, on September 22, 1966.^[7] A motion for the reconsideration of this order having been denied on November 2, 1966,^[8] the plaintiffs interposed the present appeal.

The appeal raises two issues for determination, the first of which is whether or not the trial court erred in admitting the amended answer which incorporated a defense of prescription not heretofore pleaded in the original answer.

The plaintiffs insist that the defendants, by their omission to plead the statute of limitations in their original answer, waived and relinquished that plea for all time, and that it was, therefore, error for the trial court toppermit the pleas On this contention, plaintiffs direct our attention to Sec. 2, Rule 9, of the Rules of Court which reads as follows:

 

"Section 2. Defenses and objections not pleaded deemed waived.- Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived; except the failure to state a cause of action which may be alleged in a later pleading, if one is permitted, or by motion for judgment on the pleadings, or at the trial on the merits; but in the last instance, the motion shall be disposed of as provided in Section 5 of Rule 10 in the light of any evidence which may have been received. Whenever it appears that the court has no jurisdiction over the subject-matter, it shall dismiss the action."

The plaintiffs have apparently ignored the rule that a party may amend his pleading once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within ten (10) days after it is served. After the case is set for hearing, substantial, amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay the action or that the cause of action or defense is substantially altered.^[9]

Here, leave to file an amended answer was sought after the case had been set for trial but before the trial thereof,^[10]  so that it is well within the ambit of the rule aforementioned. Indeed, if the plaintiffs believed that the trial court gravely abused its discretion in allowing the amendments to the answer, they should have filed the proper corrective action earlier.

The inclusion of the defense of statute of limitations is also claimed to have substantially altered the defense, in that in the original answer, the defendants invoked only "specific denial" as their defense, which means that they deny the truth of the allegations of fact constituting the fraud as alleged in the complaint, whereas the defense of statute of limitations impliedly admits the truth of facts alleged in the complaint as constituting the fraud, and, therefore, inadmissible.

The alteration pointed to by the plaintiffs is but nominal, and can not be considered a substantial alteration in the defense within the meaning of the rule. Comparing the original answer with amendments made thereto, there are no allegations in the amended answer wholly different from those which were stated in the original answer, except for the addition of the allegation that "the action of the plaintiffs is barred by the statute of limitations." As in their original answer, the defendants have maintained that "they are the absolute and exclusive owners of whole parcels of land described in the complaint for having acquired the portions belonging to their late father Paulino Galvan through ilegal and valid conveyance and this fact is known to plaintiffs long before the filing of the complaint." Even the prayer is the same. It is a sound estimate that the defense of prescription was interposed to strengthen their previous defense of estoppel or laches. The plaintiffs could not have been placed at a disadvantage for as a matter of fact, the plaintiffs had anticipated the defense of prescription in their complaint by pleading that they came to know of the existence of the deed of sale only after they went over the papers concerning the land in the office of the Register of Deeds of Dagupan City in 1961, after the death of Paulino Galvan.^[11]

At any rate, under Section 2, Rule 8 of the Rules of Court, a party is allowed to set forth in his pleading two or more statements or a claim or defense alternatively or hypothetically either in one cause of action or defense or in separate causes of action or defenses. And a defendant may set forth by his answer as many defenses and counterclaim as he may whatever be their nature regardless of consistency, provided, that each is consisted with itself.^[12]

The other issue raised is whether or not the trial court improperly dismissed the complaint on the ground of prescription. In its order dated September 22, 1966, dismissing the complaint, the trial court said:

 

"The complaint, among others, prays for the annulment of document, which is a deed of sale dated August 3, 1955, purporting conveyance of the two parcels described in the complaint in favor of defendants Josefa Galvan and Natividad Galvan and Emilio Samson. Said document (Exh. 1 for defendants) was registered on August 4, 1955 (Exhs. 1-A and 1-B). It is the contention of the defendants that plaintiffs' action has prescribed as the same was not presented within four years from the registration of the document.

 

"The court sustains defendants' contention. The basis of the annulment is alleged fraud, and the action for the annulment of the document should be brought within 4 years from the discovery of fraud (Mauricio vs. Villanueva, L-11072, September 24, 1959), and that such discovery of fraud is deemed to have taken place when the instrument was filed and registered with the Register of Deeds and new transfer certificate of title is issued in the name of the vendee for the registration of the deed constitutes constructive notice to the whole world (Diaz vs. Gorricho, L-11229, March 29, 1958; Ignacio Gerona, et al. vs. Carmen de Guzman, et al., L-19060, May 29, 1964).

 

"In view of the foregoing, the court resolves to dismiss, as it hereby dismisses, the complaint without costs."^[13] 

The allegations of the complaint show, however, that the plaintiffs' action is to declare void and inexistent the deed of sale executed by Paulino Galvan and Encarnacion Castillo on August 3, 1955, in favor of Josefa and Natividad Galvan, upon the grounds that (a) there is fraud in securing the signatures of the vendors in said deed of sale; and (b) there was no consideration given at the time of the transaction. In other words, the plaintiffs are seeking a judicial declaration that the deed of sale in question is void ab initio, which action is imprescriptible.^[14] The trial court erred, therefore, in dismissing the complaint for the reasons stated.

WHEREFORE, the judgment appealed from is reversed and the order of September 22, 1966, dismissing the complaint, is hereby set aside. Let this case be remanded to the court of origin for further proceedings. Without costs.

SO ORDERED.

Fernando, Actg. C.J., (Chairman), Antonio, and Santos, JJ., concur.

Barredo, J., concur. Because he is in favor of liberalizing the rule on waiver of defenses in order to promote substantial justice: The main opinion as well as that of Justice Conception Jr., have that tendency.

Aquino, J., see concurring opinion.

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^[1] p. 2, Record on Appeal.

^[2] p. 9, ibid.

^[3] p. 16, ibid.

^[4] p. 22, ibid.

^[5] p. 28, ibid.

^[6] p. 29, ibid.

^[7] 1 p. 32, ibid.

^[8] p. 41, ibid.

^[9] Secs. 2 and 3, Rule 10, Rules of Court.

^[10] See pp. 17, 33, Original Record.

^[11] See pars. 5, 6, 8, Complaint.

^[12] Castle Bros., Wolf & Sons vs. Go-Juno, 7 Phil. 144.

^[13] Record on Appeal, p. 33.

^[14] Art. 1410 in relation to Art. 1409 (3) of the Civil Code.

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