Parties: AURORA TAMBUNTING, ANTONIO TAMBUNTING, JOSE P.

TAMBUNTING and THE

Doctrine: One issue of a newspaper of general circulation is not substantial compliance with
the required publication of once (1) a week for at least three (3) consecutive weeks.

Facts: Private respondents, spouses Damaso R. Cruz and Monica Andres (hereafter, the Cruzes)
obtained a loan from petitioners, spouses Antonio and Aurora Tambunting (hereafter, the
Tambuntings) in the amount of P3,600.00. The Tambuntings are engaged in the lending-pawnshop
business using the name and style "Agencia de Tambunting", with co-petitioner Jose P. Tambunting
as Manager. The loan was evidenced by a promissory note executed by the Cruzes, payable within
four (4) months from 16 December 1959, with interest at 12% per annum. As security for payment of
the loan, a Deed of Real Estate Mortgage was executed by the Cruzes in favor of the Tambuntings
over a parcel of land.

Due to debtors' failure to pay the loan obligation at maturity, a petition for extrajudicial foreclosure of
mortgage was filed by the creditors on 17 March 1967. On 4 July 1967, a notice of sheriff's sale was
posted announcing an auction sale on 2 August 1967 at 10:00 o'clock in the morning. As shown by
the affidavit of publication, the notice of sale was published in the Rizal Chronicle, a newspaper of
general circulation in Rizal province, on 12, 19, and 26 July 1967.

On 2 August 1967, the Cruzes instituted an action against the Tambuntings for annulment of
mortgage and damages with prayer for a writ of preliminary injunction before the Court of First
Instance of Rizal, Branch 6-Pasig (docketed as Civil Case No. 10180). On the same day, a
temporary restraining order was issued by the court enjoining herein petitioners from proceeding
with the scheduled sale and to suspend the same until further orders from the court.

When the temporary restraining order was dissolved on 1 September 1967, the proposed sale was
moved to 20 October 1967. Postings of sheriff's notice of sale were made on 15 September 1967
with a re-publication of said notice in the Rizal Chronicle on 27 September, 4 & 11 October, 1967.
However, on 19 October 1967, petitioners were again directed by the court to hold the scheduled
sale in abeyance due to a motion for reconsideration filed by the Cruzes in regard to the lifting of the
temporary restraining order.

On 26 January 1968, the Cruzes thru counsel wrote the Provincial Sheriff of Rizal asking that the
auction sale set for that day (26 January 1968) be postponed to some other date considering that
there was no compliance with the notices required by law. On the same date, the Cruzes again thru
counsel sent the sheriff a notice of lis pendens informing the latter that Civil Case No. 10180 had
been filed by them for the annulment of the mortgage, upon the foreclosure of which the sale was to
be conducted, and that such action affects title to the property.

Private respondents filed a supplemental complaint in Civil Case No. 10180 impleading Tambunting
Realty Corporation, the Provincial Sheriff and the Register of Deeds of Rizal, the first, as the
subsequent vendee of the property, the second, as the officer responsible for holding the
extrajudicial foreclosure sale of 26 January 1968, and the third, for the subsequent transfers of the
mortgaged property despite alleged non-compliance with the requirements of Act 3135, Sec. 3 (as
amended by Act 4118) on posting and publication of the notice of foreclosure sale.
RTC- voided the foreclosure sale

CA- Affirmed RTC decision reasoning that the petitioners deviated from the posting and publication
requirements of law which rendered the notice of sale ineffective and voided the auction sale.

Issue/s:

1. Did the Court of First Instance and the Court of Appeals erroneously nullified and set aside the
auction sale for lack of compliance with the formalities of law?

2. Did the Court of Appeals erred in granting the Cruzes' petition for accounting of fruits, etc. after
judgment had been rendered, because this was tantamount to a modification of the trial court's
judgment, and an appellee, who is not an appellant, cannot seek affirmative relief from the appellate
court?

Ruling: 1. No. Questioned decision of the lower court and appellate court is affirmed.

Act. No. 3135 (governing extrajudicial foreclosure of real estate mortgage), as amended by Act No.
4118, reads:

SEC. 3. Notice shall be given by posting notices of the sale for not less than twenty
(20) days in at least three public places of the municipality or city where the property
is situated, and if such property is worth more than four hundred pesos, such notice
shall also be published once a week for at least three consecutive weeks in a
newspaper of general circulation in the municipality or city.

The rule is that statutory provisions governing publication of notice of mortgage foreclosure sales
must be strictly complied with, and that even slight deviations therefrom will invalidate the notice and
render the sale at least voidable.

One issue of a newspaper of general circulation is not substantial compliance with the required
publication of once (1) a week for at least three (3) consecutive weeks.  Petitioners claim the
publisher's affidavit of publication is merely a customary proof, hence, it should not be considered as
the sole evidence of publication. This may be so in the presence of equally convincing evidence. In
the case at bar, however, there is no such other proof of publication. To show compliance, the
published notices and certificate of posting by the sheriff of the notice of sale of 26 January 1968
should have been presented. They do not appear in the record. Neither can the sale be considered
as an adjournment of an earlier sale under Sec. 24 of Rule 39 of the Rules of Court.  As correctly
posed by the Court of Appeals, why was there one (1) publication of the notice of sale scheduled on
26 January 1968?  The presumption of compliance with official duty has been rebutted by the failure
to present proof of posting and publication of the notice of sale of 26 January 1968.

2. No. The granting of petition for accounting of fruits by the Court of Appeals is in accordance with
the law. Private respondents' petition for accounting, etc. did not really seek a modification of the
judgments of the trial court and the Court of Appeals. The remedy sought (accounting and offsetting
of accounts) was a direct clear-cut consequence of an equally clear-cut decision which, in effect,
held that the Cruzes were never divested of their ownership over the property in question. In other
words, the accounting sought and granted is merely an incident of the declared respondents' right of
ownership under the Civil Code