Facts: In order to pay his debt to the Philippine National Bank, Nicolas Miras, on November 1, 1928, obtained from the spouses Laureano Asturias and Julia Orozco, a loan of P500.00 at 3% interest per month secured by a mortgage in a private document of the land in question. Upon failure to pay, Miras, with the request of the parties. executed a written document of sale with the right of repurchase within seven years covering the same property for the amount of P830.00. Miras remained in possession of the land, cultivating the portion not occupied by the coconuts and raising therein other plants. In payment of the interest, the spouses agreed that Miras can cultivate the coconuts found in the land.

After Laureano Asturias died in 1934, and before the death of his widow, Julia Orozco in 1937, Miras offered to redeem the property but the latter requested him to postpone the same to a later date as she had not yet sufficiently benefited from the capital invested, as the price of copra unexpectedly went down after 1930. Upon Julia Orozco’s death in July 1937, Miras made the same offer to redeem the property from petitioners herein, successors-in-interest of the spouses, who made the same request as their deceased mother, and to which request Miras once more agreed.

one year after Julia Orozco’s death, petitioners discovered the document in the form of a sale, they agreed to partition the land among themselves. Amparo, Romeo and Apolonia Camilon, children of the deceased Constancia Asturias, one of the heirs of the creditor spouses, reconveyed to respondent Nicolas Miras their one-fifth (1/5) portion of the property in question, upon receipt from him of the sum of P210.00, their share of the credit against Miras.

When the petitioners attempted to enter the property and tried to fence the same, in order to exclude Nicolas Miras therefrom, the latter filed an action for forcible entry and prevented the petitioners from continuing their act. In the same year, because of petitioners’ continued refusal to have the property redeemed, Miras filed the present case.

Issue: whether or not the testimony of Miras is admissible as evidence.

Ruling: Yes, The contention that under the rule of survivorship disqualification, the testimony of respondent Miras is inadmissible to vary the terms of the pacto de retro sale, untenable because, as found by the Court of Appeals, no timely objection has been made against the admission of such evidence. Furthermore, one of the petitioners (Fell Asturias) was made to testify on such prohibited matters overed by the exclusion rule (t.s.n., May 27, 1953, PP. 65 70-71). In view of this, petitioners are correctly deem to have waived the benefit and protection of the rule.1

As a consequence, the finding of fact of the Court of Appeals, arrived at after considering and evaluating the evidence thus properly admitted, that the contract in question is one of a loan with usurious interest and therefore is null and void, is conclusive upon us and can not be reviewed.

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