[G.R. No. L-19009. September 26, 1922.] E. C. MCCULLOUGH & Co., plaintiff-appellee, vs. S. M. BERGER, defendant-appellant.

Fisher & DeWitt for appellant. Perkins & Kincaid for appellee. SYLLAB S !. "#"$ %&'Y $&(%'A$%. ) Where *+ a ,ritin- .ade in /anila B -0aranteed 1the arrival of the to*acco in (e, York in -ood condition,1 and at the ti.e the to*acco ,as in transit on the hi-h seas and *+ its ter.s the to*acco ,as to *e delivered and received in (e, York, the contract ,as e2ec0tor+ and the title to it did not pass 0ntil after the arrival of the to*acco in (e, York. 3. SAL" WAS (&% $&/PL"%". ) Altho0-h the contract ,as .ade in /anila, 0nder the facts sho,n, articles 445 and 463 of the $ode of $o..erce do not appl+. %he contract ,as e2ec0tor+ and the sale ,as not co.plete 0ntil after 1the arrival of the to*acco in (e, York in -ood condition. 4. $&(D7%7&( P'"$"D"(%. ) Where 0nder the ter.s of a contract .ade in /anila the defendant ,as to deliver 1the to*acco in (e, York in -ood condition1 at ,hich ti.e the Plaintiff sho0ld pa+ the contract price, 1the arrival of the to*acco in (e, York in -ood condition1 ,as a condition precedent to the co.pletion of the sale. D"$7S7&( S%A%"/"(% For ca0se of action it is alle-ed that in the .onth of Fe*r0ar+, !8!9, plaintiff and defendant entered into an a-ree.ent *+ ,hich the defendant ,as to deliver plaintiff :;! *ales of to*acco at (e, York $it+ in -ood condition. %hat deliver+ ,as .ade and the plaintiff paid the f0ll p0rchase price. %hat 0pon an e2a.ination later the to*acco had <!3,;;; less than it ,o0ld have *een if the to*acco had *een in the condition ,hich defendant a-reed that it sho0ld *e, as a res0lt of ,hich plaintiff clai.s da.a-es for <!3,;;;, nited States c0rrenc+, or P36,;;;, Philippine c0rrenc+. %hat ,hen the condition of the to*acco ,as discovered, plaintiff pro.ptl+ notified the defendant, ,ho i-nored the protest. Wherefore, the plaintiff pra+s =0d-.ent for the a.o0nt of P36,;;;, Philippine c0rrenc+, for costs and -eneral relief. For ans,er, the defendant denies all the .aterial alle-ations of the co.plaint, and, as a f0rther and separate defense, alle-es that on A0-0st !:, !8!9, he ,as advised *+ the plaintiff that the latter ,as dissatisfied ,ith the >0alit+ of the to*acco, and he .ade hi. a for.al ,ritten offer to rep0rchase the to*acco at the ori-inal sellin- price ,ith. %hat defendant has *een read+ and ,illin- at all reasona*le ti.es to accept the ret0rn of the to*acco and to ret0rn the a.o0nt of the p0rchase price ,ith le-al interest, and has repeatedl+ tendered to the plaintiff s0ch p0rchase price in e2chan-e for the ret0rn of the to*acco, and that plaintiff had ref0sed to ret0rn it. %hat an+ da.a-es ,hich plaintiff .a+ have s0ffered have *een ,holl+ d0e to his ,illf0l ref0sal to ret0rn and redeliver the to*acco. pon s0ch iss0es there ,as a stip0lation of facts, and after trial the lo,er co0rt rendered =0d-.ent a-ainst the defendant and in favor of the plaintiff for the s0. of <!!,95?.89 or P34, ?4:.85 ,ith le-al interest fro. @an0ar+ 5, !83;, and costs, fro. ,hich, after his

.otion for a ne, trial ,as overr0led, the defendant appeals, clai.in- that the co0rt erredA First, in findin- that the to*acco ,as not in -ood condition ,hen it arrived in (e, YorkB second, in holdin- that the plaintiff is entitled to .aintain an action for *reach of contract after havin- a-reed ,ith the defendant to rescind and to .ake restit0tion of the s0*=ect .atter and the price after a violation of the a-ree.entB third, in holdin- that the plaintiff, havin- elected to rescind and notified the defendant of s0ch an election, .a+ no, ref0te it and affir. the sa.e and recover fro. the alle-ed *reach of ,arrant+B fo0rth, in holdinthat this action sho0ld *e .aintained, no clai. havin- *een .ade for the alle-ed *reach of ,arrant+ of >0alit+ ,ithin the stat0tor+ periodB and, fifth, in overr0lin- the defendantCs .otion for a ne, trial. @&D(S, @ pA 7n Fe*r0ar+, !8!9, the defendant .et the plaintiff in the cit+ of /anila and advised hi. that he had .ade a ship.ent of :;! *ales of to*acco to (e, York $it+ consi-ned to S. Lo,enthal & Sons, ,ho had ref0sed to honor the draft ,hich ,as dra,n 0pon the.. De asked the plaintiff ,hether he co0ld 0se the to*acco provided it ,as 1perfectl+ so0nd.1 At the plaintiffCs re>0est the defendant .ade and si-ned a ,ritin- as follo,sA 1'eferrin- to the ship.ent of :;! *ales of to*acco sold +o0 consistin- of !99 3;;-po0nd *ales of scrap and 4!4 3;;-po0nd *ales of *ooked to*acco, 7 *e- to confir. .+ ver*al conversation ,ith +o0 in statin- that 7 -0arantee the arrival of the to*acco in (e, York in -ood condition, s0*=ect, of co0rse, to conditions arisin- after its depart0re fro. /anila, ,hich contin-encies are covered *+ ade>0ate ins0rance.1 EStip0lation par. !.F pon the stren-th of this the plaintiff ca*led his (e, York office to honor the defendantCs draft, ,hich ,as ninet+ da+sC si-ht for <44,!;8, and ,as the sa.e draft and a.o0nt ,hich had *een ref0sed *+ S. Lo,enthal & Sons. %he draft ,as honored *+ his (e, York office at plaintiffCs re>0est. %he ship.ent consisted of !99 *ales of 1scrap,1 invoiced at 39 cents, -old, per po0nd, and 4!4 *ales of 1stripped1 and 1*ooked 1 at 45 cents, -old, per po0nd, and ,as .ade c. i. f. (e, York. Before its arrival in (e, York the plaintiff had fo0nd p0rchasers for a lar-e portion of it ,ith ,ho. he had .ade contracts for sale s0*=ect to e2a.ination as to condition as to condition. %he to*acco arrived in t,o ship.ents. %he first of 3!4 *ales on April 35, and the second of 399 *ales on /a+ !9, !8!9, and it ,as at once placed in ,areho0ses *+ plaintiff. With the e2ception of fo0r or five *ales, it appeared fro. an e2a.ination that the to*acco ,as ,ell *aled, and to all o0t,ard appearances ,as in -ood condition after the ship.ent. After it ,as placed in the ,areho0se, the to*acco itself ,as e2a.ined as to its condition and >0alit+ *+ the different *0+ers to ,ho. the plaintiff had contracted to sell it, and after s0ch ph+sical inspection, the+ ref0sed to accept it and co.plete their p0rchase *eca0se it ,as 1.0st+.1 7t appears that the plaintiff had sold !99 *ales of the to*acco *efore its arrival in (e, York to a c0sto.er in 'ed Lion, Penns+lvania, to ,ho. he shipped ?: *ales of it after its arrival. %his c0sto.er ref0sed to receive an+ of the re.ainin- *ales ,hich he had p0rchased, and the plaintiff ,as co.pelled to a-ain reship it *ack to (e, York. $o.pl+in- ,ith his a-ree.ent, on /a+ 3!, !8!9, the plaintiff paid the defendantCs draft ,hich he had previo0sl+ accepted, th0s co.pletin- his part of the contract ,ith the defendant. &n /a+ 34, !8!9 and as a res0lt of ph+sical inspection, the plaintiff ca*led the defendant that the to*acco ,as 0nsatisfactor+, and on @0ne !4, he a-ain ca*led that there ,o0ld

likel+ *e a loss. &n @0ne 39, !8!9, the plaintiff ,rote a letter to the defendant in ,hich, a.on- other thin-s, he sa+sA 1. . . %he to*acco has a ver+ stron- -ro0nd s.ell and so.e,hat of a .0st+ s.ell as tho0-h it had *een .i2ed 0p ,ith .0st+ to*acco. 7n other ,ords, it appears like this is to*acco assorted fro. *ales ,hich ,ere .ilde,ed and this is that part of the *ale ,hich ,as not .ilde,ed. 7t does not see. possi*le that this odor, or .0st+ s.ell, co0ld have developed in transit as it see.s perfectl+ clear that the to*acco ,as packed in that sa.e condition. 7n all the *ales ,hich ,e have e2a.ined, ,hich have *een considera*le, the to*acco see.s to *e perfectl+ dr+. 7n vie, of that 7 can see nothin- *0t ever+ indication that the to*acco ,as ori-inall+ a *ad lot.1 7n this letter he also advised the defendant that he ,as doin- ever+thin- he co0ld to sell the to*acco, and that he did not have an+ prospective *0+er event at a loss of 3: per cent. A0-0st 8, !8!9, the defendant ackno,led-ed the receipt of the letter and ca*les, sa+inthat he ,as 1not in a position to lose *et,een seventeen and t,ent+ tho0sand pesos, and that he ,o0ld consent to a red0ction of fo0r tho0sand pesos, if that ,as accepta*le, and, if it ,as not, to have the *ank pa+ *ack the a.o0nt of the draft ,ith interest and take char-e of the to*acco 0ntil the defendant ,o0ld arrive in (e, York.1 %he plaintiff did not receive this ca*le 0ntil A0-0st 3!, ,hen he ca*led in repl+ that he ,o0ld t0rn the to*acco over to the defendant, and that he 1a,aited tele-raphic instr0ction in re-ard to it. %hat at least t,ent+ dealers had passed on the to*acco.1 At that ti.e the plaintiff had sold 55 *ales of scattered sa.ples fro. ,hich, ,ith the ?: *ales sold to the 'ed Lion c0sto.er, he realiGed <8,;4!.?!. Septe.*er :, !8!9, the defendant ,rote the (e, York A-enc+ of the Philippine (ational Bank in ,hich he said that the plaintiff had advised hi. that the to*acco on arrival ,as not satisfactor+, and that there ,o0ld *e a loss, and that he had ass0red its arrival at destination 1in -ood condition.1 %hat he ,as takin- it *ack. %hat the *ank sho0ld pa+ plaintiff <44,!;8 pl0s interest 0pon deliver+ to it of the :;! *ales. %hat 1on no acco0nt sho0ld the+ a-ree to accept an+ shorta-e in the n0.*er of *ales.1 &n &cto*er !9, !8!9, ,itho0t an+ kno,led-e of the defendantCs instr0ction to the *ank, the plaintiff ,rote hi. that his proposition to take the to*acco *ack ,as satisfactor+ in ,hich he said that he had not heard fro. the *ank 1at the ti.e of ,ritin- ,ith reference to takin- *ack of the to*acco.C &cto*er 4;, !8!9, the *ank ,rote the plaintiff that it ,o0ld take *ack the identical :;! *ales, and pa+ hi. the a.o0nt of the draft and interest. %he plaintiff then ,rote the *ank a co.plete histor+ of the transaction, and e2plained ,h+ the identical :;! *ales co0ld not *e ret0rned. %hat he had realiGed <8,;4!.?! fro. !6! *ales of it ,hich he had sold, for ,hich he ,o0ld acco0nt and ret0rn the *alance of the to*acco ,hich ,as then 0nsold and in the (e, York ,areho0se. %he <8, ;4!.?! ,as .ore than the act0al a-reed p0rchase price of the !6! *ales. %his offer ,as ca*led to the defendant, ,ho repliedA 1%he instr0ctions -iven +o0 in .+ letter dated Septe.*er :, !8!9, ,ill not *e .odified.1 %he *ank notified the plaintiff of the receipt of this ca*le, and in t0rn notified the defendant that the plaintiff ,o0ld sell the to*acco at p0*lic a0ction, and then s0e hi. for the *alance of the p0rchase price, and later the plaintiff did sell the re.ainder of the to*acco 0pon ,hich there ,as a net act0al loss to hi. of <!!,95?.89, over and a*ove all act0al char-es and e2penses.

Altho0-h at the ti.e of the .akin- of the contract *et,een the. the plaintiff and defendant ,ere in /anila, the to*acco involved ,as in the hi-h seas in transit to (e, York. Fro. necessit+ the plaintiff co0ld not see or e2a.ine it and ,o0ld not kno, an+thin- a*o0t its -rade or >0alit+, and, for that reason, insisted that the defendant sho0ld .ake and si-n the ,ritin- a*ove >0oted in ,hich he sa+sA 17 -0arantee the arrival of the to*acco in (e, York in -ood condition, s0*=ect, of co0rse, to conditions arisin- after its depart0re fro. /anila, ,hich contin-encies are covered *+ ade>0ate ins0rance.1 %he trial co0rt fo0nd and the testi.on+ is concl0sive that the to*acco did not arrive in (e, York 1in -ood condition.1 and that, as a .atter of fact, it ,as not 1in -ood condition1 ,hen it left /anila. %he plaintiff and defendant had kno,n each other for a*o0t ten +ears, and had .0t0al confidence in each other, and ,ere e2perienced *0siness .en. DefendantCs draft of the to*acco had *een dishonored. Plaintiff ,as ,illin- to take the to*acco and honor the draft, ,ith the proviso that the defendant ,o0ld -0arantee its arrival 1in -ood condition.1 %he evidence sho,s that in the ,hole transaction, the plaintiff acted in -ood faith and .ade an earnest effort to protect the defendant and .ini.iGed his loss. Defendant kne, that in the ver+ nat0re of thin-s the plaintiff *o0-ht the to*acco for the p0rpose of resale, and that in the ordinar+ co0rse of *0siness, he ,o0ld resell it. %he record sho,s that he fo0nd p0rchasers for portions of it *efore its arrival in (e, York. %he onl+ reason ,h+ plaintiffCs sales ,ere not cons0..ated ,as *eca0se the to*acco did not stand inspection and ,as not 1in -ood condition1 at the ti.e of its arrival in (e, York. 7n other ,ords, plaintiff *o0-ht and paid the defendant for to*acco ,hich ,as not 1in -ood condition,1 and *o0-ht it for the p0rpose of resale. 7n the ver+ nat0re of thin-s, the defendant kne, that the plaintiff *o0-ht the to*acco for the p0rpose of resale, and he also kne, that, if the to*acco ,as not 1in -ood condition,1 it ,as not ,orth the a.o0nt of the p0rchase price ,hich plaintiff paid. %he defense cites and relies 0pon articles 445 and 463 of the $ode of $o..erce ,hich are as follo,sA 1A p0rchaser ,ho, at the ti.e of receivin- the .erchandise, f0ll+ e2a.ines the sa.e shall not have a ri-ht of action a-ainst the vendor, alle-in- a defect in the >0antit+ or >0alit+ of the .erchandise. 1A p0rchaser shall have a ri-ht of action a-ainst a vendor for defects in the >0antit+ or >0alit+ of .erchandise received in *ales or packa-es, provided he *rin-s his action ,ithin the fo0r da+s follo,in- its receipt, and that the da.a-e is not d0e to accident or to nat0ral defect of the .erchandise or to fra0d. 17n s0ch cases the p0rchaser .a+ choose *et,een the rescission of the contract or its f0lfill.ent in accordance ,ith ,hat has *een a-reed 0pon, *0t al,a+s ,ith the pa+.ent of the da.a-es he .a+ have s0ffered *+ reason of the defects or fa0lts. 1%he vendor .a+ avoid this clai. *+ de.andin- ,hen .akin- the deliver+ that the .erchandise *e e2a.ined *+ the p0rchaser for his satisfaction ,ith re-ard to the >0antit+ and >0alit+ thereof.1 Article 463A

1A p0rchaser ,ho has not .ade an+ clai. *ased on the inherent defects in the article sold, ,ithin the thirt+ da+s follo,in- its deliver+, shall lose all ri-hts of action a-ainst the vendor for s0ch defects.1 Whatever .a+ *e the r0le as to sales ,hich are co.pleted ,ithin the =0risdiction of the Philippine 7slands, those sections do not, and ,ere never intended to, appl+ to a case fo0nded 0pon the facts sho,n in the record. Altho0-h it is tr0e that the contract *et,een the plaintiff and the defendant ,as .ade in /anila, +et at the ti.e it ,as .ade the to*acco ,as on the hi-h seas, and 0nder the contract, it ,as to *e delivered 1in -ood condition1 in the $it+ of (e, York, in consideration of ,hich the plaintiff a-reed to pa+ the draft. %hat is to sa+, the transaction ,as not co.plete 0ntil after the arrival of the to*acco in (e, York 1in -ood condition,1 and the pa+.ent of the draft. 7t .0st *e conceded that if, for an+ reason, the to*acco did not arrive in (e, York, the defendant co0ld not recover 0pon the draft fro. the plaintiff. Dence, it .0st follo, that the deliver+ of the to*acco at (e, York ,as a condition precedent ,hich devolved 0pon the defendant to perfor. ,itho0t ,hich he ,o0ld not have a ca0se of action a-ainst the plaintiff. 7t is tr0e that the ,ritin- recites 1the ship.ent of :;! *ales of to*acco sold +o0.1 Yet, the fact re.ains that it ,as necessar+ to deliver the to*acco in (e, York to co.plete the sale. $ontracts of this nat0re sho0ld *e constr0ed ,ith reference to the s0rro0ndin- conditions and the relative sit0ation of the parties. At the ti.e this contract ,as .ade *oth parties ,ere in /anila, the to*acco ,as in transit to (e, York, and the defendant kne, that the plaintiff entered into the contract for the p0rpose of a resale. Soon after the contract ,as .ade, the plaintiff left /anila and ,ent to (e, York ,here, rel+in- 0pon his contract ,ith the defendant, he fo0nd p0rchasers for the to*acco on the ass0.ption the it ,as 1in -ood condition.1 Altho0-h the ,ord 1sold1 is 0sed in the ,ritten contract, the transaction sho,s that the sale ,as not co.plete 0ntil the arrival of the -oods in (e, York. %he case of /iddleton vs. Ballin-all E! $al., 665F, is so.e,hat in point, in ,hich the co0rt sa+sA 17 think that the fair constr0ction to *e p0t 0pon the contract is, that on the arrival of the ship containin- the -oods, the defendants sho0ld deliver the., and the plaintiffs sho0ld pa+ the contract price. And the a0thorities hold that the arrival of the -oods, in s0ch case, is a condition precedent, ,hich .0st *e sho,n to have taken place *efore either part+ can *rin- s0it.1 7n the instant case, the contract ,as at least e2ec0tor+ as to the deliver+ of the to*acco in (e, York. $+c., Hol. 4:, pp. 3?6, 3?: and 3?5, sa+sA 17n order to pass the title to -oods as a-ainst the seller or those clai.in- 0nder hi. there .0st *e a valid e2istin- and co.pleted contract of sale. nder a co.pleted contract of sale the propert+ in the -oods passes at once fro. the seller to the *0+er, at the place ,here the contract *eco.es co.plete, and for this reason the a-ree.ent is fre>0entl+ called an e2ec0ted contract. %he sale is, ho,ever, an e2ec0tor+ contract, if the seller .erel+ pro.ises to transfer the propert+ at so.e f0t0re da+s, or the a-ree.ent conte.plates the perfor.ance of so.e act or condition necessar+ to co.plete the transfer. nder s0ch a contract 0ntil the act is perfor.ed or the condition f0lfilled ,hich

is necessar+ to convert the e2ec0tor+ into an e2ec0ted contract, no title passes to the *0+er as a-ainst the seller or persons clai.in- 0nder hi. While certain ter.s and e2pressions standin- alone i.port an e2ec0ted or e2ec0tor+ contract, the+ are *+ no .eans concl0sive *0t .0st *e constr0ed ,ith reference to other provisions of the contract and accordin- to ,hat appears to have *een the real intention of the parties, and so a .ere recital in the ,ritin- evidencin- the contract that the article is CsoldC or that the *0+er has Cp0rchasedC it does not necessaril+ .ake the contract e2ec0tedB ,hile on the other hand a recital that the seller Ca-rees to sellC is not concl0sive that the title ,as not intended to pass i..ediatel+.1 %he trial co0rt fo0nd and the evidence s0stains the findin- that the plaintiff acted in -ood faith. %he contract ,as .ade in Fe*r0ar+, !8!9B the draft ,as pa+a*le ninet+ da+s after dateB the first ship.ent of 3!4 *ales arrived on April 35, and the second of 399 *ales on /a+ !9B and the plaintiff paid the draft on /a+ 3!, !8!9, and the transaction *et,een the parties then *eca.e co.plete. &n /a+ section *et,een the parties then *eca.e co.plete. &n /a+ 34, he ca*led the defendant that the to*acco ,as 0nsatisfactor+. &n @0ne !4, he ca*led that there ,o0ld *e a loss. &n @0ne 39, he ,rote the letter a*ove >0oted. Septe.*er :, the defendant ,rote the (e, York A-enc+ of the Philippine (ational Bank that he ,o0ld take the to*acco *ack on condition that there ,as not an+ shorta-e in the n0.*er of *ales. D0rin- all of this ti.e, the defendant had the 0se of PlaintiffCs .one+. 7t is tr0e that the defendant offered to take the to*acco *ack and ref0nd the .one+, *0t this offer ,as 0pon the condition that the f0ll a.o0nt of the :;! *ales sho0ld *e ret0rned, ,hich ,as an i.possi*le condition for the plaintiff to perfor.. B0t the plaintiff did offer to acco0nt to the defendant for the to*acco ,hich he had sold and to ret0rn all of the 0nsold to*acco ,hich ,as then in his ,areho0se, and the defendant declined the offer. As a *0siness .an, he kne, that the plaintiff had then p0rchased the to*acco for the p0rpose of a resale, and that the to*acco had arrived at (e, York a*o0t five .onths *efore the offer ,as .ade, and he also kne, that the plaintiff ,as 0sinever+ effort to sell it and convert it into .one+, and that he ,o0ld sell the ,hole or an+ part of it if a p0rchaser co0ld *e fo0nd at a reasona*le price. At the ti.e the defendantCs offer ,as co..0nicated to the plaintiff *+ the *ank the plaintiff in t0rn offered to acco0nt to the defendant for the entire proceeds of the !6! *ales ,hich he had alread+ sold, and to deliver to hi. all of the 0nsold to*acco. %his ,as all that the plaintiff co0ld do 0nder the e2istin- conditions. %he fact that the defendant did not accept this offer is stron- evidence that he ,as seekin- an 0nd0e advanta-e, and that his offer to plaintiff ,as not .ade in -ood faith. %he second ship.ent arrived in (e, York on /a+ !9, and the plaintiff co0ld not *e e2pected to take an+ final action 0ntil the last ship.ent arrived &n learnin- the tr0e condition of the to*acco, the plaintiff ca*led the defendant on /a+ 34 that it ,as 0nsatisfactor+, and a-ain on @0ne !4, that there ,o0ld *e a s0*stantial loss, ,hich ,as follo,ed *+ the letter of @0ne 39th a*ove >0oted. %he defects in the to*acco ,ere inherent and co0ld not *e ascertained ,itho0t openinthe *ales and .akin- a ph+sical e2a.ination. When this ,as done, the plaintiff co0ld not then render the defendant a state.ent of the a.o0nt of his clai.. B+ the ter.s of the contract, the defendant -0aranteed the arrival of the to*acco in (e, York 1in -ood condition.1

PlaintiffCs first ca*le sent ten da+s after the arrival of the to*acco advised the defendant that it ,as 0nsatisfactor+, and the second, t,ent+-si2 da+s after its arrival, advised hi. that there ,o0ld *e a loss. AppellantCs attorne+s have s0*.itted a ver+ a*le and adroit *rief in ,hich the+ severel+ criticiGe the evidence on the part of the plaintiff. pon all of the .aterial >0estions of fact, the trial co0rt fo0nd for the plaintiff, and, in o0r opinion, the evidence s0stains the findin-s. 7t .0st *e re.e.*ered that d0rin- all of these ti.es there ,as a*o0t ten tho0sand .iles of ocean *et,een the. %he plaintiff had parted ,ith his .one+ and honored the draft, e2pectin- to sell the to*acco and -et his .one+ *ack ,ith a profit. %he testi.on+ is concl0sive that the plaintiff in -ood faith tried to sell the to*acco, and that he sold the !6! *ales at the *est o*taina*le priceB that the onl+ reason ,h+ he did not sell the re.ainder ,as *eca0se the to*acco ,as not 1in -ood conditionB1 and that ,hen he first kne, that it ,as not 1in -ood condition, 1 he pro.ptl+ ca*led the defendant that it ,as 0nsatisfactor+. As ,e constr0e the record, after the to*acco ,as inspected, the plaintiff pro.ptl+ advised the defendant that it ,as 0nsatisfactor+, and that he ,o0ld have to s0stain a loss, and in -ood faith 0ndertook to protect the defendant and to .ini.iGe the loss, and plaintiffCs clai. is not *arred *+ the provisions of either article 445 or 463 of the $ode of $o..erce. %he =0d-.ent is affir.ed, ,ith costs. So ordered. Ar0allo, $ @., @ohnson, /alcol., Avancena, Hilla.or, &strand, and 'o.0alde, @@., conc0r. Separate &pinions S%'""%, @., conc0rrin-A 7 conc0r in the concl0sion reached in this case and in accord ,ith .ost that is said in the opinion. B0t in the vie, 7 take of the case, it o0-ht not to *e said that the sale ,as not co.plete 0ntil the arrival of the to*acco in (e, York. 7n vie, of the e2press -0arant+ -iven *+ the defendant to the effect that the to*acco ,o0ld arrive in -ood condition, *arrin- certain contin-encies, and it havin- *een clearl+ proved that the to*acco ,as not in -ood condition 0pon arrival there, a ri-ht of action accr0ed to the plaintiff to *e inde.nified to the e2tent allo,ed, and this independentl+ of article 463 of the $ode of $o..erce. B0t, even s0pposin- this provision to *e applica*le, clai. ,as .ade ,ithin thirt+ da+s after co.plete deliver+ had *een effected. %he .ane0vers of the defendant relative to takin- *ack the to*acco ) on ter.s ,hich he .0st have *elieved ,o0ld *e i.possi*le of f0lfill.ent ) ,ere a .ere to -ain an advanta-e in the i.pendin- le-al controvers+B and the contention that there ,as a rescission, or accepted offer of rescission, is 0ntena*le.

[G.R. No. 1 !6"6. #$%e 2&, 200 .] HE'RS O( #ESUS M. M)SCU*)N), represented *+ @&S" /A. '. /AS$ IA(A, petitioners, vs. COUR+ O( ),,E)LS, )-U'L'NO B)R+E, and SP& S"S '&D&LF& and $&'AJ&( LAY /AS, respondents. Sa.0el S/ LeGa.a for petitioners. Benito D. %an for private respondents. SYLLAB S !. '"/"D7AL LAWB $7H7L P'&$"D '"B APP"AL BY $"'%7&'A'7B &(LY K "S%7&(S &F LAW /AY B" 'A7S"D. ) %he iss0es raised *+ the petitioners in this case are fact0al, and 0nder '0le 6: of the '0les of $o0rt, onl+ >0estions of la, .a+ *e raised in this $o0rt, the reason *ein- that this $o0rt is not a trier of facts. 7t is not to re-e2a.ine the evidence on record and to cali*rate the sa.e. /oreover, the findin-s and concl0sions of the trial co0rt as affir.ed *+ the $A are concl0sive on the $o0rt, a*sent of an+ evidence that the trial co0rt, as ,ell as the $A i-nored, .isinterpreted and .isconstr0ed facts and circ0.stances of s0*stance ,hich, if considered, ,o0ld alter or reverse the o0tco.e of the case. a%ADcD 3. $7H7L LAWB &BL7LA%7&(S A(D $&(%'A$%SB SAL"SB %'A(SF"' &F &W("'SD7P %AK"S "FF"$% P&( %D" "#"$ %7&( &F A P BL7$ 7(S%' /"(% $&H"'7(L %D" '"AL P'&P"'%Y. ) While it is tr0e that @es0s /asc0Mana e2ec0ted the deed of a*sol0te sale over the propert+ on A0-0st !3, !85! in favor of Diosdado S0.ilhi- for P6,58;.;;, and that it ,as onl+ on @0l+ 5, !853 that %$% (o. 85? ,as iss0ed in his na.e as one of the co-o,ners of Lot (o. !36, Diosdado S0.ilhi- and the respondents nevertheless ac>0ired o,nership over the propert+. %he deed of sale e2ec0ted *+ @es0s /asc0Mana in favor of Diosdado S0.ilhi- on A0-0st !3, !85! ,as a perfected contract of sale over the propert+. 7t is settled that a perfected contract of sale cannot *e challen-ed on the -ro0nd of the non-transfer of o,nership of the propert+ sold at that ti.e of the perfection of the contract, since it is cons0..ated 0pon deliver+ of the propert+ to the vendee. 7t is thro0-h tradition or deliver+ that the *0+er ac>0ires o,nership of the propert+ sold. As provided in Article !6:9 of the (e, $ivil $ode, ,hen the sale is .ade thro0-h a p0*lic instr0.ent, the e2ec0tion thereof is e>0ivalent to the deliver+ of the thin- ,hich is the o*=ect of the contract, 0nless the contrar+ appears or can *e inferred. %he record of the sale ,ith the 'e-ister of Deeds and the iss0ance of the certificate of title in the na.e of the *0+er over the propert+ .erel+ *ind third parties to the sale. As *et,een the seller and the *0+er, the transfer of o,nership takes effect 0pon the e2ec0tion of a p0*lic instr0.ent coverin- the real propert+. Lon- *efore the petitioners sec0red a %orrens title over the propert+, the respondents had *een in act0al possession of the propert+ and had desi-nated Barte as their overseer. 4. 7D.B 7D.B 7D.B "SS"(%7AL "L"/"(%S. ) %h0s, there are three essential ele.ents of sale, to ,itA aF $onsent or .eetin- of the .inds, that is, consent to transfer o,nership in e2chan-e for the priceB *F Deter.inate s0*=ect .atterB and cF Price certain in .one+ or its e>0ivalent.

6. 7D.B 7D.B 7D.B $&(%'A$% &F SAL"B %D"'" WAS (& S%7P LA%7&( 7( %D" D""D %DA% %D" %7%L" %& %D" P'&P"'%Y '"/A7("D W7%D %D" H"(D&'B $AS" A% BA'. ) 7n this case, there ,as a .eetin- of the .inds *et,een the vendor and the vendee, ,hen the vendor 0ndertook to deliver and transfer o,nership over the propert+ covered *+ the deed of a*sol0te sale to the vendee for the price of P6,58;.;; of ,hich P4,58;.;; ,as paid *+ the vendee to the vendor as do,n pa+.ent. %he vendor 0ndertook to have the propert+ sold, s0rve+ed and se-re-ated and a separate title therefor iss0ed in the na.e of the vendee, 0pon ,hich the latter ,o0ld *e o*li-ed to pa+ the *alance of P!,;;;.;;. %here ,as no stip0lation in the deed that the title to the propert+ re.ained ,ith the vendor, or that the ri-ht to 0nilaterall+ resolve the contract 0pon the *0+erCs fail0re to pa+ ,ithin a fi2ed period ,as -iven to s0ch vendor. Patentl+, the contract e2ec0ted *+ the parties is a deed of sale and not a contract to sell. "$%7Da :. 7D.B 7D.B 7D.B 7D.B S%7P LA%7&( %D"'"7( %DA% %D" P '$DAS" P'7$" SDALL B" PA7D P&( F LF7LL/"(% &F S&/" $&(D7%7&(S W7LL (&% P'"H"(% 7%S "FF7$A$Y. ) %he condition in the deed that the *alance of P!,;;;.;; shall *e paid to the vendor *+ the vendee as soon as the propert+ sold shall have *een s0rve+ed in the na.e of the vendee and all papers pertinent and necessar+ to the iss0ance of a separate certificate of title in the na.e of the vendee shall have *een prepared is not a condition ,hich prevented the efficac+ of the contract of sale. 7t .erel+ provides the .anner *+ ,hich the total p0rchase price of the propert+ is to *e paid. %he condition did not prevent the contract fro. *ein- in f0ll force and effectN.O 5. 7D.B 7D.B 7D.B 7D.B D7FF"'"(%7A%"D F'&/ $&(%'A$% %& S"LL. ) 7n a contract to sell, o,nership is retained *+ a seller and is not to *e transferred to the vendee 0ntil f0ll pa+.ent of the price. S0ch pa+.ent is a positive s0spensive condition, the fail0re of ,hich is not a *reach of contract *0t si.pl+ an event that prevented the o*li-ation fro. ac>0irin- *indin- force. 7t *ears stressin- that in a contract of sale, the non-pa+.ent of the price is a resol0tor+ condition ,hich e2tin-0ishes the transaction that, for a ti.e, e2isted and dischar-es the o*li-ation created 0nder the transaction. A seller cannot 0nilaterall+ and e2tra=0diciall+ rescind a contract of sale 0nless there is an e2press stip0lation a0thoriGin- it. 7n s0ch case, the vendor .a+ file an action for specific perfor.ance or =0dicial rescission. ?. 7D.B 7D.B 7( '"$7P'&$AL &BL7LA%7&(S, ("7%D"' PA'%Y 7($ 'S 7( D"LAY 7F %D" &%D"' D&"S (&% $&/PLY &' 7S (&% '"ADY %& $&/PLY 7( A P'&P"' /A(("' W7%D WDA% 7S 7($ /B"(% P&( D7/. ) Article !!58 of the (e, $ivil $ode provides that in reciprocal o*li-ations, neither part+ inc0rs in dela+ if the other does not co.pl+ or is not read+ to co.pl+ in a proper .anner ,ith ,hat is inc0.*ent 0pon hi.B fro. the .o.ent one of the parties f0lfills his o*li-ation, dela+ *+ the other *e-ins. %cAD$7 D"$7S7&( $ALL"@&, S'., @ pA %his is a petition for revie, on certiorari of the Decision ! of the $o0rt of Appeals E$AF in $A-L.'. $H (o. :4!!? affir.in- the Decision 3 of the 'e-ional %rial $o0rt E'%$F of San $arlos $it+, (e-ros &ccidental, ,hich ordered the dis.issal of the petitionersC co.plaint for recover+ of possession and da.a-es. ADcSD$ %he Antecedents

Lertr0dis W0thrich and her si2 other si*lin-s ,ere the co-o,ners of a parcel of land identified as Lot (o. !36 of the San $arlos $it+, (e-ros &ccidental $adastre, ,ith an area of !,?38 s>0are .eters and covered *+ %ransfer $ertificate of %itle E%$%F (o. !6:4' E%-3884?F-49. 4 &ver ti.e, Lertr0dis and t,o other co-o,ners sold each of their oneseventh E!P?F shares, or a total area of ?6! s>0are .eters, to @es0s /asc0Mana. %he latter then sold a portion of his !6;-s>0are-.eter 0ndivided share of the propert+ to Diosdado S0.ilhi-. /asc0Mana later sold an additional !5;-s>0are-.eter portion to S0.ilhi- on April ?, !85!. Do,ever, the parties a-reed to revoke the said deed of sale and, in lie0 thereof, e2ec0ted a Deed of A*sol0te Sale on A0-0st !3, !85!. 7n the said deed, /asc0Mana, as vendor, sold an 0ndivided 658-s>0are-.eter portion of the propert+ for P6,58;.;;, ,ith P4,58;.;; as do,n pa+.ent, and 0nder the follo,in- ter.s of pa+.entA %hat the *alance of &(" %D& SA(D P"S&S EP!,;;;.;;F shall *e paid *+ the H"(D"" 0nto the H"(D&' as soon as the a*ove-portions of Lot !36 shall have *een s0rve+ed in the na.e of the H"(D"" and all papers pertinent and necessar+ to the iss0ance of a separate $ertificate of %itle in the na.e of the H"(D"" shall have *een prepared. 6 &n Dece.*er 4!, !85!, /asc0Mana and @ose L. "sta*illo e2ec0ted a Deed of "2chan-e and A*sol0te Sale of 'eal "state, : in ,hich "sta*illo deeded to /asc0Mana a portion of his propert+ a*0ttin- that of S0.ilhi- on the so0theast. 7n the .eanti.e, a s0rve+ ,as cond0cted for the co-o,ners of Lot (o. !36 on @0l+ 8, !853. %he s0*division plan of the said lot ,as approved *+ the Director of Lands on A0-0st 3, !853. %he portion of the propert+ deeded to S0.ilhi- ,as identified in the said plan as Lot (o. !36-B. 5 /ean,hile, /asc0Mana died intestate on April 3;, !85: and ,as s0rvived *+ his heirs, "va /. "llisin, 'enee De,lett, $ar.en Hda. de &peMa, /arilo0 D+ and @ose /a. '. /asc0Mana. 7c"SaA &n April 36, !859, S0.ilhi- e2ec0ted a Deed of Sale of 'eal Propert+ ? on a portion of Lot (o. !36-B ,ith an area of 658 s>0are .eters and the i.prove.ents thereon, in favor of $oraGon La+0.as, the ,ife of @0d-e 'odolfo La+0.as, for the price of P!!,;;;.;;. %he spo0ses La+0.as then had the propert+ s0*divided into t,o lotsA Lot (o. !36-B-3 ,ith an area of ?! s>0are .eters 0nder the na.e of @es0s /asc0Mana, and Lot (o. !36B-!, ,ith an area of 658 s>0are .eters 0nder their na.es. 9 %he spo0ses La+0.as took possession of the propert+ and ca0sed the c0ttin- of tall -rasses thereon. pon the plea of a reli-io0s or-aniGation, the+ allo,ed a chapel to *e constr0cted on a portion of the propert+. 8 7n @an0ar+ !89:, the spo0ses La+0.as allo,ed A>0ilino Barte to sta+ on a portion of the propert+ to ,ard off s>0atters. !; Barte and his kin, 'osto. Barte, then had their ho0ses constr0cted on the propert+. &n &cto*er !, !89:, the spo0ses La+0.as received a Letter !! fro. the co0nsel of 'enee %edre,, offerin- to *0+ their share of the propert+ for S<!,;;;.;;. For her part, $oraGon La+0.as ,rote Pepito /asc0Mana, offerin- to pa+ the a.o0nt of P!,;;;.;;, the *alance of the p0rchase price of the propert+ 0nder the deed of a*sol0te sale e2ec0ted *+ /asc0Mana and S0.ilhi- on A0-0st !3, !85!. !3 Do,ever, the addressee ref0sed to receive the .ail .atter. !4 nkno,n to the spo0ses La+0.as, %$% (o. 9895 !6 ,as iss0ed over Lot (o. !36-B in the na.e of @es0s /asc0Mana on /arch !?, !895.

&n (ove.*er !?, !895, the heirs of /asc0Mana filed a $o.plaint !: for recover+ of possession of Lot (o. !36-B and da.a-es ,ith a ,rit of preli.inar+ in=0nction, alle-inthat the+ o,ned the s0*=ect lot *+ virt0e of s0ccessional ri-hts fro. their deceased father. %he+ averred that Barte s0rreptitio0sl+ entered the pre.ises, fenced the area and constr0cted a ho0se thereon ,itho0t their consent. Attached as anne2es to the co.plaint ,ere %$% (o. 9895 and a certification !5 fro. the &ffice of the $it+ %reas0rer, Land %a2 Division, vo0chin- that the propert+ in >0estion ,as o,ned *+ the petitioners and that the+ had paid the ta2es thereon 0ntil !883. "cS$DD 7n his ans,er to the co.plaint, Barte ad.itted havin- occ0pied a portion of Lot (o. !36B, *0t clai.ed that he sec0red the per.ission of 'odolfo La+0.as, the o,ner of the s0*=ect propert+. De added that he did not fence the propert+, and that the petitioners did not 0se the sa.e as a passa-e,a+ in -oin- to Broce Street fro. their ho0se. Barte raised the follo,in- special defensesA EaF the petitioners ,ere estopped fro. assertino,nership over the lot in >0estion *eca0se the+ did not o*=ect ,hen he occ0pied the said portion of the lotB E*F neither did the petitioners protest ,hen a ch0rch ,as *0ilt on the propert+, or ,hen residential ho0ses ,ere constr0cted thereonB EcF the petitioners still asked Barte and the other occ0pants ,hether the+ had notified 'odolfo La+0.as of the constr0ctions on the propert+B and EdF the heirs of /asc0Mana, thro0-h the la,+er of /rs. 'enee /. %edre,, even ,rote a letter !? to 'odolfo La+0.as on &cto*er !, !89:, e2pressin- her ,illin-ness to *0+ the s0*=ect propert+ for S<!,;;;.;;. &n April 9, !88!, the spo0ses La+0.as filed a /otion for Leave to 7ntervene, !9 alle-intherein that the+ had a le-al interest in Lot (o. !36-B-! as its *0+ers fro. S0.ilhi-, ,ho in t0rn p0rchased the sa.e fro. /asc0Mana. 7n their ans,er in intervention, !8 the spo0ses La+0.as alle-ed that the+ ,ere the tr0e o,ners of the s0*=ect propert+ and that the+ had ,anted to pa+ the ta2es thereon, *0t the Land %a2 clerk ref0sed to receive their pa+.ents on acco0nt that the petitioners had alread+ .ade s0ch pa+.ent. %he spo0ses La+0.as f0rther .aintained that the petitioners had no ca0se of action a-ainst Barte, as the+ had a0thoriGed hi. to occ0p+ a portion of Lot (o. !36-B-!. %he spo0ses La+0.as also averred that the petitioners ,ere estopped fro. den+in- their ri-ht of o,nership and possession of the s0*=ect lot, as one of the. had even offered to rep0rchase a portion of Lot (o. !36-B via letter. %he said spo0ses interposed a co0nterclai. for da.a-es, clai.in- o,nership over the propert+, and pra+ed, th0sA WD"'"F&'", it is .ost respectf0ll+ pra+ed that this D&(&'ABL" $& '% render =0d-.ent in favor of the 7ntervenors and the defendant A>0ilino Barte, orderin-A !. %hat the co.plaint a-ainst A>0ilino Barte *e dis.issed ,ith costs a-ainst the plaintiffB A7DS%" 3. %hat the 7ntervenors spo0ses @0d-e 'odolfo S. La+0.as and $oraGon A. La+0.as *e declared as the le-al and tr0e o,ners of Lot !36-BB 4. %hat the plaintiffs sho0ld deliver i..ediatel+ to the 7ntervenors, %$% (o. 9895 ,hich is in their possessionB 6. %hat the plaintiffs *e .ade to pa+ to the 7ntervenors the s0. of %D7'%Y %D& SA(D EP4;,;;;.;;F P"S&S .oral da.a-esB %"( %D& SA(D EP!;,;;;.;;F P"S&S attorne+Cs fees pl0s %D'"" D (D'"D EP4;;.;;F P"S&S as appearance fee per hearin-. 7ntervenors pra+ for s0ch other relief and re.edies as .a+ *e dee.ed *+ this Donora*le $o0rt as =0st and e>0ita*le in the pre.ises.

At the trial, intervenor 'odolfo La+0.as testified that he and his ,ife *o0-ht the s0*=ect propert+ in !859, and that no*od+ o*=ected to their possession of the land, incl0din- the petitioners. 7n !8?;, a reli-io0s or-aniGation asked his per.ission to constr0ct a chapel on the disp0ted lotB he allo,ed the constr0ction since the sa.e ,o0ld *e 0sed for the fiesta. De f0rther declared that part of the chapel still stood on the propert+. 7n !89:, a fire raGed the to,nCs p0*lic .arket, there*+ dislocatin- n0.ero0s people. Barte ,as one of the fire victi.s, ,ho also happened to *e a -ood friend and political s0pporter of 'odolfo. &0t of -ood,ill, Barte ,as allo,ed to occ0p+ a portion of the said lot, alon,ith so.e other fire victi.s. 'odolfo clarified that the others ,ere to sta+ there onl+ on a te.porar+ *asis, *0t ad.itted that BarteCs children also sta+ed in the s0*=ect propert+. 3; 'odolfo La+0.as f0rther narrated that in !89?, $oraGon ,rote one of the petitionersheirs, Pepito /asc0Mana, re>0estin- that the title of the lot *e transferred in S0.ilhi-Cs na.e so that the+ co0ld like,ise arran-e for the conve+ance of the title in their na.es. Pepito failed to clai. the letter, and thereafter, filed a case of e=ect.ent a-ainst Barte and 'odolfo La+0.asC *rother-in-la,, Pepito Antonio. %he case, the ,itness added, ,as dis.issed as a-ainst the t,o parties. &ffered in evidence ,ere the follo,in-A a S,orn State.ent on the $0rrent and Fair /arket Hal0e of the 'eal Propert+ iss0ed in !8?4 as re>0ired *+ Presidential Decree (o. ?5, and ta2 receipts. 3! 'odolfo La+0.as ad.itted on cross-e2a.ination that at the ti.e the+ *o0-ht the propert+ fro. S0.ilhi-, the title ,as still in the possession of the W0thrich fa.il+. De added that he filed an adverse clai. *efore the 'e-ister of Deeds of San $arlos $it+, (e-ros &ccidental, on Lot (o. !36-B in @an0ar+ !895, or after the case had alread+ *een filed in co0rt. Lastl+, the ,itness deposed that he did not fence the propert+ after *0+inthe sa.e, *0t that his *rother-in-la, constr0cted a coco-l0.*er +ard thereon 0pon his a0thorit+. 33 &n @an0ar+ 4;, !885, the trial co0rt rendered =0d-.ent in favor of Barte and the spo0ses La+0.as. %he fallo of the decision readsA WD"'"F&'", pre.ises considered, =0d-.ent is here*+ rendered in favor of 7ntervenors-co0nterclai.ants and defendant and a-ainst plaintiffs-co0nterclai. defendants orderin- as follo,sA !. %he dis.issal of the plaintiffCs co.plaint ,ith costs a-ainst the.B 3. %he plaintiffs to =ointl+ pa+ 7ntervenors-co0nterclai.ants no, '%$ @0d-e 'odolfo S. La+0.as and $oraGon A. La+0.asA EaF P!;,;;;.;; for attorne+Cs feesB and cD$a%S E*F P4;,;;;.;; as .oral da.a-esB 4. %he plaintiffs, as co0nterclai. defendants, to co.pl+ ,ith the a*ove-stated o*li-ation of their late father, /r. @es0s /asc0Mana, 0nder the Deed of A*sol0te Sale, "2h. 141, pp. 83-84, "2p., thr0 plaintiff /r. @ose /asc0Mana, incl0din- the dese-ra-ation EsicF s0rve+ to dese-re-ate the 658-s>0are-.eter portion of said Lot (o. !36-B, San $arlos $adastre, this province, sold to the late Diosdado S0.ilhi-, if the sa.e has not +et *een done despite ,hat has *een said herein earlier to said effect, and the e2ec0tion of the Final Deed of Sale in their capacit+ as the heirs and s0ccessors-in-interest of the late /r. @es0s /asc0Mana, thr0 /r. @ose /asc0Mana, coverin- the 658-s>0are-.eter dese-re-ated portion of said Lot (o. !36-B, ,ithin si2t+ E5;F da+s co0nted fro. the finalit+ of this Decision, in favor of the 7ntervenors-spo0ses, after ,hich the said

7ntervenors-spo0ses shall pa+ the., thr0 /r. @ose /asc0Mana, the P!,;;;.;; *alance d0e to the. as s0ccessors-in-interest of the late /r. @es0s /asc0ManaB 6. 7n case plaintiffs fail to co.pl+ ,ith ,hat are herein ordered for the. to do, the $lerk of $o0rt H of this $o0rt to do all that the+ ,ere to do as herein ordered in the te2t and dispositive portion hereof, at the e2pense of 7ntervenors spo0ses to *e later rei.*0rsed *+ plaintiffs, incl0din- the dese-ra-ation EsicF s0rve+ of said 658-s>0are.eter portion of said Lot N(o.O !36-B, San $arlos $adastre, (e-ros &ccidental, if the sa.e has not +et *een done and the e2ec0tion of the Final Deed of Sale on *ehalf of all the plaintiffs as heirs and s0ccessors-in-interest of the late /r. @es0s /asc0Mana coverinthe said dese-re-ated portion of 658 s>0are .eters of the aforesaid lot, in favor of 7ntervenors spo0ses, to the end that separate title therefor .a+ *e iss0ed in their na.es, after the+ shall have paid the P!,;;;.;; *alance d0e plaintiffs 0nder said Deed of A*sol0te Sale, "2h. 14.1 S7c$%D S& &'D"'"D. 34 Forth,ith, the petitioners appealed the case to the $A, raisin- the follo,in- iss0es of fact and la,A a. Whether or not the contract of alienation of Lot (o. !36-B in favor of Diosdado S0.ilhi- in !85! ,as a contract to sell or a contract of saleB *. Whether or not Diosdado S0.ilhi- had an+ ri-ht to sell Lot (o. !36-B in favor of intervenor $oraGon La+0.as in !859. 36 &n /a+ :, 3;;4, the $A affir.ed the decision of the trial co0rt. 7t r0led that the contract *et,een the petitionersC father and S0.ilhi- ,as one of sale. Fore.ost, the $A e2plained, the contract ,as deno.inated as a 1Deed of A*sol0te Sale.1 %he stip0lations in the contract like,ise revealed the clear intention on the part of the vendor E/asc0ManaF to alienate the propert+ in favor of the vendee ES0.ilhi-F. 7n three vario0s doc0.ents, the late /asc0Mana even .ade declarations that S0.ilhi- ,as alread+ the o,ner of the disp0ted land. %he $A added that the ad.ission .a+ *e -iven in evidence a-ainst /asc0Mana and his predecessors-in-interest 0nder Section 35, '0le !4; of the 'evised '0les on "vidence. As to the ar-0.ent that the contract *et,een /asc0Mana and S0.ilhi- ,as not effective *eca0se it ,as s0*=ect to a s0spensive condition that did not occ0r, the $A r0led that the condition referred to *+ the petitioners refers onl+ to the pa+.ent of the *alance of the p0rchase price and not to the effectivit+ of the contract. As to the petitionersC contention that even if the contract ,ere one of sale, o,nership cannot *e transferred to S0.ilhi- *eca0se /asc0Mana ,as not +et the o,ner of the lot at the ti.e of the alle-ed sale, the appellate co0rt r0led that the re-istration of the land to *e sold is not a prere>0isite to a contract of sale. "7%caD %he Present Petition A--rieved, the petitioners filed the instant petition for revie, on certiorari ,ith this $o0rt, ,here the follo,in- lone le-al iss0e ,as raisedA WAS %D" SAL" &F L&% (&. !36-B /AD" BY @"S S /. /AS$ IA(A 7( FAH&' &F D7&SDAD& S /7LD7L A $&(%'A$% %& S"LL &' $&(%'A$% &F SAL"Q 3: We note that the ori-inal action of the petitioners a-ainst A>0ilino Barte ,as one for recover+ of possession of Lot (o. !36-B. With the intervention of the respondents 'odolfo and $oraGon La+0.as ,ho clai.ed o,nership over the propert+, and the ac>0iescence of the parties, evidence ,as add0ced to prove ,ho, *et,een the petitioners

Eas plaintiffsF and the respondents Eas defendants-intervenorsF ,ere the la,f0l o,ners of the s0*=ect propert+ and entitled to its possession. %he petitioners resol0tel+ contend that the Deed of A*sol0te Sale dated A0-0st !3, !85! *et,een their father and S0.ilhi- ,as a .ere contract to sell *eca0se at the ti.e of the said sale, the late /asc0Mana ,as not +et the re-istered o,ner of Lot (o. !36 or an+ of its portions. %he+ assert that S0.ilhi- co0ld not have ac>0ired an+ ri-hts over the lot d0e to the fact that a person can onl+ sell ,hat he o,ns or is a0thoriGed to sell, and the *0+er can ac>0ire no .ore than ,hat the seller can transfer le-all+. Finall+, the petitioners insist that the doc0.ent in controvers+ ,as s0*=ect to a s0spensive condition, not a resol0tor+ condition, ,hich is a t+pical attri*0te of a contract of sale. %he petition is denied for lack of .erit. %he iss0es raised *+ the petitioners in this case are fact0al, and 0nder '0le 6: of the '0les of $o0rt, onl+ >0estions of la, .a+ *e raised in this $o0rt, the reason *ein- that this $o0rt is not a trier of facts. 7t is not to re-e2a.ine the evidence on record and to cali*rate the sa.e. /oreover, the findin-s and concl0sions of the trial co0rt as affir.ed *+ the $A are concl0sive on the $o0rt, a*sent of an+ evidence that the trial co0rt, as ,ell as the $A i-nored, .isinterpreted and .isconstr0ed facts and circ0.stances of s0*stance ,hich, if considered, ,o0ld alter or reverse the o0tco.e of the case. 35 We have revie,ed the records and find no =0stification for a reversal or even a .odification of the assailed decision of the $A. 7ca"D$ "ven on the .erits of the petition, the $o0rt finds that the decision of the trial co0rt as ,ell as the r0lin- of the $A are *ased on the evidence on record and the applica*le la,. %he petitioners reiterated their pose that the deed of a*sol0te sale over the propert+ e2ec0ted *+ their father, @es0s /asc0Mana, as vendor, and Diosdado S0.ilhi- as vendee, ,as a contract to sell and not a contract of sale. %he+ assert that on its face, the contract appears to *e a contract to sell, *eca0se the pa+.ent of the P!,;;;.;; *alance of the p0rchase price ,as s0*=ect to a s0spensive conditionA the s0rve+ of the propert+, the se-re-ation of the portion thereof s0*=ect of the sale, and the co.pletion of the doc0.ents necessar+ for the iss0ance of a %orrens title over the propert+ to and in the na.e of S0.ilhi- ,ho ,as the vendee. %he petitioners assert that S0.ilhi- never paid the aforesaid a.o0nt to the vendorB hence, the o*li-ation of the latter and his predecessors-in-interest Eherein petitionersF to e2ec0te a final deed of sale never arose. As s0ch, the+ aver, title to the propert+ re.ained reserved in the vendor and his heirs even after his death. %here ,as no need for the vendor to rescind the deed or collect the said a.o0nt of P!,;;;.;; 0nder Article !!8! of the (e, $ivil $ode *eca0se s0ch a re.ed+ applies onl+ to contracts of sale. %he petitioners insist that S0.ilhi- never ac>0ired title over the propert+B he co0ld not have transferred an+ title to the respondents. S0.ilhico0ld not have transferred that ,hich he did not o,n. %he petitionersC contention has no fact0al and le-al *ases. %he deed of a*sol0te sale e2ec0ted *+ @es0s /asc0Mana and S0.ilhi-, provides, th0sA %hat the H"(D&' is the tr0e and a*sol0te o,ner of a parcel of land kno,n as Lot (o. !36 of the $adastral S0rve+ of San $arlos, sit0ated at Broce Street and is free fro. liens and enc0.*rances, and covered *+ &.$.%. (o. %-388N4O? E'-!6:4F of 'e-. of Deeds, (e-ros &cc. $D%S"7 %hat for and in consideration of the s0. of F& ' %D& SA(D S7# D (D'"D (7("%Y P"S&S EP6,58;.;;F, Philippine $0rrenc+, to *e paid *+ the H"(D"" in the

.anner hereinafter stated, the H"(D&' does here*+ sell, transfer, cede and conve+, a portion of the a*ove-descri*ed propert+ containin- an area of 658 s>0are .eters, the sketch of ,hich can *e fo0nd at the *ack of this doc0.ent and havin- a fronta-e at Broce Street of aro0nd !6 .eters, and fro. the Broce Street to the interior on its So0th,est side ,ith a len-th of 4;.8 .eters, ,ith a len-th of 36.9 .eters on its (ortheast side ,here it t0rned to the ri-ht ,ith a len-th of 3.9 .eters and contin0in- to (orth,est ,ith a len-th of 5.?3 .eters, the *ack+ard di.ension is !?.: .eters to the (orth,est, 0nto the H"(D"", his heirs and assi-ns, *+ ,a+ of A*sol0te Sale, 0pon the receipt of the do,n pa+.ent of %D'"" %D& SA(D S7# D (D'"D (7("%Y P"S&S EP4,58;.;;F, ,hich is here*+ ackno,led-ed *+ the H"(D&' as received *+ hi.. %hat the *alance of &(" %D& SA(D P"S&S EP!,;;;.;;F shall *e paid *+ the H"(D"" 0nto the H"(D&' as soon as the a*ove-portions of Lot !36 shall have *een s0rve+ed in the na.e of the H"(D"" and all papers pertinent and necessar+ to the iss0ance of a separate $ertificate of %itle in the na.e of the H"(D"" shall have *een prepared. %he evidence on record sho,s that d0rin- the lifeti.e of vendor @es0s /asc0Mana, and even after his death, his heirs, the petitioners herein, 0ne>0ivoca*l+ declared that Diosdado S0.ilhi- ,as the o,ner of the propert+ s0*=ect of this case, and that the respondents ac>0ired title over the propert+, havin- p0rchased the sa.e via a deed of a*sol0te sale fro. Diosdado S0.ilhi-. %h0s, on Dece.*er 4!, !85!, @es0s /asc0Mana and @ose "sta*illo e2ec0ted a Deed of "2chan-e and A*sol0te Sale of 'eal "state, in ,hich *oth parties declared that the+ ,ere co-o,ners of portions of Lot (o. !36 a*0tted *+ the propert+ o,ned *+ Diosdado S0.ilhi-. 3? 7n the s0*division plan of Lot (o. !36, si-ned *+ 'icardo K0ilop, Private Land S0rve+or, follo,in- his s0rve+ of Lot (o. !36 on @0l+ 8, !853 for and in *ehalf of @es0s /asc0Mana, et al., it appears that Lot (o. !36-B ,ith an area of :6; s>0are .eters *elon-ed to Diosdado S0.ilhi-, 39 ,hich is a*0tted *+ Lot (o. !36-$, o,ned *+ @es0s /asc0Mana. AD%"a7 &n &cto*er !, !89:, lon- after the death of @es0s /asc0Mana, one of his heirs, petitioner 'enee %edre,, thro0-h co0nsel, ,rote respondent 'odolfo La+0.as offerin- to *0+ the propert+ occ0pied *+ his overseer A>0ilino Barte for S<!,;;;.;;A A%%Y. '&D&LF& S. LAY /AS San $arlos $it+ (e-ros &ccidental Dear Att+. La+0.asA %his has reference to the lot located at Broce Street, portions of ,hich are presentl+ occ0pied *+ /r. Barte. /rs. 'enee %edre, Enee A-ap0+anF, ,ho is no, in the nited States, ,o0ld like to offer the a.o0nt of <!,;;;.;; to *0+ +o0r share of the said lot. 7f +o0 are a.ena*le, kindl+ infor. the 0ndersi-ned for hi. to co..0nicate N,ithO /rs. %edre, in $alifornia. Her+ tr0l+ +o0rs, ES-d.F SA/ "L S/ L"JA/A 38 7t ,as onl+ after the respondents re=ected the proposal of petitioner 'enee %edre, that the petitioners sec0red title over the propert+ on /arch !?, !895 in the na.e of @es0s

/asc0Mana Ealread+ deceased at the ti.eF, cancelin- %$% (o. 85? iss0ed on @0l+ 5, !853 0nder the na.e of @es0s /asc0Mana, ,ho appears to *e a co-o,ner of Lot (o. !36 ,ith an 0ndivided t,o-seventh E3P?F portion thereof. 4; While it is tr0e that @es0s /asc0Mana e2ec0ted the deed of a*sol0te sale over the propert+ on A0-0st !3, !85! in favor of Diosdado S0.ilhi- for P6,58;.;;, and that it ,as onl+ on @0l+ 5, !853 that %$% (o. 85? ,as iss0ed in his na.e as one of the co-o,ners of Lot (o. !36, Diosdado S0.ilhi- and the respondents nevertheless ac>0ired o,nership over the propert+. %he deed of sale e2ec0ted *+ @es0s /asc0Mana in favor of Diosdado S0.ilhion A0-0st !3, !85! ,as a perfected contract of sale over the propert+. 7t is settled that a perfected contract of sale cannot *e challen-ed on the -ro0nd of the non-transfer of o,nership of the propert+ sold at that ti.e of the perfection of the contract, since it is cons0..ated 0pon deliver+ of the propert+ to the vendee. 7t is thro0-h tradition or deliver+ that the *0+er ac>0ires o,nership of the propert+ sold. As provided in Article !6:9 of the (e, $ivil $ode, ,hen the sale is .ade thro0-h a p0*lic instr0.ent, the e2ec0tion thereof is e>0ivalent to the deliver+ of the thin- ,hich is the o*=ect of the contract, 0nless the contrar+ appears or can *e inferred. %he record of the sale ,ith the 'e-ister of Deeds and the iss0ance of the certificate of title in the na.e of the *0+er over the propert+ .erel+ *ind third parties to the sale. As *et,een the seller and the *0+er, the transfer of o,nership takes effect 0pon the e2ec0tion of a p0*lic instr0.ent coverin- the real propert+. 4! Lon- *efore the petitioners sec0red a %orrens title over the propert+, the respondents had *een in act0al possession of the propert+ and had desi-nated Barte as their overseer. Aa"$SD Article !6:9 of the (e, $ivil $ode providesA B+ the contract of sale, one of the contractin- parties o*li-ates hi.self to transfer the o,nership of and to deliver a deter.inate thin-, and the other to pa+ therefor a price certain in .one+ or its e>0ivalent. A contract of sale .a+ *e a*sol0te or conditional. %h0s, there are three essential ele.ents of sale, to ,itA aF $onsent or .eetin- of the .inds, that is, consent to transfer o,nership in e2chan-e for the priceB *F Deter.inate s0*=ect .atterB and cF Price certain in .one+ or its e>0ivalent. 43 7n this case, there ,as a .eetin- of the .inds *et,een the vendor and the vendee, ,hen the vendor 0ndertook to deliver and transfer o,nership over the propert+ covered *+ the deed of a*sol0te sale to the vendee for the price of P6,58;.;; of ,hich P4,58;.;; ,as paid *+ the vendee to the vendor as do,n pa+.ent. %he vendor 0ndertook to have the propert+ sold, s0rve+ed and se-re-ated and a separate title therefor iss0ed in the na.e of the vendee, 0pon ,hich the latter ,o0ld *e o*li-ed to pa+ the *alance of P!,;;;.;;. %here ,as no stip0lation in the deed that the title to the propert+ re.ained ,ith the vendor, or that the ri-ht to 0nilaterall+ resolve the contract 0pon the *0+erCs fail0re to pa+ ,ithin a fi2ed period ,as -iven to s0ch vendor. Patentl+, the contract e2ec0ted *+ the parties is a deed of sale and not a contract to sell. As the $o0rt r0led in a recent caseA 7n Di-nos v. $o0rt of Appeals E!:9 S$'A 4?:F, ,e have said that, altho0-h deno.inated a 1Deed of $onditional Sale,1 a sale is still a*sol0te ,here the contract is devoid of an+ proviso that title is reserved or the ri-ht to 0nilaterall+ rescind is stip0lated, e.-., 0ntil or 0nless the price is paid. &,nership ,ill then *e transferred to the *0+er 0pon act0al or

constr0ctive deliver+ Ee.-. *+ the e2ec0tion of a p0*lic doc0.entF of the propert+ sold. Where the condition is i.posed 0pon the perfection of the contract itself, the fail0re of the condition ,o0ld prevent s0ch perfection. 7f the condition is i.posed on the o*li-ation of a part+ ,hich is not f0lfilled, the other part+ .a+ either ,aive the condition or ref0se to proceed ,ith the sale. EArt. !:6:, $ivil $odeF A$7DSc %h0s, in one case, ,hen the sellers declared in a 1'eceipt of Do,n Pa+.ent1 that the+ received an a.o0nt as p0rchase price for a ho0se and lot ,itho0t an+ reservation of title 0ntil f0ll pa+.ent of the entire p0rchase price, the i.plication ,as that the+ sold their propert+. 7n PeopleCs 7nd0strial and $o..ercial $orporation v. $o0rt of Appeals, it ,as statedA A deed of sale is considered a*sol0te in nat0re ,here there is neither a stip0lation in the deed that title to the propert+ sold is reserved in the seller 0ntil f0ll pa+.ent of the price, nor one -ivin- the vendor the ri-ht to 0nilaterall+ resolve the contract the .o.ent the *0+er fails to pa+ ,ithin a fi2ed period. Appl+in- these principles to this case, it cannot *e -ainsaid that the contract of sale *et,een the parties is a*sol0te, not conditional. %here is no reservation of o,nership nor a stip0lation providin- for a 0nilateral rescission *+ either part+. 7n fact, the sale ,as cons0..ated 0pon the deliver+ of the lot to respondent. %h0s, Art. !6?? provides that the o,nership of the thin- sold shall *e transferred to the vendee 0pon the act0al or constr0ctive deliver+ thereof. 44 %he condition in the deed that the *alance of P!,;;;.;; shall *e paid to the vendor *+ the vendee as soon as the propert+ sold shall have *een s0rve+ed in the na.e of the vendee and all papers pertinent and necessar+ to the iss0ance of a separate certificate of title in the na.e of the vendee shall have *een prepared is not a condition ,hich prevented the efficac+ of the contract of sale. 7t .erel+ provides the .anner *+ ,hich the total p0rchase price of the propert+ is to *e paid. %he condition did not prevent the contract fro. *einin f0ll force and effectA %he stip0lation that the 1pa+.ent of the f0ll consideration *ased on a s0rve+ shall *e d0e and pa+a*le in five E:F +ears fro. the e2ec0tion of a for.al deed of sale1 is not a condition ,hich affects the efficac+ of the contract of sale. 7t .erel+ provides the .anner *+ ,hich the f0ll consideration is to *e co.p0ted and the ti.e ,ithin ,hich the sa.e is to *e paid. B0t it does not affect in an+ .anner the effectivit+ of the contract. . . . 46 7n a contract to sell, o,nership is retained *+ a seller and is not to *e transferred to the vendee 0ntil f0ll pa+.ent of the price. S0ch pa+.ent is a positive s0spensive condition, the fail0re of ,hich is not a *reach of contract *0t si.pl+ an event that prevented the o*li-ation fro. ac>0irin- *indin- force. 4: 7t *ears stressin- that in a contract of sale, the non-pa+.ent of the price is a resol0tor+ condition ,hich e2tin-0ishes the transaction that, for a ti.e, e2isted and dischar-es the o*li-ation created 0nder the transaction. 45 A seller cannot 0nilaterall+ and e2tra=0diciall+ rescind a contract of sale 0nless there is an e2press stip0lation a0thoriGinit. 7n s0ch case, the vendor .a+ file an action for specific perfor.ance or =0dicial rescission. 4? Article !!58 of the (e, $ivil $ode provides that in reciprocal o*li-ations, neither part+ inc0rs in dela+ if the other does not co.pl+ or is not read+ to co.pl+ in a proper .anner ,ith ,hat is inc0.*ent 0pon hi.B fro. the .o.ent one of the parties f0lfills his o*li-ation, dela+ *+ the other *e-ins. 7n this case, the vendor E@es0s /asc0ManaF failed to

co.pl+ ,ith his o*li-ation of se-re-atin- Lot (o. !36-B and the iss0ance of a %orrens title over the propert+ in favor of the vendee, or the latterCs s0ccessors-in-interest, the respondents herein. Worse, petitioner @ose /asc0Mana ,as a*le to sec0re title over the propert+ 0nder the na.e of his deceased father. 7( L7LD% &F ALL %D" F&'"L&7(L, the petition is D"(7"D for lack of .erit. $osts a-ainst the petitioners. 7cDDa% S& &'D"'"D. P0no, A0stria-/artineG, %in-a and $hico-(aGario, @@., conc0r.

[G.R. No. 1 !22.. O/tober 19, 200 .] 0E,,EL B)N0 ,H'L',,'NES, 'NC., petitioner, vs. ,H'L', )1)O, respondent. D"$7S7&( K 7S /B7(L, @ pA &n appeal is the Decision ! dated April 4;, 3;;4 of the $o0rt of Appeals in $A L.'. SP (o. ?!6??. %he $o0rt of Appeals affir.ed the Decision of the 'e-ional %rial $o0rt ,hich had earlier s0stained the Decision of the /etropolitan %rial $o0rt, dis.issin- the e=ect.ent case a-ainst respondent Philip Adao. %he case ste..ed fro. the co0rt-approved $o.pro.ise A-ree.ent *et,een petitioner Keppel Bank and Pro=ect /overs 'ealt+ and Develop.ent $orporation EP/'D$F. 3 B+ virt0e of the a-ree.ent, P/'D$ thro0-h its President /ario P. Hilla.or assi-ned, transferred and conve+ed to petitioner, *+ ,a+ of dacion en pa-o, 4 t,ent+-five properties consistin- of to,nho0ses, condo.ini0. 0nits and vacant lots, as partial settle.ent of their t,o h0ndred .illion pesos EP3;;,;;;,;;;F o0tstandin- o*li-ation. P0rs0ant thereto, petitioner sec0red $ondo.ini0. $ertificates of %itle over the 0nits. pon inspection, petitioner fo0nd respondent Philip Adao occ0p+in- nit 6 of the L02or Hillas %o,nho0se, one of the 3: properties a*ove-.entioned. &n Fe*r0ar+ !9, 3;;;, petitioner sent a ,ritten de.and to respondent to vacate the 0nit ,ithin 4; da+s fro. receipt of the notice. 'espondent ref0sed and, instead, offered to p0rchase the 0nit. Do,ever, the parties failed to reach an a-ree.ent on the .atter. a$%DDA &n &cto*er !8, 3;;;, petitioner sent respondent a final de.and to vacate. Since the de.and ,as not heeded, petitioner filed a civil case for e=ect.ent docketed as $ivil $ase (o. 98!! a-ainst respondent. 7n his defense, respondent alle-ed that he has lon- *een occ0p+in- the contested 0nit *+ virt0e of a $ontract to Sell 6 dated Fe*r0ar+ ?, !88: *et,een hi. and P/'D$. De stated that to avoid liti-ation, he offered to p0rchase the 0nit for 3.: .illion pesos, in addition to the 4 .illion pesos he alread+ paid to P/'D$. De added that had his pre-a-reed .arketin- services ,ith P/'D$ *een d0l+ a0dited to his credit, the 0nit ,o0ld have alread+ *een f0ll+ paid. 'espondent contended that petitionerCs re.ed+ is to de.and fro. P/'D$ the i..ediate replace.ent of the propert+ as provided in their $o.pro.ise A-ree.ent and Dacion en Pa-o. : &n A0-0st 5, 3;;!, the /e%$ dis.issed the co.plaint and held Adao as the la,f0l possessor of the propert+. Petitioner appealed to the 'e-ional %rial $o0rt, ,hich, on /arch 6, 3;;3, affir.ed in toto the /e%$ decision. 5 %he '%$ held that, *+ virt0e of the dacion en pa-o, petitioner .erel+ stepped into the shoes of P/'D$. Dence, petitioner .0st respect the contract to sell *et,een P/'D$ and respondent. 7t also held that petitioner failed to sho, non-pa+.ent *+ respondent, and that in case of non-pa+.ent, the re.ed+ of the vendor is either rescission ,ith recover+ of possession or specific perfor.ance *ased on *reach of contract, *0t not e=ect.ent. ? Petitioner .oved for reconsideration *0t it ,as denied on @0ne :, 3;;3. Petitioner elevated the case to the $o0rt of Appeals. %he appellate co0rt held that petitioner .0st respect the contract to sell tho0-h s0ch is not annotated in the certificate of title *eca0se petitioner ,as not a p0rchaser in -ood faith, havin- failed to e2ercise d0e

dili-ence re>0ired of *anks. As an 0npaid seller, petitioner can onl+ rescind the contract 0nder Article !:35 9 of the $ivil $ode ,hich does not sanction the filin- of an action for e=ect.ent. %he $o0rt of Appeals affir.ed the '%$ decision and, s0*se>0entl+, denied reconsideration. 7t decreed as follo,sA WD"'"F&'", pre.ises considered, the instant petition is D"(7"D. %he assailed /arch 6, 3;;3 decision of the '%$ is here*+ AFF7'/"D. 7S$D"% S& &'D"'"D. 8 Petitioner no, co.es *efore 0s and alle-es that the $o0rt of Appeals serio0sl+ erred ,henA i. . . . it r0led that the petitioner Bank .0st respect the ter.s and conditions of the $ontract to Sell alle-edl+ e2ec0ted on ;? Fe*r0ar+ !88: despite the fact that petitioner had no kno,led-e thereof and that said $ontract to Sell ,as not annotated on $$% (o. 8:33-' prior to the e2ec0tion of the co0rt-approved $o.pro.ise A-ree.ent and Dacion en Pa-o *et,een the petitioner and P/'D$. ii. . . . it affir.ed the findin- of the '%$ that respondent had f0ll+ paid the p0rchase price 0nder the $ontract to Sell on the *asis of respondentCs 0ns0*stantiated and -eneral alle-ation in his Ans,er ,ith $o.p0lsor+ $o0nterclai. and ,hen it shifted the *0rden of proof 0pon petitioner to prove that respondent had not f0ll+ paid the alle-ed p0rchase price. S0ch r0lin- contravenes the ,ell-settled le-al r0le that 1he ,ho alle-es .0st prove the sa.e.1 iii. . . . it affir.ed the r0lin- of the '%$ that the co.plaint for e=ect.ent filed *+ petitioner is not the proper re.ed+. iii.a %he '%$Cs s0--ested re.ed+, as affir.ed *+ the $o0rt of Appeals, of filin- an action for 1rescission ,ith recover+ of possession *ased on *reach of contract1 ,ron-f0ll+ pres0.es that the alle-ed $ontract to Sell is *indin- on the petitioner. iii.* %he '%$Cs s0--ested re.ed+, as affir.ed *+ the $o0rt of Appeals, is contrar+ to la, and =0rispr0dence *eca0se in a contract to sell, o,nership is retained *+ the seller 0ntil the *0+er has f0ll+ paid the p0rchase priceB iv. . . . it affir.ed the r0lin- of the '%$ that petitionerCs reco0rse .0st *e a-ainst P/'D$ andPor its President, /ario P. Hilla.or. %cD$D7 v. . . . it affir.ed the '%$Cs position that it ,as not d0t+-*o0nd to r0le on the iss0e of o,nership to settle the iss0e of possession and relied heavil+ on the alle-ed $ontract to Sell as the *asis of respondentCs ri-ht to possess the S0*=ect Propert+. !; 7n s0., the iss0es for o0r resol0tion areA E!F 7s petitioner *o0nd *+ the contract to sellQ E3F 7s the re.ed+ of e=ect.ent le-all+ availa*le to the petitionerQ and E4F Who is entitled to ph+sical possession of the propert+Q Petitioner contends he is not *o0nd *+ the contract to sell as it ,as not annotated in the certificate of title. 7t .aintains that the contract to sell specificall+ provides that title shall *e transferred to the respondent onl+ after f0ll pa+.ent of the p0rchase price. (ot havinf0ll+ paid the price, respondent is not the o,ner. Petitioner adds that respondent has the *0rden of provin- pa+.ent since 0nder the r0les on evidence, a part+ .0st prove his o,n affir.ative alle-ation. Petitioner also .aintains that P/'D$ .erel+ tolerated the possession *+ the respondent *0t s0ch possession *eca.e ille-al ,hen, as the ne, o,ner, it de.anded that respondent i..ediatel+ vacate the propert+. 'espondent co0nters that an e=ect.ent s0it is .erel+ concerned ,ith possession de facto and the iss0e of o,nership need not *e resolved. De clai.s to have a *etter ri-ht of

possession havin- f0ll+ paid the p0rchase price. F0rther, respondent asserts that petitioner, *ein- a s0ccessor-in-interest of P/'D$, is *o0nd *+ the $ontract to Sell. Finall+, respondent avers that e=ect.ent cases are -overned *+ the '0les on S0..ar+ Proced0re ,hich relies .erel+ on affidavits and position papers s0*.itted. Dence, his Affidavit !! dated @0ne 3:, 3;;! ,as s0fficient to prove f0ll pa+.ent. 7Sa$%" Prefatoril+, this case started ,ith a co.plaint for e=ect.ent filed ,ith the /e%$. 7n previo0s cases, this $o0rt consistentl+ held that the onl+ iss0e for resol0tion in an e=ect.ent case is ph+sical or .aterial possession of the propert+ involved, independent of an+ clai. of o,nership *+ an+ of the part+ liti-ants. !3 "=ect.ent cases are desi-ned to s0..aril+ restore ph+sical possession to one ,ho has *een ille-all+ deprived of s0ch possession, ,itho0t pre=0dice to the settle.ent of the partiesC opposin- clai.s of =0ridical possession in appropriate proceedin-s. !4 We also said that the >0estion of o,nership .a+ *e provisionall+ r0led 0pon for the sole p0rpose of deter.inin- ,ho is entitled to possession de facto. !6 'espondent *ases his ri-ht of possession on the $ontract to Sell. &n the other hand, petitioner ar-0es it is not *o0nd *+ the said contract since the sa.e is not annotated in the $ertificate of %itle. 7t is tr0e that persons dealin- ,ith re-istered propert+ can rel+ solel+ on the certificate of title and need not -o *e+ond it. !: Do,ever, as correctl+ held *+ the $o0rt of Appeals, this r0le does not appl+ to *anks. Banks are re>0ired to e2ercise .ore care and pr0dence than private individ0als in dealin- even ,ith re-istered properties for their *0siness is affected ,ith p0*lic interest. !5 As .aster of its *0siness, petitioner sho0ld have sent its representatives to check the assi-ned properties *efore si-nin- the co.pro.ise a-ree.ent and it ,o0ld have discovered that respondent ,as alread+ occ0p+in- one of the condo.ini0. 0nits and that a contract to sell e2isted *et,een respondent and P/'D$. 7n o0r vie,, petitioner ,as not a p0rchaser in -ood faith and ,e are constrained to r0le that petitioner is *o0nd *+ the contract to sell. (onetheless, in this case, the contract to sell does not *+ itself -ive respondent the ri-ht to possess the propert+. nlike in a contract of sale, here in a contract to sell, there is +et no act0al sale nor an+ transfer of title, 0ntil and 0nless, f0ll pa+.ent is .ade. %he pa+.ent of the p0rchase price is a positive s0spensive condition, the fail0re of ,hich is not a *reach, cas0al or serio0s, *0t a sit0ation that prevents the o*li-ation of the vendor to conve+ title fro. ac>0irin- an o*li-ator+ force. !? 'espondent .0st have f0ll+ paid the price to ac>0ire title over the propert+ and the ri-ht to retain possession thereof. 7n cases of non-pa+.ent, the 0npaid seller can avail of the re.ed+ of e=ect.ent since he retains o,nership of the propert+. %acAD" 'espondent avers that since e=ect.ent cases are decided .erel+ on the *asis of affidavits and position papers, his affidavit *efore the /e%$ s0fficientl+ proves his f0ll pa+.ent of the p0rchase price. (othin- co0ld *e .ore erroneo0s *eca0se even tho0-h e=ect.ent cases are -overned *+ the '0les on S0..ar+ Proced0re, there is still need to present s0*stantial evidence to s0pport respondentCs clai. of f0ll pa+.ent. Section 8 !9 of the '0les on S0..ar+ Proced0re provides that parties shall s0*.it, to-ether ,ith their position papers, the affidavits of their ,itnesses and other evidence on the fact0al iss0es defined. Dis lone affidavit is self-servin-, and cannot *e considered as s0*stantial evidence. As a -eneral r0le, one ,ho pleads pa+.ent has the *0rden of provin- it. "ven

,here the petitioner alle-ed non-pa+.ent, the -eneral r0le is that the *0rden rests on the respondent to prove pa+.ent, rather than on the petitioner to prove non-pa+.ent. !8 $onsiderin- that respondent failed to dischar-e the *0rden of provin- pa+.ent, he cannot clai. o,nership of the propert+ and his possession thereof ,as *+ .ere tolerance. Dis contin0ed possession *eca.e 0nla,f0l 0pon the o,nerCs de.and to vacate the propert+. 3; We stress, ho,ever, that this ad=0dication, is onl+ a provisional deter.ination of o,nership for the p0rpose of settlin- the iss0e of possession, 3! and does not *ar or pre=0dice an action *et,een the sa.e parties involvin- title to the propert+. 33 WD"'"F&'", the petition is L'A(%"D. %he Decision dated April 4;, 3;;4 of the $o0rt of Appeals in $A L.'. SP (o. ?!6?? is '"H"'S"D and S"% AS7D". 'espondent is here*+ ordered to vacate the propert+. DD%7Sa $osts a-ainst respondent. S& &'D"'"D. Davide @r., $.@., Ynares-Santia-o and AGc0na, @@., conc0r. $arpio, @., 7 took no part, 7 ,as a director of Keppel Banks.