FEDERICO N. RAMOS VS PATRICIO A.

NGASEO
FACTS:
Ramos went to Atty. Ngaseo to engage his services as
counsel in a case involving a piece of land. After the Court
of Appeals rendered a favorable judgment ordering the
land to be returned to Ramos and his siblings (such
decision having been final and executor), Atty. Ngaseo
sent a demand letter to Ramos asking for the delivery of a
piece of land which the complainant allegedly promised as
payment for respondents appearance fee.
As a result, Ramos filed before the IBP a complaint
charging Atty. Ngaseo of violation of the CPR for
demanding the delivery of a parcel of land, which was the
subject of litigation. The IBP found Atty. Ngaseo guilty. Atty.
Ngaseo argues that he did not violate Article 1491 CC
because when he demanded the delivery of the piece of
land, the case has been terminated, when the appellate
court ordered the return of the land to the family of Ramos.

Since such prohibition applies only if the sale or

assignment of the property takes place during the
pendency of the litigation involving the clients property.
Consequently, where the property is acquired after the
termination of the case, as in the instant case, no violation
of paragraph 5, article 1491 of Civil Code attatches.
In the instant case, there was no actual acquisition
of the property in litigation since the respondent only made
a written demand for its delivery, which the complainant
refused to comply. Mere demand for delivery of the
litigated property does not cause the transfer of
ownership, hence, not a prohibited transaction within the
contemplation of Article 1491.
Note: (Rationale for prohibition: Public policy disallows the
transactions in view of the fiduciary relationship involved)
BERNARDITA R. MACARIOLA vs. HONORABLE ELIAS
B. ASUNCION,

ISSUE:

FACTS:

Whether or not Atty. Ngaseo violated Art. 1491 CC.

Civil Case No. 3010 of the Court of First Instance of Leyte

was a complaint for partition filed by Sinforosa R. Bales,
Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes, and Priscilla Reyes, plaintiffs, against Bernardita
R. Macariola, defendant, concerning the properties left by
the deceased Francisco Reyes, the common father of the
plaintiff and defendant.

HELD: NO.
Under Par. (5), Art. 1491 of the Civil Code, lawyers
are prohibited from acquiring either by purchase or
assignment the property or rights involved which are the
object of litigation in which they intervene by virtue of their
public/judicial sales. The article provides:
Article 1491. The following persons cannot acquire by
purchase, even at a public or judicial action, either in
person or through the mediation of another: xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of
superior and inferior courts, and other officers and
employees connected with the administration of justice,
the property and rights in litigation or levied upon an
execution before the court within whose jurisdiction or
territory they exercise their respective functions; this
prohibition includes the act of acquiring by assignment and
shall apply to lawyers, with respect to the property and
rights which may be the object of any litigation in which
they may take part by virtue of their profession.
The prohibition in the aforesaid Article applies only to the
sale or assignment of the property which is the subject of
litigation to the persons disqualified therein. WE have
already ruled that "... for the prohibition to operate, the
sale or assignment of the property must take place during
the pendency of the litigation involving the property."

On June 8, 1963, a decision was rendered by respondent

Judge Asuncion in Civil Case 3010 which became final for
lack of an appeal, and on October 16, 1963, a project of
partition was submitted to Judge Asuncion.
One of the properties mentioned in the project of partition
was Lot 1184 and when the project of partition was
approved by the trial court the adjudicatees caused Lot
1184 to be subdivided into five lots denominated as Lot
1184-A to 1184-E. Lot 1184-E was sold on July 31, 1964 to
Dr. Arcadio Galapon. On March 6, 1965, Dr. Arcadio
Galapon and his wife Sold a portion of Lot 1184-E to
Judge Asuncion and his wife, Victoria S. Asuncion. On
August 31, 1966, spouses Asuncion and spouses Galapon
conveyed their respective shares and interest in Lot 1184E to "The Traders Manufacturing and Fishing Industries
Inc." with Judge Asuncion as the President and Mrs.
Asuncion as the secretary.
Macariola filed on August 9, 1968 the instant complaint
dated August 6, 1968 alleging that respondent Judge
Asuncion violated Article 1491, paragraph 5, of the New
Civil Code in acquiring by purchase a portion of Lot No.

1184-E which was one of those properties involved in Civil

Case No. 3010 decided by him.
ISSUE:
Whether or not the actuation of Judge Asuncion in
acquiring by purchase a portion of property in a Civil Case
previously handled by him violated the prohibition under
the Civil Code?
HELD: NO.
There is no merit in the contention of Macariola that
respondent Judge Elias B. Asuncion violated Article 1491,
paragraph 5, of the New Civil Code in acquiring by
purchase a portion of Lot No. 1184-E which was one of
those properties involved in Civil Case No. 3010. 'That
Article provides:
Article 1491. The following persons cannot acquire by
purchase, even at a public or judicial action, either in
person or through the mediation of another: xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of
superior and inferior courts, and other officers and
employees connected with the administration of justice,
the property and rights in litigation or levied upon an
execution before the court within whose jurisdiction or
territory they exercise their respective functions; this
prohibition includes the act of acquiring by assignment and
shall apply to lawyers, with respect to the property and
rights which may be the object of any litigation in which
they may take part by virtue of their profession.
The prohibition in the aforesaid Article applies only to the
sale or assignment of the property which is the subject of
litigation to the persons disqualified therein. WE have
already ruled that "... for the prohibition to operate, the
sale or assignment of the property must take place during
the pendency of the litigation involving the property."
In the case at bar, when the respondent Judge purchased
on March 6, 1965 a portion of Lot 1184-E, the decision in
Civil Case No. 3010 which he rendered on June 8, 1963
was already final because none of the parties therein filed
an appeal within the reglementary period; hence, the lot in
question was no longer subject of the litigation. Moreover,
at the time of the sale on March 6, 1965, respondent's
order dated October 23, 1963 and the amended order
dated November 11, 1963 approving the October 16, 1963
project of partition made pursuant to the June 8, 1963
decision, had long become final for there was no appeal
from said orders.
Furthermore, respondent Judge did not buy the lot in
question on

March 6, 1965 directly from the plaintiffs in Civil Case No.

3010 but from Dr. Arcadio Galapon who earlier purchased
on July 31, 1964 Lot 1184-E from three of the plaintiffs,
namely, Priscilla Reyes, Adela Reyes, and Luz R.
Bakunawa after the finality of the decision in Civil Case
No. 3010. It may be recalled that Lot 1184 or more
specifically one-half thereof was adjudicated in equal
shares to Priscilla Reyes,
Adela Reyes, Luz Bakunawa, Ruperto Reyes and
Anacorita Reyes in the project of partition, and the same
was subdivided into five lots denominated as Lot 1184-A to
1184-E. As aforestated, Lot 1184-E was sold on July 31,
1964 to Dr. Galapon for which he was issued TCT No.
2338 by the Register of Deeds of Tacloban City, and on
March 6, 1965 he sold a portion of said lot to respondent
Judge and his wife who declared the same for taxation
purposes only. The subsequent sale on August 31, 1966
by spouses Asuncion and spouses Galapon of their
respective shares and interest in said Lot 1184-E to the
Traders Manufacturing and Fishing Industries, Inc., in
which respondent was the president and his wife was the
secretary, took place long after thefinality of the decision in
Civil Case No. 3010 and of the subsequent two aforesaid
orders therein approving the project of partition.
The fact remains that respondent Judge purchased on
March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio
Galapon; hence, after the finality of the decision which he
rendered on June 8, 1963 in Civil Case No. 3010 and his
two questioned orders dated October 23, 1963 and
November 11, 1963. Therefore, the property was no longer
subject of litigation.
Consequently, the sale of a portion of Lot 1184-E to
respondent Judge having taken place over one year after
the finality of the decision in Civil Case No. 3010 as well
as the two orders approving the project of partition, and
not during the pendency of the litigation, there was no
violation of paragraph 5, Article 1491 of the New Civil
Code.
Finally, while it is true that respondent Judge did not
violate paragraph 5, Article 1491 of the New Civil Code in
acquiring by purchase a portion of Lot 1184-E which was
in litigation in his court, it was, however, improper for him
to have acquired the same.
In conclusion, while respondent Judge Asuncion, now
Associate Justice of the Court of Appeals, did not violate
any law in acquiring by purchase a parcel of land which
was in litigation in his court and in engaging in business by
joining a private corporation during his incumbency as
judge of the Court of First Instance of Leyte, he should be
reminded to be more discreet in his private and business

activities, because his conduct as a member of the

Judiciary must not only be characterized with propriety but
must always be above suspicion.
GAN TINGCO vs PABINGUIT
FACTS: Candida Acabo was the owner of six parcels of
land, all situated in the municipality of Jimalalud, Oriental
Negros. These lands were sold on June 12, 1911 by
Candida Acabo, to one Gan Tingco. But the purchaser
Gan Tingco was unable to take possession of the six
parcels of land sold him by Acabo, for they were in the
possession of Silvino Pabinguit, who alleges certain rights
therein. He claims to have purchased them from Faustino
Abad. Abad had become the owner through purchase from
Henry Gardner.
Prior to the purchase made by Garnder, a judgment has
been rendered against Ancabo as a result of the complaint
filed by Silvestre Basaltos. Because of Ancabos failure to
comply, her fixtures and other chattels were levied upon
the order of Gardner being the justice of peace.
Public auction sale was executed and Gardner appeared
to be the highest bidder and was the purchaser of Candida
Acabo's lands and carabaos sold at public auction held in
the barrio of Martelo, Municipality of Tayasan on March 20,
1907.
As Gardner subsequently learned that he was forbidden to
purchase, he sold what he had purchased to Faustino
Abad, Candida Acabo's son.
On June 19, 1907, Faustino Abad, for the sum of P375
sold to Silvino Pabinguit six parcels of land.
The Court of First Instance of Oriental NEgros rendered
judgment in behalf of the plaintiff, Gan Tingco, declaring
him the owner of the lands described in the complaint, and
ordered the defendant, Silvino Pabinguit, to restore the
plaintiff to their possession.
The defendant appealed, with the right to a review of the
evidence.
The appeal was heard by this court, it having been
brought it by bill of exceptions.
The appellant alleges that the trial court erred in holding
that, notwithstanding the sale of the lands in question at
public auction, Candida Acabo did not cease to be the
owner of these properties, because there were certain
irregularities and defects in the said auction.

ISSUE: WON Candida Acabo did not cease to be the

owner of the properties despite certain irregularities and
defects in the said auction.
HELD: The trial court was impressed by the circumstance
that in the public auction the purchaser was the justice of
the peace himself. This, in the judge's opinion, was
unauthorized, because article 1459, No. 5, of the Civil
Code, prohibits judges from acquring by purchase, even at
pub;ic or judicial sale, either in person or by an agent, any
property or rights litigated in the court in the jurisdiction or
territory within which they exercise their respective duties;
this prohibition includes taking of property by assignment.
The appellant alleges that the property purchased by
justice of the peace Gardner was not the subject of
litigation in the justice court; that the action was to recover
a certain sum of money, and that he had ordered the
property sold on execution.
This raises, therefore, a question as to the true meaning of
paragraph 5 of article 1459 of the Civil Code. law library
The Ley de Bases, in accordance with which the Civil
Code was enacted, provides as follows, in Base No. 26:
The forms, requirements and conditions of each particular
contract shall be determined and defined subject to the
general list of obligations and their effects, with the
understanding that the legislation in force and the legal
principles evolved therefrom by judicial decisions, etc.,
etc., shall serve as basis.
One of the bodies of law which conastitute the legislation
now in force in the Novisima Recopilacion. In Law 4, Title
14, Book 5 of the same is found the following provision:
"We order that in public auctions held by direction of our
alcaldes, neither the latter nor any person whomsoever in
their name shall bid in anything sold at such public
auctions." The word alcaldes means judges. The caption
of Title 14 is " Alcaldes or Provincial Judges," and the
entire title deals with the exercise of judicial jurisdiction.
Prior to the enactment of the Civil Code, the Penal Code
was also in force. Article 400 of the latter prohibits, under
penalty, any judge from taking part, either directly, or
indirectly, in any operation of exchange, trade or porfit with
respect to things not the product of his own property,
within the territory over which he exercises jurisdiction.
Judging from the legal precedents on which the Civil Code
is based, it would not seem too much to conclude that the
said article of the Civil Code does not make any distinction
between property in litigation. In effect, it appears to be as
delicate a matter for a judge to take part in the sale of
property that had been the subject of ligitgation in his
court, as to intervene in auction of property which, though
not directly litigated in his court, is nevertheless levied

upon and sold as the result of a writ of execution issued by

him. What the law intends to avoid is the improper
interference with an interest of a judge in a thing levied
upon and sold by his order.
If under the law Gardner was prohibited from acquiring the
ownership of Acabo's lands, then he could not have
transmitted to Faustino Abad the right of ownership that he
did not possess; nor could Abad, to whom this alleged
ownership had not been transmitte, have conveyed the
same to Pabinguit. What Gardner should have done in
view of the fact that the sale, as he finally acknowledged,
was void, was to claim the price that had been deposited
in court, and the justice of the peace of Guijulngan should
have declared the auction void and haveordered a new
sale to be held, besides correcting the errors that had
been committed in the proceedings. To the reasons
already stated, there is to be added the additional one,
with respect to the sale made by Faustino Abad to Silvino
Pabinguit, that Abad was a minor at the
time - a circumstance that deprived him of capacity to sell
(Civil Code,art. 1263). Abad had no ownership to transmit
to anyone and, besides, he had no personality to enable
him to contract by himself, on account of his lack of legal
age.This court finds no reason whatever why it should not
affirm the judgment appealed from.
LEON SIBAL , plaintiff-appellant,vs.EMILIANO J.
VALDEZ ET AL., defendants. VS.
EMILIANO J. VALDEZ, appellee.
Facts: As a first cause of action the plaintiff alleged that
the defendant Vitaliano Mamawal, deputy sheriff of the
Province of Tarlac, by virtue of a writ of execution issued
by the Court of First Instance of Pampanga, attached and
sold to the defendant Emiliano J. Valdez the sugar cane
planted by the plaintiff and his tenants on seven parcels of
land described in the complaint in the third paragraph of
the first cause of action; that within one year from the date
of the attachment and sale the plaintiff offered to redeem
said sugar cane and tendered to the defendant Valdez the
amount sufficient to cover the price paid by the latter, the
interest thereon and any assessments or taxes which he
may have paid thereon after the purchase, and the interest
corresponding thereto and that Valdez refused to accept
the money and to return the sugar cane to the plaintiff.
Plaintiff prayed that a writ of preliminary injunction be
issued against the defendant Emiliano J. Valdez his
attorneys and agents.The preliminary injunction was
granted The defendant Emiliano J. Valdez, in his amended
answer, denied generally and specifically each and every
allegation of the complaint and step up the following
defenses:
(a) That the sugar cane in question had the nature of

personal property and was not, therefore, subject to

redemption; The defendant Emiliano J. Valdez filed a
counter-claim.
Issue: Whether or not the sugar cane in question had the
nature of personal property.
HELD: The sugar cane in question had the nature of
personal property.
CIVIL CODE, JURISPRUDENCE
The first question raised by the appeal is, whether the
sugar cane in question is personal or real property. It is
contended that sugar cane comes under the classification
of real property as "ungathered products" in paragraph 2
of article 334 of the Civil Code. Said paragraph 2 of article
334 enumerates as real property the following: Trees,
plants, and ungathered products, while they are
annexed to the land or form an integral part of any
immovable property." That article, however, has received
in recent years an interpretation by the Tribunal Supremo
de Espaa, which holds that, under certain conditions,
growing crops may be considered as personal property.
(Decision of March 18, 1904, vol. 97, Civil Jurisprudence
of Spain.)
However, from the discussion of Manresa it appears (1)
that, under Spanish authorities, pending fruits and
ungathered products may be sold and transferred as
personal property; (2) that the Supreme Court of Spain, in
a case of ejectment of a lessee of an agricultural land,
held that the lessee was entitled to gather the products
corresponding to the agricultural year, because said fruits
did not go with the land but belonged separately to the
lessee; and (3) that under the Spanish Mortgage Law of
1909, as amended, the mortgage of a piece of land does
not include the fruits and products existing thereon, unless
the contract expressly provides otherwise.
An examination of the decisions of the Supreme Court of
Louisiana may give us some light on the question which
we are discussing. Article 465 of the Civil Code of
Louisiana, which corresponds to paragraph 2 of article 334
of our Civil Code, provides:
"Standing crops and the fruits of trees not gathered, and
trees before they are cut down, are likewise immovable,
and are considered as part of the land to which they are
attached."
The Supreme Court of Louisiana having occasion to
interpret that provision, held that in some cases "standing
crops" may be considered

and dealt with as personal property. In the case of Lumber

Co. vs. Sheriff and Tax Collector (106 La., 418) the
Supreme Court said:
"True, by article 465 of the Civil Code it is provided that
'standing crops and the fruits of trees not gathered and
trees before they are cut down . . . are considered as part
of the land to which they are attached, but the
immovability provided for is only one in abstracto and
without reference to rights on or to the crop acquired by
others than the owners of the property to which the crop is
attached. . . .
The existence of a right on the growing crop is a
mobilization by anticipation, a gathering as it were in
advance, rendering the crop movable quoad the right
acquired therein. Our jurisprudence recognizes the
possible mobilization of the growing crop."
From an examination of the reports and codes of the
State of California and other states we find that the settle
doctrine followed in said states in connection with the
attachment of property and execution of judgment is, that
growing crops raised by yearly labor and cultivation are
considered personal property.
Mr. Mechem says that a valid sale may be made of a
thing, which though not yet actually in existence, is
reasonably certain to come into existence as the natural
increment or usual incident of something already in
existence, and then belonging to the vendor, and then title
will vest in the buyer the moment the thing comes into
existence.
Things of this nature are said to have a potential
existence. A man may sell property of which he is
potentially and not actually possessed. He may make a
valid sale of the wine that a vineyard is expected to
produce; or the gain a field may grow in a given time; or
the milk a cow may yield during the coming year; or the
wool that shall thereafter grow upon sheep; or what may
be taken at the next cast of a fisherman's net; or fruits to
grow; or young animals not yet in existence; or the good
will of a trade and the like. The thing sold, however, must
be specific and identified. They must be also owned at the
time by the vendor. (Hull vs. Hull, 48 Conn., 250

Said section 450 enumerates the property of a judgment

debtor which may be subjected to execution. The pertinent
portion of said section reads as follows: "All goods,
chattels, moneys, and other property, both real and
personal, * * * shall be liable to execution. Said section
450 and most of the other sections of the Code of Civil
Procedure relating to the execution of judgment were
taken from the Code of
Civil Procedure of California. The Supreme Court of
California, under section 688 of the Code of Civil
Procedure of that state (Pomeroy, p. 424) has held,
without variation, that growing crops were personal
property and subject to execution.
CHATTEL MORTGAGE
Act No. 1508, the Chattel Mortgage Law, fully recognized
that growing crops are personal property. Section 2 of said
Act provides: "All personal property shall be subject to
mortgage, agreeably to the provisions of this Act, and a
mortgage executed in pursuance thereof shall be termed a
chattel mortgage." Section 7 in part provides: "If growing
crops be mortgaged the mortgage may contain an
agreement stipulating that the mortgagor binds himself
properly to tend, care for and protect the crop while
growing.
It is clear from the foregoing provisions that Act No. 1508
was enacted on the assumption that "growing crops" are
personal property. This consideration tends to support the
conclusion hereinbefore stated, that paragraph 2 of article
334 of the Civil Code has been modified by section 450 of
Act No. 190 and by Act No. 1508 in the sense that
"ungathered products" as mentioned in said article of the
Civil Code have the nature of personal property. In other
words, the phrase "personal property" should be
understood to include "ungathered products.

[40 Am. Rep., 165].)

We may, therefore, conclude that paragraph 2 of article

334 of the Civil Code has been modified by section 450 of
the Code of Civil Procedure and by Act No. 1508, in the
sense that, for the purpose of attachment and execution,
and for the purposes of the Chattel Mortgage Law,
"ungathered products" have the nature of personal
property. The lower court, therefore, committed no error in
holding that the sugar cane in question was personal
property and, as such, was not subject to redemption.

It is contended on the part of the appellee that paragraph

2 of article 334 of the Civil Code has been modified by
section 450 of the Code of Civil Procedure as well as by
Act No. 1508, the Chattel Mortgage Law.

NOTA BENE: In Sibal v. Valdez,10 the Court held that

pending crops which have potential existence may be the
valid subject matter of sale,and may be dealt with
separately from the land on which they grow.