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[No. 13125. February 11, 1919.]

ROSALIO BAUTISTA, plaintiff and appellee, vs.

FRANCISCO SIOSON ET AL,., defendants. RAYMUNDO
DE LA CRUZ, appellant.

1. VENDOR AND PURCHASER; SALE OF REALTY TO

DIFFERENT PERSONS; PREFERENCE.—In a case where
a real property has been sold two or three times to different
persons and the corresponding deeds of sale do not appear
to have been entered in the registry of property, the
question as to who is the lawful owner of such property, in
accordance with the provisions of article 1473 of the Civil
Code, should be resolved in favor of the purchaser who first
took possession of the property, pursuant to the provisions of
article 1462 of the same Code.

2. ID. ; ID. ; POSSESSION OF REALTY BY VENDOR AS

LESSEE.—In a case, which frequently occurs, where the
vendor, on the same date on which the deed of sale is
executed, by means of a constitutum possessorium
agreement converts himself into a tenant or lessee of the
property that he sold, and continues in possession thereof as
such tenant, the purchaser who acquired the property
through delivery or symbolic tradition, with all the
consequent effects of a deed of conveyance, is deemed to be
in possession thereof by the express will of the contracting
parties, and, therefore, it must be recognized that, through
such constitutum possessorium agreement, the purchaser,
who by that covenant became the lessor, is in lawful
possession of the leased property, and that the vendor, by
the same covenant, converted himself into the lessee and is
in material possession of the leased property in the name
and representation of the purchaser, its lawful owner.

3. ID.; ID.; ID.; RIGHT OF SECOND PURCHASER.—From

what has been said, it "logically follows that the second
purchaser who acquired the property from the lessee or
tenant and who, through the acts of the latter, entered into
the material possession of the property by virtue of the
second sale, could not have acquired any right of ownership
therein, inasmuch as he .received the property, not from its
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lawful owner, but from a mere tenant or lessee who had no

right whatever to dispose of it; therefore, the second
purchaser's possession is merely precarious and was taken
after the first purchaser had exercised his right of
possession, and the possession of the second purchaser
cannot prevail over that previously obtained by the first
purchaser.

APPEAL from a judgment of the Court of First Instance of

Rizal. Barretto, J.
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616 PHILIPPINE REPORTS ANNOTATED

Bautista vs. Sioson.

The facts are stated in the opinion of the Court.

Agapito Ignacio for appellant.
A. Cruz Herrera for appellee.

TORRES, J.:

This appeal through bill of exceptions was filed by counsel

for the defendant Raymundo de la Cruz from the judgment
of December 29, 1916, whereby the judge of the Court of
First Instance of Rizal held (1) that Rosalio Bautista, the
plaintiff, was by merger the owner of the properties
described in subparagraphs (a) and (b) of paragraph 2 of the
-complaint; (2) ordered Raymundo de la Cruz to deliver to
the plaintiff Bautista the camarín or warehouse, built of
strong materials, described in the subparagraph (a) above
mentioned; (3) ordered Francisco Sioson to pay to said
plaintiff Bautista the sum of P200, the amount of the rent
due; (4) absolved Francisco Santos Paulino from the
complaint, as the evidence did not show that he had taken
possession of the house described in said subparagraph (b);
and, finally (5) ordered each of the defendants Francisco
Sioson and Raymundo de la Cruz to pay one-half of the
costs. The appellant moved for a new trial, which motion
being denied, he entered an exception, and, upon filing the
proper bill of exceptions, the same was approved and
forwarded, together with a transcript of all the evidence, to
the office of the clerk of this court.
On June 30, 1916, counsel for the plaintiff filed a
complaint in the Court of First Instance of Rizal, in which
he alleged that on September 4, 1912, by virtue of a contract
of sale executed on September 4, 1912, between the plaintiff
Rosalio Bautista and the spouses Francisco Sioson and

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Lorenza de la Cruz, for the sale of a camarín or warehouse

of strong materials with an iron roof and a house of mixed
materials with a nipa roof—both buildings constructed on
lots situated in the town of Malabon, Rizal, and belonging to
the chaplaincy known by the name of Concepción—said
buildings were delivered to him on the date of the contract,

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Bautista vs. Sioson.

which was drawn up before a notary, under the condition

that the vendors might repurchase them within the term of
two years, counted from the date of the contract; that
immediately after the sale the plaintiff leased the purchased
buildings to said vendor spouses, who had not paid the price
of the lease, nor repurchased said buildings,
notwithstanding that the term of the contract had elapsed,
with the result that the other defendant Raymundo de la
Cruz was then (at the time of the filing of the complaint) in
material possession of said camarín under title of owner, and
Francisco Santos Paulino was in possession of the house,
also under a like title. Therefore he prayed the court to hold
that the plaintiff's ownership in said buildings was
consolidated, to order the defendants to deliver them to the
plaintiff, and to order Francisco Sioson to pay to the plaintiff
the price of the lease and to pay the costs.
The defendants Francisco Sioson and Francisco Santos
Paulino did not put in an appearance to answer the
complaint, notwithstanding that they were duly summoned.
They were therefore declared in default.
Counsel for the defendant Raymundo de la Cruz
admitted paragraphs 1 and 6 of the complaint, and denied
generally and specifically the other paragraphs thereof. In
special defense he alleged that the camarín described in
subparagraph (a), paragraph 2 of the complaint, was of the
exclusive ownership of the defendant Raymundo de la Cruz.
He theref ore asked that his client be absolved f rom the
complaint, with the costs against the plaintiff.
Upon the hearing of the case and the introduction of
evidence by the parties, the court decided the suit in the
manner aforesaid.
It now behooves us to determine who is the owner of the
camarín of strong materials with an iron roof, to which
reference is made in subparagraph (a) of paragraph 2 of the
complaint: Whether it belongs to Rosalio Bautista, in whose

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favor its ownership became consolidated by the lapse of the

term of two years without its having been repur-

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618 PHILIPPINE REPORTS ANNOTATED

Bautista vs. Sioson.

chased by the vendors; or to Raymundo de la Cruz, to whom

Francisco Sioson likewise sold the said camarín on August 5,
1914, one year and eleven months after the sale of this
building to the plaintiff Bautista, effected on September 4,
1912.
In order that the issue raised in this suit may be properly
decided we shall herein make a statement of the contracts
executed by and between the litigants.
On September 4, 1912, the defendant Francisco Sioson
and his wife Lorenza de la Cruz, through a notarial
instrument, sold to the plaintiff Rosalio Bautista the
camarín in question, besides some other property, under the
right of repurchase. It was stipulated that if within two
years from the date of the contract the vendors or their
successors in interest should not repurchase said properties
for the sum of P400, the price of the sale, such sale should
become absolute and thenceforth the ownership in the
properties sold should be consolidated, the execution of
another instrument being unnecessary. (Exhibit A, p. 10.)
On the same date, September 4, 1912, Rosalio Bautista,
through a notarial instrument, leased the properties sold to
him to the vendors Francisco Sioson and Lorenza de la
Cruz, for the price of P100 per annum, for the period of two
years counted from the date of the instrument. (Exhibit D, p.
15.)
On June 12, 1913, Lorenza de la Cruz died (sten. notes, p.
29) and on August 5, 1914, Francisco Sioson executed before
a notary a document by which he sold under right of
repurchase to the defendant Raymundo de la Cruz, the
camarín in question. It was stipulated in this instrument
that if within six months, counted from the 1st of August.
1914, the vendor Francisco Sioson should return to the
purchaser Raymundo de la Cruz the sum of P422, the price
of the purchase, then the purchaser Raymundo de la Cruz
would be obliged to execute in favor of said vendor Francisco
Sioson an instrument of resale, but that if within the period
mentioned he should not make the redemption stip-
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VOL. 39, FEBRUARY 11, 1919. 619

Bautista vs. Sioson.

ulated, said sale should become absolute, the execution of

another instrument being unnecessary. (Exhibit 1, p. 17.)
From the instrument referred to in the preceding
paragraphs it is concluded that the original owner of the
buildings in dispute, Francisco Sioson, and his wif e,
Lorenza de la Cruz, sold, on September 4, 1912, the house
and the camarín to the plaintiff Rosalio Bautista for P400,
under agreement of their resale within the term of two years
counted from said date; and that, on the same date, by
means of a constitutum possessorium agreement, and in
another new notarial instrument, the purchaser Bautista
leased the properties sold to the vendors Francisco Sioson
and Lorenza de la Cruz at an annual rent of P100, for a
period of two years counted from the date above mentioned.
After the lessee, Francisco Sioson, had been in possession
of the properties leased for one year and eleven months, he
sold the camarín, one of them, by virtue of a notarial
instrument to Raymundo de la Cruz, under the agreement
that if he did not redeem the camarín so sold within six
months from the 1st of August, 1914, and return the sum of
P422, such sale under right of repurchase should become
absolute, the execution of another instrument being
unnecessary.
As a result of the two said alienations, both set forth in
notarial instruments though not recorded in the registry of
property the issue raised and to be decided is, which of the
two purchasers, the plaintiff Bautista and the defendant
Cruz, is the lawful owner of the camarín successively sold to
the former and to the latter by the other defendant
Francisco Sioson, its original owner, in accordance with the
provisions contained in article 1473 of the Civil Code, the
last paragraph of which, among other things, prescribed:

"Should there be no entry, the property shall belong to the person

who first took possession of it in good faith * * *"

In view of the f act that the deed of sale executed by Fran-

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620 PHILIPPINE REPORTS ANNOTATED

Bautista vs. Sioson.

cisco Sioson, the owner of the camarín and' his wife, Lorenza
de la Cruz, on September 4, 1912, in favor of Rosalio
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Bautista, was not entered in the registry of property, and of

the further fact that, upon the execution of the second sale
of the same camarín by the said Sioson, which sale was
made after the death of his wife Lorenza by virtue of an
instrument dated August 5, 1914, in favor of Raymundo de
la Cruz, under agreement of repurchase for the price of
P422 the term of two years fixed for the redemption of the
camarín so sold had not yet expired, it may be presumed, in
the absence of proof to the contrary, that the second
purchaser Raymundo de la Cruz, on acquiring the camarín
of its original owner Francisco Sioson, who, according to the
written contract, became a tenant or lessee of the camarín,
was not aware of said first sale to Bautista, and believed
that Sioson, who was in possession off the camarín, was still
the owner thereof. Therefore, Cruz acted in good faith in
acquiring it, inasmuch as, through failure to enter the
property in the registry, there was no reason why the
previous alienation of the camarín should have been known.
But be all this as it may, nevertheless, the actual and
material possession of the camarín by Cruz does not
constitute a sufficient legal reason for holding that he has a
better right to the building than the first purchaser Rosalio
Bautista, although the latter was not in actual, physical,
and material possession of the camarín that he had
purchased. This conclusion is derived from a strict
application of the provisions of said article 1473 of the Civil
Code.
Both alienations, effected successively by Francisco
Sioson in favor of Bautista and Cruz, are recorded in
notarial instruments, though they were not entered in the
registry of property. To determine who is the lawful owner of
the camarín sold, if the provisions of said article of the Code
are to be observed, we have first to determine the contention
in regard to which of the two purchasers
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VOL. 39, FEBRUARY 11, 1919. 621

Bautista vs. Sioson.

is in possession thereof, and if, on the execution of the

contract of lease by the first purchaser in favor of the vendor
himself, the constitutum possessorium agreement is to be
considered to have been stipulated, the conclusion must
necessarily be reached as to which of the two purchasers
first took possession of the camarín sold, and also whether
the material possession of the tenant is of a precarious

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nature, enjoyed in the name and representation of the

owner Bautista.
Article 1462 of the Civil Code reads:

"A thing sold shall be considered as delivered, when it is placed in

the hands and possession of the vendee.
"When the sale should be made by means of a public instrument,
the execution thereof shall be equivalent to the delivery of the thing
which is the object of the contract, if in said instrument the contrary
does not appear or may be clearly inferred."

From the context of this article it is deduced that the

delivery or tradition of the thing sold may be real or actual,
and feigned. The execution of a public instrument
constitutes one of the kinds of symbolic tradition, but, in all
the different manners by which the thing sold may be
delivered, it is necessary that the record bear proof and that
it may be held that such delivery or tradition was
determined by the will of the parties to deliver and receive,
respectively, the thing that is the subject of the contract.
In the contract of lease (Exhibit D, record, p. 15) the
lessor, Rosalio Bautista, states that in his capacity as owner
he leased to the spouses Francisco Sioson and Lorenza de la
Cruz, among other properties, a camarín of strong material
with an iron roof, at an an. ual rent of P100, the lessees
binding themselves to report to the lessor any act of
disturbance committed by any other person, and all defects
that might be occasioned to the building. The execution of
this instrument of lease shows that the camarín
622

622 PHILIPPINE REPORTS ANNOTATED

Bautista vs. Sioson.

would be continued to be occupied by its previous owner and

vendor after it had been delivered, symbolically, by means
of the instrument executed for the purpose in favor of the
purchaser, in order that he might hold it in the capacity of
lessee, it being supposed, by a legal fiction, that the
purchaser entered into possession of the camarín sold, a
form of possession utilized by the purchaser by virtue of the
clause known in law as constitutum possessorium, stipulated
between the contracting parties.
So that, by the execution of the deed of sale of September
4, 1912, Rosalio Bautista entered into the material
possession under title of owner, of the camarín sold to him
by Francisco Sioson, and, by virtue of another instrument of

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lease, of the same date, the purchaser and owner of the

camarín conveyed and delivered this building to the lessee
in view of said contract. Under these perfectly legal
suppositions it is unquestionable that the purchaser Rosalio
Bautista was the first person who entered into the
possession of the camarín as soon as he acquired it by virtue
of said sale.
The material possession which the other defendant,
Raymundo de la Cruz, now enjoys, not only was subsequent
by one year and eleven months, but also, on the other hand,
is an unlawful possession which was transmitted to him by
Francisco Sioson, who held the camarín precariously and in
the capacity of tenant, and, consequently, without any right
whatever to convey to Raymundo de la Cruz the possession
under title of owner referred to in article 1473,
aforementioned of the Civil Code,
This article says: "If ther same thing should have been
sold to different vendees * * *;" but it must be understood
that said sale was made by its original owner. In the instant
case Francisco Sioson, on effecting the second sale in favor
of Raymundo de la Cruz, was in possession of the camarín
and occupied it, not in the capacity of owner, but in that of
lessee or tenant, and therefore absolutely had no right to
dispose of the building in the
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VOL. 39, FEBRUARY 11, 1919. 623

Bautista vs. Sioson.

capacity of owner thereof; consequently Sioson could not

convey to the second purchaser the lawful possession of the
disputed camarín.
After the foregoing elucidation of the main issue
submitted to this court f or decision, we deem it unnecessary
to pass upon the other issues relative to whether Francisco
Sioson could have sold, only after the death of his wife, the
said camarín to Raymundo de la Cruz, and whether the
price of the second sale was part of a larger sum that
pertained to the second purchaser, as proceeds derived from
the game of jueteng, inasmuch as, for the reasons above
stated, it has been shown that Raymundo de la Cruz could
not have acquired any right in the camarín involved in this
suit; for Francisco Sioson, who sold to Cruz, occupied it as a
mere tenant and not as owner, and, consequently, was
unable to transmit to the purchaser any property right
whatever nor lawful possession under title of owner.

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For all the foregoing reasons, whereby the errors

assigned to the judgment appealed from have been duly
refuted, said judgment, being in conformity with the
evidence of record, should be, as it hereby is, affirmed, with
the costs against the appellant Raymundo de la Cruz. So
ordered.

Arellano, C. J., Johnson, Araullo, Street, Avanceña, JJ.,

concur.

CARSON, J., dissenting:

I dissent. Manresa, in his commentaries, on article 1473 of

the Civil Code, clearly indicates that the possession referred
to in that article is the real, the physical possession of the
property; and certain it is that to hold that the possession
contemplated in this article may be secured without the
performance of some act which will give notice to innocent
subsequent purchasers, or of which subsequent purchasers
may inform themselves by due diligence tends to defeat the
just and equitable provisions of the law.
Judgment affirmed.
624

624 PHILIPPINE REPORTS ANNOTATED

Mitsui Bussan Kaisha vs. Manila E. R. R. & L. Co.

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