for boys was destroyed and it ceased to exist about the year 1915.
On one side of
ACQUISITION OF POSSESSION
65. G.R. No. L-40851 July 31, 1935
THE DIRECTOR OF LANDS, applicant-appellee,
vs.
THE ROMAN CATHOLIC BISHOP OF ZAMBOANGA, oppositor-appellant.
THE MUNICIPALITY OF MISAMIS, oppositor-appellee.
Evangelista and Santos for appellant.
Eugenio S. del Rosario for appellee.
IMPERIAL, J.:
In cadastral case No. 2 of Occidental Misamis, G.L.R.O. Record No. 1210, the Roman
Catholic Bishop of Zamboanga sought the registration in the name of the Roman
Catholic Apostolic Church of four (4) parcels of land, known as lots Nos. 1, 2, 3 and
4, and the improvements thereon, situated in the center of the town of the
municipality of Misamis. The Director of Lands claimed said properties alleging
them to be of the public domain, having been reserved for parks by virtue of the
Governor-General's Proclamation No. 360, dated February 7, 1931. The municipality
of Misamis likewise claimed lots No. 1, 2, and 3, and a southwestern portion of lot
No. 4, having an area of 5,539 square meters, alleging them to be public plazas.
After the necessary hearing wherein the parties presented their respective
evidence, the court rendered judgment ordering the registration of lot No. 4 with
the improvements thereon in favor of the Roman Catholic Bishop of Zamboanga
and the registration of lots Nos. 1, 2 and 3 in favor of the municipality of Misamis,
thereby overruling the claim of the Director of Lands. Only the Roman Catholic
Bishop of Zamboanga appealed.
The four lots are really only one parcel and are bounded on the four sides thereof
by Norte America, Ledesma, Washington and Commercial streets. These four
streets existed from time immemorial, although with different names. Said four lots
were already in the possession of the Roman Catholic Apostolic Church some years
prior to the year 1789, and the church, belfry and convert which served as dwelling
for the parish priests were built on lot No. 4. Heretofore its possession has been
quiet, open, public, continuous and under claim of ownership. The land identified as
lot No. 1 always formed part of lot No. 4. The so-called lot No. 2 was occupied by
nobody except the church through its parish priests, until the local authorities
converted it into an extension of Mabini Street which terminated at Norte America
Street. As to lot No. 3, it has always been in the possession of the church but it was
occupied by two schools for children of both sexes during the Spanish regime. The
girl's school was destroyed upon the arrival of the Americans and the other school
this land the municipal authorities succeeded in erecting a monument of Rizal,
which still stands.
The possession by the Roman Catholic Apostolic Church of the lands in dispute for a
period of about a century and a half, under the conditions above stated, can mean
nothing more than that said lands were designated by the State itself to be devoted
to the building of the church, belfry and convent for the purpose of implanting the
Roman Catholic Apostolic Religion and maintaining the cult thereof.
In the case of Barlin vs. Ramirez and Municipality of Lagonoy (7 Phil., 41 et seq.),
this court said:
(2) The municipality of Lagonoy, in its answer, claims as such, to be the owner of
the property. As we have said before, the evidence shows that it never was in the
physical possession of the property. But waiving this point and assuming that the
possession of Ramirez, which he alleges in his answer is the possession of the
municipality, gives the municipality the rights of a possessor, the question still
arises, Who has the better right to the present possession of the property? The
plaintiff, in 1902, had been in the lawful possession thereof for more than thirty
years and during all that time its possession had never been questioned or
disturbed. That possession has been taken away from it and it has the right now to
recover the possession from the persons who have so deprived it of such
possession, unless the latter can show that they have a better right thereto. This
was the proposition which was discussed and settled in the case of the Bishop of
Cebu vs. Mangaron, No. 1748 (6 Phil., 286, decided June 1, 1906). That decision
holds that as against one who has been in possession for the length of time the
plaintiff has been in possession, and who has been deprived of his possession, and
who cannot produce any written evidence of title, the mere fact that the defendant
is in possession does not entitle the defendant to retain that possession. In order
that he may continue in possession, he must show a better right thereto.
The evidence in this case does not show that the municipality has, as such, any right
whatever in the property in question. It has produced no evidence of ownership. Its
claim of ownership is rested in its brief in this court upon the following
propositions: That the property in question belonged prior the Treaty of Paris to the
Spanish Government; that by the Treaty of Paris the ownership thereof passed to
the Government of the United States; that by section 12 of the Act of Congress of
July 1, 1902, such property was transferred to the Government of the Philippine
Islands, and that by the circular of that Government, dated November 11, 1902, the
ownership and the right to the possession of this property passed to the
municipality of Lagonoy. If, for the purposes of the argument, we should admit that
the other propositions are true, there is no evidence whatever to support the last
proposition, namely that the Government of the Philippine Islands has transferred
the ownership of this church to the municipality of Lagonoy. We have found no
circular of the date above referred to. The one of February 10, 1903, which is
probably the one intended, contains nothing that indicates any such transfer. As to
the municipality of Lagonoy, therefore, it is very clear that it has neither title,
ownership, nor right to possession.
(3) We have said that it would have no such title or ownership even admitting that
the Spanish Government was the owner of the property and that it passed by the
Treaty of Paris to the American Government. But this assumption is not true. As a
matter of law, the Spanish Government at the time the treaty of peace was signed,
was not the owner of this property, nor of any other property like it, situated in the
Philippine Islands.
It does not admit of doubt that from the earliest times the parish churches in the
Philippine Islands were built by the Spanish Government. Law 2, title 2, book 1, of
the Compilation of the Laws of the Indies is, in part, as follows:
"Having erected all the churches, cathedrals, and parish houses of the Spaniards
and natives of our Indian possessions from their discovery at the cost and expense
of our royal treasury, and applied for their service and maintenance the part of the
tithes belonging to us by apostolic concession according to the division we have
made."
The syllabus of the case of the Roman Catholic Apostolic Church vs. Municipality of
Placer (11 Phil., 315), reads:
ROMAN CATHOLIC CHURCH PROPERTY; OWNERSHIP. — On the authority of the
Municipality of Ponce vs. Roman Catholic Apostolic Church in Porto Rico, decided by
the United States Supreme Court June 1, 1908; Held, That under the Spanish law
heretofore existing in these Islands and the provisions of the treaty of Paris, the
Roman Catholic Apostolic Church is the owner of a church building, convent, and
cemetery, and that the municipality wherein the same are situated has no right of
ownership therein by reason of funds or land contributed for the foundation or
erection thereof.
In the case of the Roman Catholic Apostolic Church vs. Municipalities of Caloocan,
Morong and Malabon, of the Province of Rizal (12 Phil., 639 et seq.), this court in
analyzing the laws governing the temporal properties of the church in these Islands
again stated:
The evidence discloses, beyond peradventure of doubt, that the plaintiff had been
in the quiet and peaceable possession of the different parcels of property, with
reference to which evidence was presented, for a period immemorial, until some
time between the years 1896-1899, when they were molested in their possession
and deprived of the same by some of the defendants. This court has repeatedly
decided that where a person has been in the long possession or real property and
has been deprived of the possession thereof, he may recover it as against one in
possession, unless the latter can show a better right thereto. (Bishop of Cebu vs.
Mangaron, 6 Phil., 286; Barlin vs. Ramirez, 7 Phil, 41; Roman Catholic Apostolic
Church vs. Santos, 7 Phil., 66; City of Manila vs. Roman Catholic Apostolic Church, 8
Phil., 763; Roman Catholic Apostolic Church vs. Municipality of Tarlac, 9 Phil, 450;
Roman Catholic Apostolic Church vs. Certain Municipalities, etc., 10 Phil., 1; Roman
Catholic Apostolic Church vs. Municipality of Badoc, 10 Phil., 659; Roman Catholic
Apostolic Church vs. Municipality of Cuyapo, 9 Phil., 457; Roman Catholic Apostolic
Church vs. Certain Municipalities, etc., 9 Phil., 691.)
xxx xxx xxx
In the case of the Roman Catholic Apostolic Church vs. Municipality of Placer (11
Phil., 315), the facts therein being very analogous to the facts in the present case,
this court followed the said decision of the Supreme Court of the United States,
holding that, under the Spanish law heretofore existing in these Islands, and the
provisions of the Treaty of Paris, the Roman Catholic Apostolic Church is the owner
of the church buildings, convents, and cemeteries and the municipalities wherein
the same are situated have no right of ownership therein by reason of funds or
lands contributed for the foundation or erection thereof.
Our attention has not been called to any express granted or grants of land by the
Crown of Spain for the purposes of the church upon which particular churches were
erected, and it is believed that, during the early history of the sovereignty of Spain
in the Indies, no such grants can be found, but no fact is better established in both
secular and ecclesiastical history than the fact that the Crown of Spain and the Pope
always cooperated from the very earliest history of the possession of the Indies in
the extension of the great benefits offered by the Roman Catholic Apostolic Church
to the Indio, as well as to the peoples of Europe. If any difference whatever existed
in the efforts thus made in the great interest which the church took in the different
peoples, it was in favor of the Indio. Scarcely had the Indies been discovered until
the Pope and the Crown of Spain began to manifest a deep interest in the religious
and educational welfare of the people of the Indies. (Bula de Alejandro VI of the 4th
of May, 1493; also the Bula of 16th of December, 1501; Ordenanza 5 (a) por el
Consejo de Las Indias, 1575; law 10, title 1, book 1 of Laws of the Indias, of the 1st
of June, 1574; law 14, title 2, book 1 of the Laws of the Indias, and many others, the
collection of which may be found in vol. 7 of Legislacion Ultramarina, p. 476.)
From the reading of these various bulas and royal decrees and ordenanzas, it will be
seen that the government and the church were constantly working together for the
advancement of the religious and educational welfare of the Indios. The
government lent its most enthusiastic support to the efforts that were made by the
church in this regard, even to the extent of paying out of the public exchequer,
funds, together with funds contributed by the encomenderos and the people of
the pueblos, for the purpose of erecting the magnificent Catholic churches existing
everywhere throughout the Spanish island possessions. While the Crown of Spain
always reserved a certain control over the operations of the Catholic Church, yet no
one can doubt that, when these lands were donated or designated and the church
edifices were erected thereon, it was the intention of the Crown that such lands
and such edifices should be devoted absolutely to the use of the church. It is a well-
known fact that, when a church edifice of the Roman Catholic Apostolic Church was
once accepted and dedicated for religious purposes, it thereafter could never be
used for any other purpose. The Catholic Church certainly had a right to believe at
least that, during the three hundred years or more that it occupied its churches in
the Philippine Islands, without protest or objection on the part of the Crown of
Spain, the Crown had intended at least that they should become the absolute
owners of such properties. And no protest has been called to our attention during a
time immemorial and no protest or objection by the different pueblos to the right
of ownership which the church has exercised for from two to three hundred years
over the properties upon which the edifices of the Roman Catholic Apostolic Church
were erected. Not only is it believed that the Crown of Spain intended that the
Roman Catholic Apostolic Church should exercise absolute dominion over such
properties, but under the treaty of Paris the Government of the United States
obligated itself to protect all such interests. The Roman Catholic Apostolic Church
occupied the different properties in question in this case for a time so long that no
one in the pueblos could remember when such properties were not occupied and
used for the benefit of said church, until about the years 1896-99. The occupancy of
property for from two to three hundred years without protest of any kind whatever
from the donors would seem at least two be sufficient time, in the absence of
positive proof to the contrary, that such donation was made for the purpose of
transferring to the donee all rights and interests in such property.
Therefore, adhering to and following the decision of the Supreme Court of the
United States in the case of the Municipality of Ponce vs. Roman Catholic Apostolic
Church in Porto Rico (28 Sup. Ct. Rep., 737; 6 Off. Gaz., 1213) and the decision of
this court in the case of the Roman Catholic Apostolic Church vs. Municipality of
Placer, supra, we do hereby find that the plaintiff herein is entitled to the right of
possession and ownership of the following properties:
La visita de Dampalit;
La visita de Ningan;
La visita de Catmon;
La visita de Tinajeros;
La visita de Maysilo;
La visita de Matahong;
La visita de Muson;
La visita de Julong-Dujat,
each situated in barrios of the same names, in the pueblo of Malabon, Province of
Rizal; and also to the right of possession and ownership of the cementerio of
the pueblo of Morong and the cementerio of Cardona in thepueblo of Morong.
The circumstance that public schools for children of both sexes were erected on lot
No. 3 during the Spanish regime is not conclusive evidence that the land was
segregated from the great portion thereof designated for the Roman Catholic
Apostolic Church and its cults particularly it we take into account the fact that
primary instruction was then under the direct supervision of the parish priests who
received subsidy from the government.
In the case of the Municipality of Nueva Caceres vs. Director of Lands and Roman
Catholic Bishop of Nueva Caceres (24 Phil., 485 et seq.), it was stated:
Therefore, it will be seen from a reading of the above royal decrees and regulations
governing the primary instruction of the boys, that boys' schools were under the
direction and control of both the church and the state. It was only natural that the
schools of the church should be governed by the general laws regulating primary
instruction inasmuch as all the schools were under its supervision; and as by
throwing open the school to the public, boys generally would be instructed in the
faith, it was to the advantage of the church to make its schools as public as possible.
So, the fact that the Government intervened in the administration of the school in
no way tends to show or prove that the church had ceded the building or the lot in
question to either the local or central government of Spain in the Philippines. On
the contrary, it would have been highly unreasonable that such should have been
the case, for the church is very jealous of its property and especially of its
educational institutions for the instruction of the young, and especially of a lot and
building which faced its cathedral in Nueva Caceres and adjoined the same lot on
which its seminary for the instruction of aspirants to the priesthood was built. In
fact, there is no doubt that until the revolution and separation of church and state,
brought about by the advent of American sovereignty, the church was in possession
of the school in question, considering it as its own exclusive property.
Neither does the existence of a monument of Rizal on said land prove the
ownership of the municipality of Misamis, nor can the recent occupation thereof be
invoked as a title thereto. It should be interpreted as a tolerated possession in
accordance with articles 444 and 447 of the Civil Code which in no way can be made
the basis for the adjudication of a title.
The circumstance that these lands have been reversed for park purposes by
Proclamation No. 360, dated February 7, 1931, is of no importance. Inasmuch as
they were not public lands, lands of the public domain or lands particularly
belonging to the Government, but properties of private ownership, they could not
be lawfully segregated in order to be converted into public parks.
As stated in the beginning, the court found that lots Nos. 1, 2 and 3 are public
plazas, as claimed by the municipality of Misamis, and decreed the registration
thereof in the name of the said municipality. This decree is untenable. If they are
public plazas they are not susceptible or registration in the name of any branch of
the State. (Nicolas vs. Jose, 6 Phil., 589; Harty vs. Municipality of Victoria, 13 Phil.,
152; 226 U.S., 12; 57 Law. ed., 103.)

For the foregoing considerations, and without the necessity of passing upon the
various assignments of error of the appellant separately, the appealed judgment is
reversed and it is ordered that the registration of lots Nos. 1, 2, 3 and 4 with the
improvements thereof, except the Rizal monument, be decreed in favor of the
Roman Catholic Bishop of Zamboanga, without costs. So ordered.

Malcolm, Villa-Real, Butte, and Goddard, JJ., concur.

66. G.R. No. L-14869 October 27, 1920 their respective witnesses. Each endeavored to prove title by possession, best
understood by the following table:
THE DIRECTOR OF LANDS, applicant-appelle,
vs.
Parcel No. Oppositor. Possession Acts of possession
THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, objector-appellant.
began
JUSTA DE GUZMAN, ET AL., objectors-appellees.

Hartigan and Welch for appellant. 2176, 2191, Justa de Guzman 1895 Planted rice; paid
Gregorio C. Concepcion for appellees. 2182 taxes

2178, 2180, Melecio S. 1882 Planted rice

MALCOLM, J.:
In 1913, cadastral proceedings were begun to settle the title to a considerable tract
of land situated in the Province of Rizal. Thirteen of the cadastral lots were claimed
by the municipality of Cainta, Province of Rizal, the Roman Catholic Archbishop of
Manila, and various private individuals. The judgment of the trial court adjudicated
the parcels in question to the private claimants. From this judgment both the
Roman Catholic Archbishop of Manila and the municipality of Cainta appealed, but
subsequently the appeal of the latter wad dismissed for failure to prosecute. The
contest has thus narrowed down to one between the Church as appellant and
various individuals as appellees.
A ruling as to four of the lots can quickly be made. By stipulation during the trial,
and by admission of counsel for appellant, Policarpio Buenviaje is conceded to have
title to lot 2187. As to lot 2186, the only evidence before us, confirmed by the
findings of the trial court, is, that Mamerta Roxas went into possession of the same
in 1895; and when counsel for the Church made his offer to present rebuttal
testimony, he failed to mention this lot. Likewise, as to lots 2213 and 2214, the only
evidence before us, confirmed by the findings of the trial court, is, that Antonio,
Benito, and Gervasio dela Paz went into possession of the same in 1896; the record
states that "ambas partes dan por terminadas sus pruebas," while counsel for the
Church in making his offer of rebuttal testimony again failed to include these two
lots.
2190 Buenaventura
2184, 2185 Justo S. Buenaventura 1885 Cultivation and
harvest
2192 Justo Javier 1885 Planted rice;
harvested.
Counsel for the Church, thereupon, made an offer to present additional testimony
with reference to lots 2176, 2178, 2180, 2182, 2184, 2185, 2190, 2191, and 2192, or
the lots above enumerated in the table. Three witnesses were called to the stand,
but each time, before any pertinent testimony could be secured from them, an
objection was made by counsel for the oppositors that the proof related to the
evidence in chief of the Church, and this was sustained by the court.
To resolve the facts into their simplest terms, it is evident that when an admission
was made of the royal title, the Church had shown that it was the legitimate owner
of the land to which it refers. The most perfect title could, however, be lost by
abandonments. When, therefore, the private oppositors showed possession for the
prescriptive period, they had made their case, and the burden of proof had shifted.
To overcome this burden, it was then incumbent upon the Church to demonstrate
that such possession had been interrupted, or that it was merely possession
through the tolerance of the Church.

A more difficult situation has arisen with reference to the nine remaining cadastral
lots. To understand it, a brief narration of the course of the proceedings in the trial
court will have to be made.
The trial as to the land now before us opened with a stipulation to the effect that
the composition title of the Church with the spanish Government included this land.
The Church presented one witness and rested. The private oppositors then called
This brings us to the specific consideration of assignment of error No. 2 of the
appellant to the effect that the court erred in refusing to admit evidence tendered
by this claimant and appellant in answer to rival claims. A correct ruling can most
appropriately be arrived at by a consideration of the nature of cadastral
proceedings, with reference to the usual rules of trial practice and evidence.
The object of a cadastral petition, as all know, is that the title to the various lots
embraced in the survey may be settled and adjudicated. It is in the nature of a
proceeding in rem, promoted by the Director of Lands, somewhat, akin to a judicial 2190, 2191, and 2192, it is reversed, and the record shall be returned to the lower
inquiry and investigation leading to a judicial decree. In one sense, there is no court for the taking of additional evidence under the offer of counsel for the Church
plaintiff and there is no defendant. In another sense, the Government is the plaintiff found on page 83 of the stenographic notes. No finding as to costs is made in this
and all the claimants are defendants. (Act No. 2259, sec. 10.) The trial is conducted instance. So ordered.
in the same manner as ordinary trials and proceedings in the Court of Land
Registration. (Sec. 11.) As to this court, now abolished, the Land Registration Act
provides that it "shall conform, as near as may be, to the practice in special
proceedings in courts of first instance." (Act No. 496, sec. 2) The Code of Civil
Procedure, which is thus brought into relation with the Cadastral Act, prescribes the
order in which the trial must proceed. (Secs. 56, 132). The usual rules of practice,
procedure, and evidence govern registration proceedings.

Obviously, orderly procedure must be followed if injurious surprises and annoying

delays in the administration of justice are to be avoided. Evidence cannot be given
piecemeal. The strict rule is that the plaintiff must try his case out when he
commences. Nevertheless, a relaxation of the rule is permitted in the sound
discretion of the court. "The proper rule for the exercise of this discretion," it has
been said by an eminent author, "is, that material testimony should not be
excluded because offered by the plaintiff after the defendant has rested, although
not in rebuttal, unless it has been kept back by a trick, and for the purpose of
deceiving the defendant and affecting his case injuriously." (1 Thompson on Trials,
sec. 346.)1awph!l.net

These principles find their echo in Philippine remedial law. While the general rule is
rightly recognized, the Code of Civil Procedure authorizes the judge "for special
reasons," to change the order of the trial, and "for good reason, in the furtherance
of justice," to permit the parties "to offer evidence upon their original case." (Sec.
132.) These exceptions are made stronger when one considers the character of
registration proceedings and the fact that where so many parties are involved, and
action is taken quickly and abruptly, conformity with precise legal rules should not
always be expected. Even at the risk of violating legal formulæ, an opportunity
should be given to parties to submit additional corroborative evidence in support of
their claims of title, if the ends of justice so require. (Rodriquez vs. Director of Lands
[1915], 31 Phil., 272; Government of the Philippine Islands vs. Abural [1919], 39
Phil., 996.)

We believe that the offer of counsel for the Church could property be classified as
evidence in denial of an affirmative fact; but that even if not technically rebuttal
evidence, yet in the interest of justice and the ascertainment of the truth it should
be received. Whether such evidence would be sufficient to overcome the case
which exists in favor of the claimants of the nine lots cannot now be determined.

In so far as the judgment relates to lots No. 2186, 2187, 2213, and 2214, it is
affirmed, and in so far as it relates to lots Nos. 2176, 2178, 2180, 2182, 2184, 2185,
67. G.R. No. L-22984 March 27, 1968
MARGARITO SARONA, ET AL., plaintiffs-appellants,
vs.
FELIPE VILLEGAS and RAMONA CARILLO, defendants-appellees.
Aportadera & Palabrica for plaintiffs-appellants.
Castillo Law Offices for defendants-appellees.
SANCHEZ, J.:
The key question thrust upon us is whether the present is a case of forcible
entry or one of unlawful detainer.
The problem arose because on January 28, 1963, plaintiffs lodged with the
Municipal Court of Padada, Davao, against defendants as complaint, styled
"Unlawful Detainer." 1 They there aver that they are the absolute owners and in
possession of a parcel of land in Paligue, Padada. Their complaint then proceeds to
recite:
3. That on April 1, 1958, defendants entered upon said land Lot "F"
constructed their residential house thereon and up to date remain in possession
thereof, unlawfully withholding the possession of the same from the plaintiffs;
4. That the reasonable rental for said Lot is P20.00 per month;
5. That on December 28, 1962, plaintiffs demanded of defendants to vacate
the premises and to pay the rentals in arrears but then defendants failed to do so;
that defendants' possession thus became clearly unlawful after said demand;
xxx xxx xxx
They asked that they be restored into possession, and that defendants be
made to pay rents, attorneys' fees, expenses of litigation, and costs.
Defendants met the complaint with a motion to dismiss on the sole ground of
lack of jurisdiction of the municipal court. They say that the case is one of forcible
entry, and the reglementary one-year period had elapsed before suit was started.
The municipal court overturned the motion to dismiss.
On May 15, 1963, defendants registered their answer. They reiterated the
court's lack of jurisdiction, and by way of affirmative defenses, stated that plaintiffs
have no cause of action, and that "the present residential house of the defendants
was transferred to the present site after plaintiffs sold to defendants a portion of
their land, which includes the site of the present house and from and after said sale,
defendants have occupied the said portion legally and with the knowledge and
consent of plaintiffs." They counterclaimed for damages.
The municipal court's judgment directed defendants to vacate the premises,
to pay plaintiffs a monthly rental of P10.00, from April 1, 1958 until possession is
restored, and P200.00 as attorneys' fees, and costs.
Defendants, on appeal to the court of First Instance of Davao, 2 renewed their
bid to throw out of court plaintiffs' complaint for want of jurisdiction. Plaintiffs'
opposition and defendants' reply thereto were also submitted.
On December 26, 1963, the Court of First Instance of Davao dismissed the
case. The court reasoned but that the suit was one of forcible entry and was started
beyond the reglementary one-year period.
Plaintiffs appealed to this Court.
Plaintiffs' position is that the municipal court had original jurisdiction; that
consequently the Court of First Instance had appellate jurisdiction. Their theory is
that suit was well within the one-year period. They say that the parting date is
December 28, 1962, when plaintiffs demanded of defendants to vacate the
premises and pay rentals in arrears; and that the complaint was registered in court
on January 28, 1963.
Solution of the problem turns on this question: Is the complaint one of
forcible entry or unlawful detainer? 1äwphï1.ñët
1. Section 1, Rule 70 (formerly Section 10, Rule 72) of the Revised Rules of
Court, states that a person deprived of possession of land "by force, intimidation,
threat, strategy, or stealth," or a person against whom the possession of any land
"is unlawfully withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied," may at any time "within
one (1) year after such unlawful deprivation or withholding of possession, bring an
action in the proper inferior court against the person or persons unlawfully
withholding or depriving of possession." The next legal precept, Section 2 of the
same Rule, provides that the landlord may not sue his tenant for ejectment "for
failure to pay rent due or to comply with the conditions of his lease, unless the
tenant shall have failed to pay such rent or comply with such conditions for a period
of fifteen (15) days, or five (5) days in the case of building, after demand therefor, . .
. ."
It is plain that the foregoing rules define two entirely distinct causes of action,
to wit: (a) action to recover possession founded on illegal occupation from the
beginning — forcible entry; and (b) action founded on unlawful detention by a
person who originally acquired possession lawfully — unlawful detainer. 3
 The law and jurisprudence leave no doubt in our mind that what determines
the cause of action is the nature of defendants' entry into the land. If entry is illegal,
then the cause of action which may be filed against the intruder within one year
therefrom is forcible entry. If, on the other hand, entry is legal but thereafter
possession became illegal, the case is one of illegal detainer which must be filed
within one year from the date of the last demand.
2. We observe a lack of precision-tooling in the complaint. Defendants' alleged
entry into the land is not characterized — whether legal or illegal. It does not say
how defendants entered the land and constructed their residential house thereon.
It is silent, too, whether possession became legal before plaintiffs made the
demand to vacate and to pay rentals.
Nor does the complaint as much as intimate that defendants are plaintiffs'
tenants. So that the case would not come within the coverage of Section 2 of Rule
70 (summary action by landlord against tenant).
Failure to specifically aver in the complaint facts which definitely show that
plaintiffs' action is for forcible entry or unlawful detainer, is not to be lightly
treated. Jurisdiction here — challenged in a motion to dismiss — depends upon,
factual averments. The jurisdictional facts must appear on the face of the
complaint. Where, as here, the only definite ultimate facts averred are that on April
1, 1958, defendants entered upon the land and constructed their residential house
thereon, remained in possession thereof, and that demand to vacate and pay
rentals only was made on December 28, 1962, well beyond the one-year period, the
municipal court of Padada did not have jurisdiction.
The want of jurisdiction is the more accentuated when we consider the facts
that surfaced during the trial as found by the municipal court, viz:
In the course of the hearing of this case it is clear that, according to the
plaintiff, Margarito Sarona, the defendants transferred their house on April 1, 1958
to the litigated area which is designated as Lot F, (Exhibit "C-1") without their
consent and permission. At that time he was just living 200 meters away from the
lot. He requested the defendants not to place the said house in the litigated area
but the defendants refused. He did nothing and only on December 28, 1962, when
the formal letter of demand to vacate and to pay rental was made by the plaintiff
through their lawyer, Atty. Palabrica, and addressed the said letter to the
defendants but the defendants refused to vacate the area and to pay a rental of
P20.00. . . .
It is then too plain for argument that defendants entered the land on April 1,
1958 without plaintiffs' consent and permission; that plaintiff Margarito Sarona
"requested the defendants not to place the said house in the litigated area but the
defendants refused."
The findings of the municipal court itself may not be downgraded in the
present case. And this, for the reason that the complaint did not specifically state
the manner of entry of defendants into the land — legal or illegal. Since the parties
went to trial on the merits, and it came to light that defendants' entry was illegal at
the inception, the municipal court should have dismissed the case. That court
cannot close its eyes to the truth revealed by plaintiffs' own evidence before it. A
court of limited jurisdiction, said municipal court, should not have proceeded to
render an on-the-merits judgment thereon. 4
Clearly, plaintiffs' case fits in the jurisprudential precept of forcible entry.
Because the entry is forcible. Long had it been made evident that in forcible entry
cases, no force is really necessary —
In order to constitute the use of "force," as contemplated in this provision, the
trespasser does not have to institute a state of war. Nor is it even necessary that he
should use violence against the person of the party in possession. The act of going
on the property and excluding the lawful possessor therefrom necessarily implies
the exertion of force over the property, and this is all that is necessary. Under the
statute entering upon the premises by strategy or stealth is equally an obnoxious as
entering by force. The foundation of the action is really the forcible exclusion of the
original possessor by a person who has entered without right. The words "by force,
intimidation, threat, strategy or stealth" include every situation or condition under
which one person can wrongfully enter upon real property and exclude another,
who has had prior possession, therefrom. If a trespasser enters upon land in open
daylight, under the very eyes of the person already clothed with lawful possession,
but without the consent of the latter, and there plants himself and excludes such
prior possessor from the property, the action of forcible entry and detainer can
unquestionably be maintained, even though no force is used by the trespasser
other than such as is necessarily implied from the mere acts of planting himself on
the ground and excluding the other party. 5
3. But plaintiffs would want to make out a case of illegal detainer upon their
belated claim that they tolerated defendants' possession. To be observed on this
point is that there has been no allegation in the complaint, and no showing during
the trial in the municipal court, that possession of defendants ever changed from
illegal to legal any time from their illegal entry to the demand to vacate. No
averment there is in the complaint which recites — as a fact — any overt act on
plaintiffs' part indicative of permission to occupy the land. Without resorting to
mind-reading, we are hard put to conclude that there was such a change from
illegal to legal possession of defendants until the demand to vacate was made.
But even where possession preceding the suit is by tolerance of the owner,
still, distinction should be made.
 If right at the incipiency defendants' possession was with plaintiffs' tolerance,
we do not doubt that the latter may require him to vacate the premises and sue
before the inferior court under Section 1 of Rule 70, within one year from the date
of the demand to vacate. Because, from the date of demand, possession became
unlawful. And the case is illegal detainer. 6
unlawful detainer are summary in nature, and that the one year time-bar to the suit
is but in pursuance of the summary nature of the action. 10
It is well to remember that after the lapse of the one year period, suit must be
started in the Court of First Instance in an accion publiciana.

But will this rule as to tolerance hold true in a case where there was forcible Jurisdiction in the case before us is with the Court of First Instance.
entry at the start, but the lawful possessor did not attempt to oust the intruder for
over one year, and only thereafter filed forcible entry suit following demand to For the reasons given, the order of the Court of First Instance of Davao of
vacate? December 26, 1963 dismissing the case for want of jurisdiction in the Municipal
Court of Padada, is hereby affirmed.
Professor Arturo M. Tolentino states that acts merely tolerated are "those
which by reason of neighborliness or familiarity, the owner of property allows his Costs against plaintiffs-appellants. So ordered.1äwphï1.ñët
neighbor or another person to do on the property; they are generally those
particular services or benefits which one's property can give to another without
material injury or prejudice to the owner, who permits them out of friendship or
courtesy." 7 He adds that: "[t]hey are acts of little disturbances which a person, in
the interest of neighborliness or friendly relations, permits others to do on his
property, such as passing over the land, tying a horse therein, or getting some
water from a well." And, Tolentino continues, even though "this is continued for a
long time, no right will be acquired by prescription." 8 Further expounding on the
concept, Tolentino writes: "There is tacit consent of the possessor to the acts which
are merely tolerated. Thus, not every case of knowledge and silence on the part of
the possessor can be considered mere tolerance. By virtue of tolerance that is
considered as an authorization, permission or license, acts of possession are
realized or performed. The question reduces itself to the existence or non-existence
of the permission." 9

A close assessment of the law and the concept of the word "tolerance"
confirms our view heretofore expressed that such tolerance must be present right
from the start of possession sought to be recovered, to categorize a cause of action
as one of unlawful detainer — not of forcible entry. Indeed, to hold otherwise
would espouse a dangerous doctrine. And for two reasons: First. Forcible entry into
the land is an open challenge to the right of the possessor. Violation of that right
authorizes the speedy redress — in the inferior court — provided for in the rules. If
one year from the forcible entry is allowed to lapse before suit is filed, then the
remedy ceases to be speedy; and the possessor is deemed to have waived his right
to seek relief in the inferior court. Second. If a forcible entry action in the inferior
court is allowed after the lapse of a number of years, then the result may well be
that no action of forcible entry can really prescribe. No matter how long such
defendant is in physical possession, plaintiff will merely make a demand, bring suit
in the inferior court — upon a plea of tolerance to prevent prescription to set in —
and summarily throw him out of the land. Such a conclusion is unreasonable.
Especially if we bear in mind the postulates that proceedings of forcible entry and
68. G.R. No. L-3546 September 13, 1907
PIA DEL ROSARIO, plaintiff-appellant,
vs.
JUAN LUCENA, ET AL., defendants-appellees.
Perfecto Gabriel for appellant.
Vicente Ilustre for appellees.
ARELLANO, C.J.:
A complaint having been filed against Juan Lucena as his wife, Praxedes Flores, and
also against Teresa Verches the last named alone appeared at the trial and
answered the complaint.
Among the facts alleged in the complaint, the following are of importance in this
appeal:
I. That the plaintiff is the lower of the jewels, which are subsequently specified
together with their respective valuation.
II. That the said jewels are now detained by the defendant Teresa Verches, to whom
they were pawned by the other defendants, the married coupled, without the
knowledge or consent of the plaintiff, for which act the defendant Praxedes was
convicted of estafa by this same court and sentenced to five months of presidio
correccional, both she and her husband being bound to return the jewels otherwise
to pay for them.
The principal object of the complaint was to obtain from the court a declaration
that the jewels were the property of the plaintiff and that, in view thereof, they
should be returned to her and the defendants sentenced to pay the costs and
expresses of the action.
The court rendered judgment in favor of the plaintiff, Pia del Rosario, and against
the defendant Teresa Verches, for the possession of the jewels described in the
complaint provided, however, that 500 pesos, Philippine currency plaintiff to the
defendant Teresa Verches, or in case the jewel could not be returned the married
couple, Juan Lucena and Praxedes Flores, jointly and severally, and against Teresa
Verches for the sum of P1,555, less P500, and the costs in the action.
The plaintiff appealed from this decision, and in her brief she sets forth the alleged
errors contained in the judgment appealed from. The conclusion is:
1. That the defendant in answer to the complaint alleged —
III. That the said jewels we pledge by the other defendant, Praxedes Flores, in the
name of the plaintiff, Da. Pia del Rosario, which act was subsequently ratified by the
plaintiff. (B. of E., 4.)
2. That it is an undisputed fact that the jewels were delivered by Pia del Rosario to
Praxedes Flores for sale on commission for the term of two months, after which, if
not sold, that should be returned to the owner; and,
3. That by reason of having pledged them for the purpose of gain to the amount of
500 pesos. Praxedes Flores was convicted of estafa in, criminal proceedings
instituted against her.
From the answer of the defendant it appears that she accepted the contract of
pledge, and that she received the jewels in the name of Pia del Rosario, without the
least proof appearing in the record of the case that Praxedes Flores had any
authority from Pia del Rosario to pledge them; rather, on the contrary, it is
acknowledged in the judgment appealed from that the transaction carried out by
Praxedes Flores was made without the knowledge or consent of Pia del Rosario.
If Teresa Verches accepted the jewels as a pledge constitution by Praxedes Flores in
the name of Pia del Rosario without ascertaining whether the latter had given the
former any order or authority for the pledging given of her jewels, Teresa Verches
must stand the risk if when relying from her acceptance of the pledge, even if when
relying upon her judgment she was improperly or falsely informed; and it would not
just nor logical that the consequences of her reception, due to her own mistake, or
to deceit employed by a stranger, should fall on the owner of the jewels who,
without having taken any part in the transaction, became the victim of a crime. The
conflict between the right of the owner of movable property who has either lost it
or been illegally therefore and that of the creditor who has loaned money thereon
and holds it in pledge can not be decided against the owner, to whom the Civil Code
grants ba right of action to recover the property from whoever may be in
possession. (Art. 464.)
The exceptions to article 464 are herein contained, namely: (1) If the possessors of
personal property, lost or stolen, has acquired it at a public sale; (2) in favor
of Montes de Piedad established under authorization of the Government; and (3)
with regard to things acquired on exchange, or at this fairs or markets or from a
merchant lawfully engage in similar business. the defendant was not with any of the
exception under which she could refuse to make restitution of the property without
reimbursement of the amount advanced upon the pledge.
Therefore the decision which provides for such reimbursement before the return of
the jewels is not based on any law whatever. On the contrary, it is in violation of
article 464 of the Civil Code.
It is true that a subsequent ratification by the owner, of the illegal act performed by
an agent without, his consent, is equivalent to an order, and confirms the otherwise
unlawful act of the agent; but such subsequent ratification must appear in like
manner as the order itself. No such ratification of the illegal act committed by
Paraxedes Flores can arise out of the fact that a son of the plaintiff called at the
house of the defendant in order to inquire if the that he intended to redeem them.
Nor is a real intent to redeem stolen property a subsequent ratification of an illegal
act whereby the owner was deprived of the same.

We therefore hold that it is improper to compel the plaintiff to reimburse the

defendant in the sum of 3500 pesos, Philippine Currency, which Praxedes Flores
obtained through the commission of an unlawful act, but that it is proper and in
accordance with the law to compel the defendant to returned to the plaintiff,
absolutely and unconditionally, the jewels in question.

Wherefore the judgment appealed from is hereby reversed without special as to

costs, and the jewels shall be forthwith returned to the plaintiff. So ordered.

Torres, Johnson, Willard, and Tracey, JJ., concur.

69. G.R. No. L-4563 January 19, 1909
THE UNITED STATES, vs. GABINO SORIANO and GERARDO VILLALOBOS
ARELLANO, C.J.:
This case being submitted to this court by virtue of the appeals respectively
interposed by the two accused, it appears:
That Gabino Soriano appealed from the judgment of the Court of First Instance of
Occidental Negros sentencing him as guilty of the theft of a carabao, to pay a fine of
1,875 pesetas and one-half of the costs, and in case of insolvency to suffer
subsidiary imprisonment at the rate of one day for every 12½ pesetas that he failed
to pay.
And that Gerardo Villalobos in his turn appealed from that part of the judgment
which "orders the return to Candido Montilla of the carabao in question, deposited
with the said Villalobos whose right of action against Gabino Soriano is reserved."
As to Gabino Soriano, he appealed from the judgment because he was charged with
criminal participation in the act; the court below considered that this participation
in the commission of the crime was that of an abettor for the reason that he
prohibited by the carabao, although it was not proven that he was guilty as
principal of the appropriation. But in one of its findings of fact the court below held:
(1) That on the 24th of February, 1905, Gavino Soriano obtained the registration of
the carabao in the municipality of Silay, and that on the same day he transferred it
by sale to Gerardo Villalobos for the sum of P150; and (2) that Miguel Tionco, who
was municipal treasurer of Silay, declared that at the time of registration of the
carabao, Gabino Soriano produced an old certificate, issued in the time of the
Spanish Government, but did not give any particulars as to the town or the date on
which the document had been issued, and said that he returned the said document
to Soriano in order that he might attach it to his certificate of ownership as
provided in the new law. And finally, the new law referred to by Tionco is Act No.
1147 of the Philippine Commission, section 9 of which provides that persons
charged with the duty of branding or registering large cattle and issuing the proper
certificates, shall satisfy themselves of the ownership of the cattle so branded or
registered. And it has been fully proven that in addition to the original brand of the
real owner Candido Montilla, the accused, placed his own brand, that is, his initials
on the carabao in question.
Given these facts and the settled rule of this court, the fact that a number of stolen
carabaos were found in the possession of an individual who kept them hidden
away, and that a few days prior to the recovery thereof he had altered or modified
the old marks on the animals, gives rise to the presumption that said individual was
the principal in the crime, and not merely by an accessory, unless it be satisfactorily
proven that it was another person who stole the carabaos. (U.S. vs. Jamero, 10 Phil.
Rep., 137.) His participation as an accessory, as found in the judgment appealed
from, can not be admitted; he must be considered as principal in the crime as
sustained by the Attorney-General in this instance, therefore, he is guilty as
principal in the crime theft as defined by paragraph 3 of article 518 of the Penal
Code, applied by the court below.
But it was also found in the judgment appealed from that Gabino Soriano had been
sentenced by the same court for the same crime of theft of carabaos in cases Nos.
131, 164, 185, 235 and 285, and was then serving sentence in three of the cases. In
this case the aggravating circumstance No. 18 of article 10, that is, that the culprit is
a recidivist, should be considered, and it is so considered in the judgment appealed
from; but then article 520 should be applied —
Theft shall be punished with penalties next higher in degree to those respectively
prescribed in the two preceding articles:
1. xxx xxx xxx
3. If the culprit were a recidivist two or more times.
The penalties imposed by paragraph 3 of article 518 for the crime herein are arresto
mayor in its medium degree topresidio correccional in its minimum degree, hence
the penalties next higher are presidio correccional in its medium degree to presidio
mayor in its minimum degree. Therefore, the medium degree of this penalty should
be imposed on him, which we determine to be five years of presidio correccional.
With respect to the appeal of Gerardo Villalobos, it is based on the allegation that
the court below erred in ordering that the stolen carabao be returned to its lawful
owner, Candido Montilla, without reimbursing Gerardo Villalobos for its value,
notwithstanding the fact that he was fully acquitted and declared to be possessor
and purchaser thereof, in good faith, and holding title in accordance with Act No.
1147.
It is true that he was acquitted; for the judgment appealed from says "A reasonable
doubt as to his guilt exists in the mind of the court" for the reason that it was not
proven that he was aware of the unlawful origin of the animal. "Apparently, the
carabao was lawfully acquired by Vilalobos, but, notwithstanding this, the true
owner, Candido Montilla, is entitled to recover it, inasmuch as the acquisition by
Villalobos is null and void, because the supposed vendor is not the real owner of the
animal."
What does not appear to be equally certain is that the court below held that he was
a possessor and purchaser in good faith; the only thing that the court below said is,
that it does not agree with the opinion of the defense "even admitting that the
carabao was acquired in good faith."

Had Villalobos acquired it in good faith at a public sale, he would be entitled to

reimbursement by the real owner upon recovery by the latter, but the third
purchaser in this case, Villalobos, did not obtain the animal at a public sale, but by
private purchase from Soriano. The registration of the purchaser and transfer in the
books of a municipality does not confer a public character upon a sale agreed to
between two individuals only, without previous publication of notice for general
information in order that bidders may appear. Therefore, the finding contained in
the judgment impugned on this appeal is entirely in accordance with the law, that
is, with the provision of articles 120 of the Penal Code, and 464 of the Civil Code for
which reason this part of the judgment appealed from should be affirmed.

In view of the foregoing, the said judgment is reversed as far as concerns the
penalty imposed on Gabino Soriano as an accessory, and we hereby sentence him
to five years or presidio correccional with the accessories of article 58 of the Penal
Code and one-half of the costs of both instances; and we affirm the said judgment
as to the restoration of the stolen carabao to its lawful owner, Candido Montilla,
without right on the part of Gerardo Villalobos to first obtain reimbursement for
the value thereof; is reserved and he is hereby sentenced to pay one-half of the
costs of this instance.

Torres, Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.

70. G.R. No. L-9791 October 3, 1914
THE UNITED STATES, plaintiff-appellee,
vs.
VICENTE F. SOTELO, defendant-appellant.
J. C. Hixson for appellant.
Office of the Solicitor-General Corpus for appellee.
JOHNSON, J.:
On the 5th day of January, 1914, the prosecuting attorney of the city of Manila
presented a complaint against the said defendant, charging him with the crime of
estafa. The complaint alleged: "That on or about January 2, 1914, in the city of
Manila, Philippine Islands, the said Vicente F. Sotelo, having received from one
Manuel Araneta for safe-keeping, on commission or for administration, a plain gold
ring set with three diamonds, valued at P250, the property of the said Manuel
Araneta, for the purpose of selling it and delivering the proceeds thereby derived to
the said Manuel Araneta within a period of two hours or of returning the said ring
to the latter in case he should be unable to sell it, said accused, Vicente F.
Sotelo,did, then and there, willfully, unlawfully, and criminally misapply,
misappropriate, and covert the said ring or its value in the sum of P250, Philippine
currency, to his own benefit, to the damage and prejudice of the said Manuel
Araneta in the sum of P250, equivalent to 1,250 pesetas; that the accused is a
recidivist; all contrary to law."
Upon said complaint the defendant was duly arrested, arraigned, tried, found
guilty, and sentenced, by the Honorable Richard Campbell, judge, to be imprisoned
for a period of four months and one day of arresto mayor, and to pay the costs.
From that sentence the defendant appealed to this court and made the following
assignments of error: "First. The trial court erred in finding that Manuel Araneta or
Alejandra Dormir testified that Manuel Araneta delivered the ring to the defendant,
upon an agreement that the defendant should sell the same for not less than P250.
Second. The trial court erred in finding that the defendant was guilty, beyond a
reasonable doubt."
With reference to the first assignment of error, the lower court said: "He [Manuel
Araneta] states positively that he delivered the ring to the defendant, with the
distinct understanding that the latter should sell it and return with the money to
him, the agreement being that he should sell it for not less than P250."
An examination of the record, however, shows that Manuel Araneta testified with
reference to the price for which the defendant was to sell the ring, as follows: "On
the morning of the 2nd day of January (1914) this year, I met Mr. Sotelo, the
accused in this case. He asked me where I was going and I told him I was going to
sell a diamond ring. I asked him if he could find a purchaser for me, because, I told
him, the best offer I had received was P120. About 12:30 that same day Mr. Sotelo
appeared at my house; at that time we were eating; my brother-in-law, my sister,
and the owner of the ring (Alejandra Dormir) were there eating. He stated he had at
last found a purchaser who was willing to pay P180 or P190, I do not remember
exactly, for the ring; that at 1.30 he would return and bring with him the proceeds
of the sale of the ring. Then I told the owner of the ring to turn it over to Mr. Sotelo
for its sale, stating at the same time that I knew Mr. Sotelo. Then, as 2 and 3 o'clock
passed without the defendant appearing in the house, and because I assumed the
responsibility for the ring — because I had assured the owner of it of my confidence
in Mr. Sotelo — I started to find Mr. Sotelo."
In answer to the question "Why did you [Manuel Araneta] tell Sotelo to find a
purchaser for you?" — he said: "In order to find out whether there was some one
who would offer more than P120 for the ring, because the owner wanted P180 or
more."
The foregoing is all the testimony found in the record concerning the price at which
the defendant was to sell the ring.
Alejandro Dormir, the owner of the ring, testified that she had paid P250 for it, but
there is nothing in the record which justifies the finding of the lower court that the
defendant agreed to take the ring and to sell it for not less than P250. While the
finding of the lower court as to the amount for which the defendant agreed to sell
the ring is not in accordance with the evidence, it was not a finding which in any
way exculpates the defendant, provided the record shows that he did receive from
the owner the ring in question, under an agreement to sell it at some price and to
return the money which he should receive to the owner.
With reference to the second assignment of error, the lower court said, in his
summary of the proof: "The testimony of Manuel Araneta is to the effect that the
ring in question is the property of one Alejandra Dormir, who delivered it to him
(Manuel Araneta) to sell; that he in turn delivered it to the defendant herein,
Vicente Sotelo, after some conversation in which Sotelo said he could find a
customer for it, and an agreement was made whereby Sotelo should return during
the day and deliver the proceeds of the sale to the said Manuel Araneta. This
testimony is corroborated by the woman, Alejandra Dormir, the owner of the ring
in question. She testified that being in need of money, she turned the ring in
question over to Manuel Araneta, who was a friend of her family, in order that he
might sell it and deliver the proceeds of the sale to her.
The accused does not deny that the ring was delivered to him, nor that he pawned
the ring in the pawnshop of one Guillermo Ruiz, at 1810 Calle Azcarraga. He states,
however, that it was pawned with the knowledge and consent of Manuel Araneta,
who told him (the accused) that he was in need of P20, and asked him if he would
not take the ring and pawn it for him and bring the money; that, later, after he had
pawned the ring for P20, and had given the money to Manuel Araneta, the latter
asked him to obtain for him P50 additional on the ring, which the accused did,
delivering to Araneta the second time the sum of P49,40, 60 centavos being
deducted by the pawnbroker as interest; whereupon, says the accused, Manuel
Araneta gave him the sum of P4.40 as his commission on the transaction.
The court is of the opinion that the evidence demonstrates the guilt of the accused,
beyond a reasonable doubt. He has a bad reputation, having been convicted of
theft in 1902, and sentenced to three years six months and twenty-one
days. Moreover, it is the opinion of the court that the declaration of the accused,
with respect to the consent of Araneta in the pawning of the ring is false and,
therefore, can not be taken into consideration as a defense in this case.
With reference to the second assignment of error, the guilt or innocence of the
accused depends wholly upon the proof — a question of fact only. The prosecution
alleged and tried to prove that the accused was given the ring for the purpose of
selling it a price not less than P180 or P190. and to return the money or purchase
price to the owner within a period of about one hour. The accused admits that he
received the ring at the time and place when and where the owner alleges that he
gave it to him. He denies, however, that he received the rings for the purpose of
selling it on commission. He alleges that he received it for the purpose of pawning
it. He admits that he pawned it, at first for P20, but took no pawn ticket at that
time, and that the P20 were delivered to the owner (or Manuel Araneta) and that
later he returned to the same pawn-broker and received the further sum of P50
(P49.40), which was also delivered to the owner (or Manuel Araneta). He alleges
that when he received the P50 (P49.40) he took a pawn broker's ticket for the
same.
We have, then, the only difference between the prosecution and the accused a
question of fact, whether or not the ring was delivered to the accused to be sold or
to be pawned. If it was delivered to the accused to be pawned, and he did pawn it,
in accordance with his instructions, and did return the money to the owner, then, in
that case, there is no breach of trust and he is not guilty of the crime charged. If,
upon the other hand, the ring was delivered to the accused to be sold, and he
neither sold the ring nor returned it to its owner, then he is guilty as charged in the
complaint. The lower court, after a careful analysis of the proof adduced during the
trial of the cause, reached the conclusion that the evidence showed, beyond a
reasonable doubt, that the ring was delivered to the accused to be sold and that he
neither returned the ring nor its purchase price to the owner.
There were but four witnesses examined during the trial of the cause, two for the
prosecution and two for the defense. The first witness for the prosecution was
Manuel Araneta. He testified that had known the defendant for about two years;
that at the request of Alejandra Dormir he delivered the ring in question to the
defendant to be sold; that he told the defendant that he had received an offer of
P120 for the ring; that the defendant represented that he had a purchaser who was
willing to pay P180 or P190 for the ring; that the ring was given to the accused to be
sold at that price (P180 or P190); that the defendant promised to return with the
purchase price within about an hour; that the ring was given to the defendant at
about 12.30 noon p.m.; that he (Manuel Araneta) waited until between 3 and 4
o'clock p.m. for the return of the defendant; that the defendant did not return up
to that time nor at any other time, with the ring; that between 3 and 4 o'clock he
(Manuel Araneta) went to the office of the prosecuting attorney of the city of
Manila, and made a complaint against the said defendant.
He further testified that the ring had been pawned several times and that the
owner had redeemed it from a pawnbroker on the morning of the day (January 2,
1914) on which it had been delivered to the defendant.
Alejandra Dormir, the other witness presented for the prosecution, testified that
she was the owner of the ring; that she had paid P250 for it; that the ring had been
pawned; that she had redeemed it on the same day that it was delivered to the
defendant, because she wanted to sell it; that she wanted to sell and asked him
whether or not he could sell it; that Mr. Araneta and told he knew a man who
wanted to buy a ring; that the defendant arrived at the house where she was in
company with Mr. Araneta and others, while they were eating; that the ring was
upon her finger at that time; that the ring was taken off of her finger and delivered
to the defendant; that she did not authorize the defendant to pawn the ring.
The defendant testified in his own behalf and said that at about 8 o'clock or 8.30 on
the morning of January 2, 1914, he was driving in a carromata from his house in
Rizal avenue; that as he was passing near the house of Mr. Araneta he saw his and
bade him good morning; that Mr. Araneta asked him whether he knew any person
who wanted to buy a ring and he showed him the ring on his finger; that he told Mr.
Araneta that he was not devoting himself to such small things, but that,
notwithstanding that fact, he knew a person, one Vicenta Zialcita, who was
engaged in the business of selling and buying jewelry; that Mr. Araneta asked him
to accompany him to this woman's house; that he refused, saying that he was very
busy but would come back about twelve o'clock that same day to accompany
him; that he did return to the house of Mr. Araneta at about 12 o'clock that same
day; that when he came to the house of Mr. Araneta he saw that the people of the
house were eating their meal; that Mr. Araneta invited him into the house; that
once insides of the house, I asked him whether he was really to go to the house of
Vicenta Zialcita, but he said no; Mr. Araneta then asked me if I had P20, because he
was in need of the money; that Mr. Araneta then asked him if he could not pawn
the ring, and I told him that I would see what I could do and he then gave the ring
to me; that he went to the house of Juan Bebing, who was then appraiser of the
pawnshop of Guillermo Ruiz; that he told Juan Bebing that he wanted to pawn the
ring for P20, because a friend of his was in need of that money; that he was going to
redeem it to-morrow because it was going to be sold; that he received the P20; that
no pawn ticket was issued for it; that he returned to Rizal Avenue and left the
carromata at the corner and from there walked to the house of Mr. Araneta asked
him if he could not get P50 more on the ring; that he said he was not sure; that it
was then 12 o'clock and that he was hungry; that, notwithstanding that, he told him
(Araneta) that he would come back between 2 and 3 o'clock; that after giving MR.
Araneta the P20 he returned at about 2.30 in pawnshop and saw Mr. Bebing and his
(Mr. Bebing's) wife needed P20 for market purposes, and he (Bebing) had pawned
the ring for the same amount; that he told him (Bebing) that the owner of the ring
wanted another P50; that he (Bebing) said that it was all right; that we could fix it
up by putting on the ticket P70, with 3 per cent interest on the P20; that Bebing
made out a ticket for P70, deducting sixty centavos, and that he (Bebing) gave him
P49.40; that he also saw in the report which is sent by the pawnshops to the police
where his name appeared as Vicente Sotelo and that he changed the name with his
own hands and made it Vicente F. Sotelo; that later he took Mr. Cruz to the house
of Manuel Araneta and delivered the P49.40 to Manuel Araneta; that Manuel
Araneta gave him P4.40 as his commission.lawphil.net
The said Hipolito Cruz testified in part confirmed the declarations of the accused.
His testimony is of little value, however, upon the particular question presented, for
the reason that he was not present at either of the times the accused alleges that
he received the two sums of money from the pawnbroker and neither was he
present at the time the accused alleges he delivered the money to Manuel Araneta.
An examination of the declaration of the accused shows that he admitted that he
took the ring and that he knew a person, Vicenta Zialcita, who was engaged in the
business of selling and buying jewelry. He does not, however, at any time in his
declaration, attempt to show that he took the ring to the said Vicenta Zialcita, for
the purpose of attempting to sell it to her. Another peculiar facts also appears in his
declaration. It id the fact that the said Juan Bebing, who was supposed to have been
the appraiser of the pawnshop of Guillermo Ruiz, did not place the ring with Ruiz,
but pawned it himself, whether to some other pawnbroker or not, does not appear.
Bebing was not called as a witness. His declaration might have thrown some light
upon the conduct of the defendant. The prosecution alleges that the ring was
delivered to the defendant to be sold by him. The defendant admits, while alleging
that it was given to him to pawn, that he told the owner that he knew a person
(Vicenta Zialcita) who wanted to buy a ring. The defendant says that he offered to
accompany the owner to said person (Vicenta Zialcita). If the ring was given to him
to pawn, why did he offer to take the owner to a person who desired to buy it? That
fact seems to contradict his statement that he received the ring only for the
purpose of pawning it.
We think the proof shows, beyond a reasonable doubt, not only by the witnesses
for the prosecution but also by the admissions of the defendant, the following facts:
That on the 2nd day of January, 1914, at about 12.30 p.m., the owner of the ring
delivered it to the defendant, to be sold by him, at a practice not less than P180 or
P190, under the obligation to return the same, of the purchase price, within about
one hour thereafter; that the defendant did not return either the ring or the
purchase price within said time nor at any other time; that his failure to return
either the ring or the purchase price has resulted in great prejudice and damage to
the owner.
This court has held in numerous cases that such facts show clearly that the
defendant is guilty of the crime of estafa and should be punished under paragraph 5
of article 535, in relation with paragraph 2 of article 534 of the Penal Code. (U. S. De
Guzman, 1 Phil. Rep., 138; U. S. vs. Zamora, 2 Phil. Rep., 582 U. S. Anacleto, 3 Phil.,
Rep., 172; U. S. vs. Singuimuto, 3 Phil., 176; U. S. vs. Ner, 4 Phil. Rep., 131; U. S. vs.
Ongtengco, 4 Phil. Rep., 144; U. S. vs. Aquino, 4 Phil., Rep., 402; U. S. vs. Berry, 5
Phil., Rep., 370; U. S. vs. Leaño, 6 Phil. Rep., 368; U. S. vs. Solis, 7 Phil. Rep., 195; U.
S. vs. Goyenechea, 8 Phil. Rep., 117; U. S. vs. Celis, 8 Phil. Rep., 378; U. S. vs.
Rodriquez, 9 Phil., Rep., 153; U. S. vs. Da Silva, 10 Phil. Rep., 39; U.S. vs. Leyva, 10
Phil. Rep., 43; U. S. vs. Meñez, 11 Phil. Rep., 430; U. S vs. Alabanza, 11 Phil. Rep.,
475; U. S. vs. Perello, G. R. No. 5133 1; U. S. vs. Melad, 27 Phil. Rep., 488.)
In the crime of estafa, as well as that of larceny, the punishment depends upon the
amount or the value of the article misappropriated or stolen. In the present case
the owner asserted that she paid P250 for the ring. There is no proof to the
contrary. She offered to sell it, in the present case, for P180 or P190. The ring may
have been worth P250 at the time she purchased it. The value which she placed
upon it at the time she gave it to the defendant, we think should be considered its
value at that time, in the absence of other evidence, for the purpose of fixing the
punishment.
The appellant makes an effort to show, inasmuch as Mr. Araneta, who gave the ring
to him, was not its owner, that he was not guilty of the crime of estafa, even though
he misappropriated it. The crime of estafa is committed, although the victim was
not the owner of the property, but the holder or broker simply, when it appears
that the real owner was prejudiced by the disappearance of the property. The fact
is more particularly true when the person committing the illegal act knew that the
property did not belong to the holder but to some other person. U. S. vs. Almazan,
20 Phil. Rep., 225.) In the present case the proof shows that while the ring was
delivered to him by Manuel Araneta, he knew that the owner was Alejandra
Dormir.
The record does not show whether or not the ring was returned to its owner, in
accordance with the provisions of article 120 of the Penal Code. It is a general
principle that no man can be divested of his property without his own consent or
voluntary act. In the case of Varela vs. Finnick (9 Phil. Rep., 482) this court said,
speaking through Mr. Justice Torres: "Whoever may have been deprived of his
property in consequence of a crime, is entitled to the recovery thereof, even if such
property is in the possession of a third party who acquired it by legal means other
than those expressly stated in article 464 of the Civil Code."
The only exception made by article 464 of the Civil Code seems to be where the
property has been pledged in a "monte de pieded" established under authority of
the government. In such a case the owner cannot recover the property without
previously refunding to said institution the amount of the pledge and the interest
due. (Varela vs. Matute, 9 Phil. Rep., 479; U. S. vs. Meñez, 11 Phil. Rep., 430; U.
S. vs. Perello, R. G. No. 5133; Arenas vs. Raymundo, 19 Phil. Rep., 46; Reyes vs. Ruiz,
27 Phil. Rep., 458.)
Whoever claims to have acquired title to property, real or personal, through some
agent or person not the real owner, must be prepared to show that the person of
whom he purchased such property had authority to transfer the same. (Manning vs.
Keenan, 73 N.Y., 45; Meiggs vs. Meiggs, 15 Hun, N.Y., 453; McGoldrick vs. Willits, 52
N.Y., 612; Succession of Boisblanc, 32 La. Ann., 109; Loomis vs. Barker, 69 Ill., 360;
Berthholf vs. Quinlan, 68 Ill., 297; Thompson vs. Barnum, 49 Iowa, 392; Bercich vs.
Marye, 9 Nevada, 312; Voss vs. Robertson, 46 Ala., 483; Wheeler & Wilson vs.
Givan, 65 Mo., 89; Switzer vs. Wilvers, 24 Kansas, 383; 36 Am. Rep., 259.)
To the foregoing general rule, that no man can be divested of his property without
his own consent or voluntary act, there seem to be two owner has entrusted or
delivered to an agent, money or negotiable promissory notes have been delivered
or transferred to some third innocent party.
This exception is apparently based upon the exigencies of commerce and trade.
Money bears no earmarks of peculiar ownership ownership. Its primary purpose is
to pass from hand to hand as a medium of exchange, without other evidence of its
title. Negotiable promissory notes, so far as it is possible, are intended to represent
money, and, like it, to be a means of commercial intercourse, unfettered by any
qualifications or conditions not appearing on its face. (Banco Español-Filipino vs.
Tan-Tangco, 13 Phil. Rep., 628; Daniel on Negotiable Instruments, sections 769, 862;
McMabon vs. Sloan, 12 Pa. St., 229; 51 Am. Dec., 601.)
It is a fundamental principle of our law of personal property that no man can be
divested of it without his own consent; consequently, even an honest purchase,
under a defective title, cannot resist the claim of the true owner. The maxim that
"No man can transfer to another a better title than he has himself" obtains in the
civil as well as the common law. (Pothier, Trite du Contrat de Vente, 1 N., 7; Ersk.
Inst., 418.) And hence it is now recognized everywhere in the United States, as well
as in civilized Europe, that a sale "ex vi termini" imports nothing more than that
a bona fide purchaser succeeds only to the rights of the vendor. (2 Kent's
Commentaries, 324; Saltus vs. Everett, 20 Wend., N.Y., 267; 32 Am. Dec., 541;
Gibson vs. Miller, 29 Mich., 355; Lancaster National Bank vs. Taylor, 100 Mass., 18;
97 Am. Dec., 70.).1awphil.net
Second. Another exception to the general rule is based upon the doctrine of
estoppel. An illustration of this second exception would be where an man
voluntarily placed property in the possession of one whose ordinary business it is to
sell similar property as an agent for the owners, In such a case it is warrantable
inference, in the absence of anything to indicate a contrary intent, that he intends
the property to be sold. For example, where the owner sends his goods to an
auction room, where goods of a like kind are constantly being sold, he would be
estopped from recovering them in case they were actually sold. (Pickering vs. Busk,
15 East., 38.) In all such cases, however, under this exception, there must be some
act or conduct on the part of the real owner, whereby the party selling is clothed
with the apparent ownership or authority to sell, which the real owner will not be
heard to deny or question, to the prejudice of an innocent third party, dealing on
the faith of such appearance. If the rule were otherwise, people would not be
secure in sending their watches or jewelry to a jewelry establishment to be
repaired, or clothing to a clothing establishment to be made into garments.
(Wilkinson vs. King, 2 Campbell, 335; Pickering vs. Busk, 15 East., 38; Levi vs. Booth,
58 Md., 305; 42 Am. Rep., 332.)
During the trial proof was presented to show that the defendant, in the year 1902,
had been sentenced to be imprisoned for a period of three years six months and
twenty-one days, for the crime of larceny, and that he had been conditionally
pardoned by the then Governor-General, Mr. Taft, on the 27th day of July, 1903.
That proof was presented for the purpose of fixing the penalty to be imposed upon
the defendant. In view of the pardon, may the fact that the defendant was
sentenced be considered as a circumstance, for the purpose of increasing the
penalty, in accordance with the provisions of paragraph 17 of article 10, of the
Penal Code? Article 130 of the Penal Code provides that criminal liability is
extinguished in several different ways: "(a) By the death of the offender; (b) by
service of the sentence; (c) by amnesty; (d) by pardon; (e) by pardon of the
offended party (repealed by section 2 of Act No. 1773); (f) by prescription of the
crime; (g) by prescription of the penalty."
In reading said article 130, we find in paragraph 3 that the liability which is
extinguished by amnesty, completely extinguishes the penalty and all its effects,
while extinguishment by pardon, during the period which the sentence would have
lasted, except for the pardon, does not altogether extinguish the penalty. There is a
condition imposed by law, to the effect that the pardoned person shall not live in
the place of residence of the offended party, without the latter's consent, and that
a violation of that provision would work a revocation of the pardon. While we have
been unable to find any decisions of the supreme court of Spain upon the question
which we are discussing, we find that Viada (vol. 1, p. 315) says: "A pardon should
not be an impediment to the consideration of recidivation as an aggravating
circumstance, for, according to article 130, paragraph 4, of the code, a pardon only
produces the extinction of the penalty, but not of its effects."

After due consideration of the provisions of article 130, together with the views of
Viada, we are inclined to the view that the pardon does not operate to defeat the
consideration of the former conviction as an aggravating circumstance.

The lower court imposed the penalty in the medium degree. Considering the
aggravating circumstance of recidivation, the penalty should be imposed in the
maximum degree. Therefore, the sentence of the lower court is hereby modified,
and the defendant is hereby sentenced to be imprisoned for a period of six months
and one day ofprision correccional and to pay the costs.
71. G.R. No. L-3890 January 2, 1908
JOSEFA VARELA, plaintiff-appellee,
vs.
JOSEPHINE FINNICK, defendant-appellant.
Gibbs and Gale, for appellant.
Southworth and Ingersoll, for appellee.
TORRES, J.:
Some time during the months of November and December, 1905, Nicolasa Pascual
received from Josefa Varela several jewels, whereof the quantity and description
are stated in the judgment appealed from; some of the jewels were owned by
Varela and other belonged to strangers; all, however, came from Varela and were
delivered to Pascual to be sold on commission, with the express obligation on the
part of the latter to pay to the former the proceeds of the sale of said jewels, or to
return them if unsold.
Nicolasa Pascual, however, far from complying with her duty, pawned the said
jewels at various dates during said months, as appears from the pawn tickets issued
by the owner of H.J. Finnick's pawnshop, where the jewels had been pledged; that
jewels were thus misappropriated, and the amount of the loan granted thereon
embezzled, to the prejudice of Josefa Varela.
Upon the filing of the complaint, proceedings were instituted, under cause No.
2429, against Nicolas Pascual for the crime of estafa, and the accused, being found
guilty under articles 534 and 535, paragraph 5, of the Penal Code, was sentenced to
the penalty of one year and eleven months of prision correccional, to make
restitution of the jewels misappropriated or to pay the value thereof, and, in case of
insolvency, to suffer the corresponding subsidiary imprisonment; said judgment
became final and the accused is now undergoing the penalty imposed upon her.
On the 22nd of September, 1906, the representative of Josefa Varela claimed, in
writing, the return of the jewels above referred to, which were the subject matter
of said prosecution, and separate proceedings having been instituted, the manager
of the property of the late Finnick was made a party thereto. On the 17th of
October, in answer to the complaint of Josefa Varela, the manager denied all that
had been alleged by the latter, and, although admitting that the jewels had been
pledged at the pawnshop of the late Finnick, further denied that they were the
subject of estafa or any other crime committed by Nicolasa Pascual; she further
stated that Finnick was provided with a license to engage in the loan business under
the laws in force, and that he accepted the said jewels in good faith because
Nicolasa Pascual was fully and duly authorized to pledge the same; therefore, the
defendant was entitled to their possession, and she finally asked that the request of
Josefa Varela be dismissed with costs.
Neither in the said cause nor in the present proceedings does it appear as proven
that Josefa Varela authorized Nicolasa Pascual to pledge the jewels or to dispose of
the pawn tickets issued by the pawnshop, and the mere affirmation of Nicolasa
Pascual is insufficient when the same is contradicted and denied by Josefa Varela. If
said affirmation had been substantiated, the crime of estafa could not have been
proven, and the accused would not have been convicted in said cause.
Article 17 of the Penal Code provides that —
Every person criminally liable for a crime or misdemeanor is also civilly liable.
In accordance with this provision the supreme court [of Spain] in its decision of the
3d of January, 1877, has established the following doctrine:
In order that civil liability may be decreed in a prosecution it is necessary that it
arise from or be the consequence of criminal liability; therefore, if the accused was
acquitted of a crime, any court sentencing him by reason of the same to pay certain
indemnity does so in violation of this article.
Nicolasa Pascual was convicted of estafa of the jewels in question, and as the
sentence became final, so much so that she is now undergoing her term of
imprisonment, the balance of the judgment must be complied with — that is, the
restitution of the jewels misappropriated, because they are at hand and have not
disappeared. This restitution must be made even if the jewels are in the possession
of a third party, such as a pawnshop, and notwithstanding the fact that they were
lawfully acquired by it, its right to institute proceedings against whoever may be
liable therefor being reserved as provided by article 120 of the Penal Code.
The exception contained in paragraph 3 of said article is not applicable to the
present case because a pawnshop does not enjoy the privilege established by
article 464 of the Civil Code. The owner of the loan office of Finnick Brothers,
notwithstanding the fact that he acted in good faith, did not acquire the jewels at a
public sale; it is not a question of public property, securities, or other such effects,
the transfer, sale, or disposal of which is subject to the provisions of the Code of
Commerce. Neither does a pawnshop enjoy the privilege granted to a Monte de
Piedad; therefore, Josefa Varela, who lost said jewels and was deprived of the same
in consequence of a crime, is entitled to the recovery thereof from the pawnshop of
Finnick Brothers, where they were pledged; the latter can not lawfully refuse to
comply with the provisions of article 120 of the Penal Code, as it is a question of
jewels which have been misappropriated by the commission of the crime of estafa,
and the execution of the sentence which orders the restitution of the jewels can not
be avoided because of the good faith with which the owner of the pawnshop
acquired them, inasmuch as they were delivered to the accused, who was not the Therefore, in view of the foregoing, and accepting the conclusions stated in the
owner nor authorized to dispose of the same. judgment appealed from, it is our opinion that the same should be affirmed, and it
is so ordered.
Article 1857 of the Civil Code provides that —
The following are essential requisites of the contracts of pledge and of mortgage:
1. . . .
2. That the thing pledged or mortgaged be owned by the person who pledges or
mortgages it.
Nicolasa Pascual was not the owner of the jewels pledged at the pawnshop of
Finnick.

Article 1859 of said code provides that —

A creditor can not appropriate to himself the things given in pledge or under
mortgage, nor dispose of them.
While actual possession of personal property is equivalent to a title thereto, so long
as no proof is offered that the same was acquired in bad faith, yet from the time
that the latter condition is proven, such as the loss of the thing, or that the owner
was unlawfully deprived of it, the latter is entitled to the recovery thereof within
the limits fixed by law, because the holder lacks the good faith indispensable to the
protection of his possession.
Article 1955 of said code prescribes:

The ownership of personal property prescribes by uninterrupted possession in good

faith for a period of three years.

That ownership of personal property also prescribed by uninterrupted for six years,
without the necessity of any other condition.

The provisions of article 464 of this code shall be observed with regard to the rights
of the owner to recover the personal property lost or of which he may have been
illegally deprived, and also with regard to those acquired at an auction, on
exchanges, at fairs or markets, or from a merchant legally established or
customarily engaged in the traffic of similar objects.

In the present case not only has the ownership and the origin of the jewels
misappropriated been unquestionably proven but also that the accused, acting
fraudulently and in bad faith, disposed of them and pledged them contrary to
agreement, with no right of ownership, and to the prejudice of the injured party,
who was thereby illegally deprived of said jewels; therefore, in accordance with the
provisions of article 464, the owner has an absolute right to recover the jewels from
the possession of whosoever holds them, in accordance with the judgment entered
in the aforesaid cause for estafa, wherein, the accused having been found guilty,
the right of Josefa Varela to recover the jewels in question is expressly
acknowledged.
LOSS OF POSSESSION
72. G.R. No. L-3326 September 7, 1907
THE UNITED STATES, plaintiff-appellee, vs.
LAURENTE REY, defendant-appellant.
JOHNSON, J.:
This defendant was charged with the crime of robbery in the Court of First Instance
of the subprovince of Masbate in the words and figures following:
The undersigned Laurente Rey, as principal, of the crime of robbery, committed as
follows:
That on or about the 26th of September, 1905, in the municipality of San Jacinto,
subprovince of Masbate, Philippine Islands, the accused Laurente Rey, in company
with Hipolito Roblora, Lucio Estay, Jose Sudueño, Demetrio Sudueno, Melecio
Hernandez, and Luis Almosara, willfully, intentionally, maliciously, with intent of
profiting thereby, against the will of its owner and employing force with regard to
the property, took possession of the sum of fifteen thousand pesos, in silver
currency and paper certificates, and all the legal tender of the Philippine Islands;
that said amount is the property of Urrutia & Co. and of Muñoz & Co., both
commercial firms doing business in the city of Manila; that the above mentioned
amount was placed by those firms on board the steamship Cantabria, which was
totally wrecked and lost off the land of Mababuy, within the municipality of San
Jacinto, subprovince of Masbate, Philippine Islands; that said amount was packed in
several boxes; that those boxes were reenforced with iron straps and nails, which
were broken by the accused in order to take possession of the said sum of money;
that the accused, once having taken possession of the money, delivered to Petrona
Justiniano, who had knowledge of the perpetration of the crime, the paper
certificates, which were dried out by her with a smoothing iron and were kept by
her with the intent of appropriating the same. All contrary to the statute.
Masbate, March 14, 1906.
After hearing the evidence adduced during the trial of the said cause, the lower
court found that the defendant guilty of the crime charged in the complaint and
sentenced him to be imprisoned for a period of four years, and to restore to the
Union Insurance Company of Canton, Limited, the sum of 10,000 pesos and to pay
the costs of the prosecution. From this sentence the defendant appealed and made
the following assignment of errors:
(1) The court erred in finding that the crime of robbery had been committed.
(2) The sentence of the court is contrary to the evidence and the law.
By these assignments of error the defendant presents two questions, one of law
and one of fact.
An examination of the record brought to this court shows that some facts were
admitted and some were denied by the respective parties. The facts admitted were
substantially as follows:
That on or about the 19th day of September, 1905, the steamer Cantabria sailed
from the port of Manila, destined for the pueblo of Tabaco, in the Province of
Albay, and after remaining in quarantine at the quarantine station of Mariveles,
continued the journey from said quarantine station on the 24th day of September,
and on or about the 26th day of said month said ship was totally wrecked off the
small Island of Mababuy and all its officers, passengers, and cargo were totally lost.
It is proved that said ship had on board at the time of sailing from the city of Manila,
as a part of her cargo, three boxes containing money, amounting to at least 25,000
pesos. There is some confusion in the evidence concerning the exact amount of
money. This money was shipped by the firms of Urrutia & Co. and Muñoz & Co.
It is proved that one Jesus A. de Sendagorta, in the month of January, 1906,
recovered from the wreck of said ship the sum of 10,000 pesos.
It is approved that of the 25,000 pesos shipped on the said Cantabria, 20,000 of
said amount belonged to Urrutia & Co. and 5,000 belonged to Muñoz & Co.
It is admitted that on the 16th day of October, Mr. Edward E. Hill, as agent for
Union Insurance Company of Canton, Limited, paid to Urrutia & Co. the sum of
35,000 pesos for losses which the said company incurred by reason of the wreck of
said steamer, and that 20,000 of said amount was for the purpose of covering the
20,000 pesos shipped by the said Urrutia & Co. on said steamer on the 19th day of
September.
The facts charged by the fiscal and denied by the defendant are substantially as
follows:
That the defendant, with several others, on the 28th day of September, 1905, after
having discovered the existence and location of the wrecked steamer, took from
the said wrecked steamer the sum of 15,000 pesos a part of which was distributed
among his companions the largest portion of which was retained by the said
defendant.
The lower court made the following finding of facts from the evidence adduced
during the trial of the cause:
That on the 19th of September, 1905, silver and paper money amounting to 25,000
pesos belonging to the firms of Urrutia & Co. and Muñoz & Co., of Manila, was
placed on the steamer Cantabria at Manila by said firms for shipment; that 5,000
pesos of the said money belonged to Muñoz & Co. and 20,000 pesos to Urrutia &
Co; that on the 26th day of September the Cantabria was totally wrecked off the
Island of Mababuy, every person on her being drowned, the bills of lading of said
money being lost, and the money sunk with the ship; that on the 28th day of
September, the defendant, Laurente Rey, with the assistance of several men who
were in his employ, proceeded to said wrecked steamer and willfully, unlawfully,
and with the intention of appropriating it to his own use took therefrom two boxes,
one containing 10,000 pesos and the other 5,000 pesos; that 10,000 pesos of the
said money was the property of Urrutia & Co. and 5,000 pesos was the property of
Muñoz & Co.
Admitting the foregoing disputed facts to be true for the purpose of discussing the
first assignment of error made by the appellant, the question arises whether or not
the defendant, under these facts, is guilty of he crime of robbery, under the
provisions of Penal Code.
The theory of the defendant and appellant is that the said property which was sunk
with the wrecked steamer, the said Cantabria, was abandoned properly and
therefore, granting that he had taken possession of said property and appropriated
it to his own use, he was not guilty of the crime of robbery. The defendant and
appellant, in his brief, admits the following fact: That it was more than six weeks
after the cyclone (in which the Cantabria was sunk) before any definite knowledge
was received in regard to the fate of the Cantabria, thus admitting that the owner
of the money alleged to has been robbed and no definite knowledge of its lost for
six weeks or more after the destruction of said ship.
Article 460 of the Civil Code provides how the possessor of property may lose his
possession of the same:
(1) By abandonment of the thing.
(2) By the transfer to another for a good and valuable consideration.
(3) By the destruction of total loss of the thing or by the thing becoming
unmarketable.
(4) By the possession of another, even against the will of the former possessor, if
the new possessor has lasted more than one year.
The evidence shows, if it can be believed, that the defendant and his companions
entered the wrecked ship and removed therefrom the said money and
appropriated the same to hiss own use in about twenty-four hours after the time of
sinking of the said ship. Can one be charged with the abandonment of his property
without even knowing that the same has passed out of his possession or has been
lost? We are of the opinion, and so hold, that this question must be answered in the
negative.
Manresa, in his Commentaries upon the provisions of the Civil Code, says (vol. 4, p.
291):
He who has a right may renounce it. This act by which thing is voluntary renounced
constitutes an abandonment. There is no real intention to abandon a property
when, as in the case of a shipwreck or a fire, things are thrown into the sea upon the
highway.
Certainly the owner of the property ca not be held to have abandoned the same
until at least he has some knowledge of the loss of its possession or of the loss of
the thing. Property can not be considered abandoned under the law and the
possession left vacant for the finder until the spes recuperandi is gone and
the animus revertendi is finally given up. (The Ann L. Lockwood, 37 Fed. Rep., 233.)
The theory of abandonment on the part of the owners of the money stolen is fully
refuted by the fact that some weeks after the wreck of the said ship they sent men
to the place of the wreck for the purpose of recovering the property which
belonged to them, which was on board the ship at the time of her sinking. The mere
fact that cargo is sunk with a ship wrecked at sea by no means deprives the owner
of said cargo of his property therein. The owner certainly still had the right to
reclaim such property and to recover the same if possible. If it should be recovered
by others, the real owner would be entitled to recover its value less the necessary
expense of recovering the same and carrying it shore by the most approved
appliances for that purpose by others. (Murphy vs. Dunham, 38 Fed. Rep., 503.) If
the defendant and his companions had recovered the cargo from the sunken ship
for the benefit of the owners of the same, he might have been entitled to
compensation of his labor, but when he entered the sunken ship and took
therefrom, by force, the property of another before actual abandonment by the
owner and appropriated the same to his own use, he was, under the provisions of
the Penal Code in force in the Philippine Islands, guilty of the crime of robbery.
Upon the question whether or not the defendant and his companions did actually
commit the acts charged in the said complaint, we are of the opinion, and so hold,
that the evidence adduced during the trial in the lower court fully shows that the
defendant did commit such acts in the manner and form as charged in said
complaint. Therefore we do hereby affirm the sentence of the lower court and do
hereby sentence the defendant to imprisonment for a period of four years
of presidio correccional, under the provisions of paragraph 5 article 512 of the Penal
Code, to return it Urrutia & Co. and Muñoz & Co., or the Union Insurance Company
of Canton , Limited, the sum of 15,000 pesos, in case of insolvency to suffer
subsidiary imprisonment in accordance of paragraph 1 of article 50 of the Penal
Code, and to pay the costs. So ordered.
73. G.R. No. L-1748 June 1, 1906
THE BISHOP OF CEBU, REPRESENTING THE ROMAN CATHOLIC CHURCH, plaintiff-
appellee,
vs.
MARIANO MANGARON, defendant-appellant.
L.D. Hargis, for appellant.
Hartigan, Marple, Solignac and Gutierrez, for appellee.
PER CURIAM:
The plaintiff in this case relates to a tract of land in the district of Ermita of this city,
it is alleged is at present occupied by the defendant. The object of the original
complaint was to recover the possession of the said land, while in the amended
complaint the plaintiff prays that the said land be declared to be the property of the
Catholic Church and that it be restored to the latter. Counsel for appellant admits in
his brief that the object of the action is the recovery of possession when he refers
to the judgment of the court below as being "in favor of the plaintiff in an action to
recover the possession of certain real estate." (Record, p. 1.)
Neither party has exhibited any title papers to the land in question nor pay other
documentary proof. They have only offered certain parol evidence as to the former
possession of the land and as to certain acts of ownership exercised by the parties
over the same.
The court below found (a) "that the defendant's parents and brothers had been in
possession of the land in question until about the year 1887;" (b) "that it had not
been clearly shown in what capacity they had occupied the lands;" (c) "that about
the year 1887 the defendant and his relatives vacated the land by the virtue of an
order from the municipality, which declared that the land was included within the
zone of materiales fuertes (fire zone) and the houses in which they lived upon the
said land without objection;" (d)"that after the land was vacated the parish priest of
the Ermita Church fenced the land and cleaned the same without any objection
whatsoever on the part of anyone; that the plaintiff claimed that this property had
belonged to the Catholic Church from the time immemorial, the defendant, his
parents and brothers having occupied a part thereof by the mere tolerance of the
Catholic Church," (e) "that in the year 1898 the defendant, without the consent of
anyone, entered upon the land in question and built thereon a nipa house and
continued to live thereon without the consent of the parish priest of the Ermita
Church or the plaintiff in third case." (Bill of exceptions, p. 11.) The court then
ordered "that the defendants vacate the land described in the complaint and pay
the costs of this action" (p. 12).
Counsel appellant says in his brief "that the defendant claims to be owner of the
land by inheritance." (Brief, p. 8.) It is not necessary for this court to apply to the
present case the well-settled doctrine that it is not sufficient to allege a universal
title of inheritance without showing the manner and form in which such title was
converted into a singular title in favor of the person invoking the same, particularly
where, as in the present, case, the question involved does not relate to the
ownership of the property but rather to who has the better right to the possession
of the same. But the court below suggest that there are several brothers of the
defendant who might also claim the same right to occupy the land but who,
however, had not done so. The court says "from the evidence introduced at the trial
and from the fact that the defendant's brothers do not claim any right to the land in
question, it seems that the claim of the plaintiff is the more credible." (Bill of
exceptions, p. 11.)
The complaint is directed against the illegal act of spoliation committed by the
defendant in October, 1898, while as he himself says there was no priest in Ermita
who could take care of the church and of the land in question, the American troops
having occupied the parish house according to the defendant, and the Filipino
troops having occupied it according to other witness. This is one of the points as to
which there is no dispute between the parties, the defendant and the witnesses of
both important details relating to this matter.
Counsel for appellant sums up his brief in the following paragraph:
The defendant was the legal owner of the property when he was unlawfully ejected
by the plaintiff in 1879, and we insist that he had a right to reenter upon the land
when he did so, the time for prescription not having expired since he was ejected in
1879 (p. 8).
Upon this point the court below said: "The occupation of the land by the defendant
in the year 1898 was illegal, for, if her brought he had a right to the land, he should
have applied to the courts for the possession of what belonged to him, and not
proceed to occupy property claimed (he should have said possessed) by another
against the will of the latter."
The conclusion of law of the trial court is entirely in conformity with the conclusion
would sanction the recovery of possession through violence or other unlawful and
arbitrary means, and would permit a person to take the law into his own hands. "If
a person thinks that he is entitled to the property which another possesses he
should claim the same from the person in possession. If the latter accedes and
voluntarily returns possession and acknowledges that the property does not belong
to him, there is no necessity of any one interfering, but if the person in possession
refuses to deliver the property, the one who believes himself to be entitled to it,
however well founded his belief may be, can not take the law into his own hands
but must seek the aid of the competent authorities." (4 Manresa, Commentaries on
the Civil Code, p. 163.) The action of the defendant in 1898 was therefore
absolutely unlawful.
This possession held by the defendant in 1898 can not be added to the former
possession, which was interrupted in 1877 by the order of the municipality, so as to
consider such possession continous, the time intervening not being of sufficient
duration to cover the statutory period of "a person who recovers possession
according to law, which was improperly lost, is considered as having enjoyed it
redound to his benefit." But in this case it appears (1) that it can not be affirmed
that the possession enjoyed by the defendant was improperly lost; that possession
ceased by virtue of an order from the municipality and no proof to the contrary has
been offered on this point; (2) that it is impossible to say what was the nature of
the possession prior to the year 1877 — that is to say, whether it was held by right
or by the mere tolerance of the plaintiff in this case. The code refers to the recovery
of the possession, according to law, which was improperly lost, and to "recover
according to law means through the proper writs and actions, or by requesting the
aid of competent authorities in the special cases where the provisions of article 441
may apply." (4 Manresa, Commentaries on the Civil Code, p. 329.) "Of course,"
continues Manresa "the acts of violence or secrecy or mere tolerance can not affect
the right of possession." Consequently the defendant in this case could never have
lawfully and legally done what he did, to wit, to reenter upon the land which he had
been ejected by the city of Manila. If the order of the municipality was illegal, and
the possession was improperly lost, the defendant should have requested the
assistance of the competent authorities to recover it. He should have applied to the
executive or administrative officials, as the case might have been, or to the courts
of justice in a plenary action for possession, for a year having elapsed since he was
ejected from the premises, he could not maintain a summary action for possession.
The legal provisions hereinbefore quoted would be sufficient ground upon which to
base the confirmation of the decision of the trial court, but on account of the facts
involved in this case a question of law has been raised by the members of this court
which has not been urged by the parties themselves. It is absolutely necessary to
decide this question, which naturally arises from the facts alleged in the complaint.
The question is whether, after the promulgation of the Civil Code, the accion
publiciana, which had for its object the recovery of possession in a plenary action
before an action for the recovery of title could be instituted, still existed. It is well
known that under the legislation prior to the Civil Code, both substantive and
adjective, there were three remedies which a party unlawfully dispossessed could
avail himself of, to wit: The accion interdictal, which could be brought within a year,
in a summary proceeding; the plenary action for possession in an ordinary
proceeding, which could only be brought after the expiration of a year; and the
action for title in an ordinary proceeding, which was brought in case the plenary
action for possession failed. The accion interdictal had for its object the recovery of
the physical possession; the plenary action for possession, the better right to such
possession; and the action for title, the recovery of the ownership.
We lay down as a conclusion that if the plaintiff, when he was deprived in October,
1898, of the possession which he had enjoyed quietly and peacefully for twenty
years, more or less, had within a year instituted the accion interdictal, or summary
action for possession, he would have been, necessarily and undoubtedly, restored
to the possession of the land. It would have availed the defendant nothing to allege,
as he now alleges, that he had merely recovered the possession which he
improperly lost in 1877, when he dispossessed the plaintiff as he did. Any tribunal,
in the same arbitrary manner in which the defendant dispossessed the party in
possession, would have condemned the said defendant to return the possession to
that party.
But a year elapsed and the plaintiff brought this summary action for possession,
and we also lay down as a conclusion that such summary action for possession
could not be maintained, either under the old Code of Civil Procedure or under the
new Code of Procedure in Civil Actions. (Laws 1 and 2, title 34 of the Novisima
Recopilacion; art. 1635 of the Spanish Code of Civil Procedure and sec. 80 of the
present Code of Procedure in Civil Actions.)
This quiet and peaceful possession of twenty years, more or less, thus lost in a
moment, could not be recovered in a summary action for possession after the
expiration of one year, but possession could still be recovered through the accion
publiciana, which involved the right to possess. This latter action would be then
based upon the fact that he, having been in possession for twenty years, could not
lose the same until he had been given an opportunity to be heard and had been
defeated in an action in court by another with a better right. (The same laws.) This
fact of itself would have been sufficient to recover the possession, not in summary,
but in a plenary action, in which it would likewise have availed the defendant
nothing to allege that all that he did was to recover a possession improperly lost in
1877. In one way or the other the plaintiff would have recovered such possession,
in the first case the physical possession and in the second case the right to possess,
which is not lost by the mere occupation of a third person, whether such
occupation was effected violently, secretly, or arbitrarily.
But the doubt which now exists is whether, after the promulgation of the Civil Code,
the accion publiciana continued to exist.
The doubt arises from the provisions of article 460 of the Civil Code, which reads as
follows:
The possessor may lose his possession —
1. By the abandonment of the thing.
2. By transfer to another for a good or valuable consideration.
3. By the destruction or total loss of the thing or by the thing becoming
unmarketable.
4. By the possession of another, over against the will of the former possessor, if the
new possession has lasted more than one year.
The last provision of this article has given rise to the doubt whether possession
which is lost by the occupation of another against the will of the former possessor is
merely possession de facto or possession de jure.
The most powerful reason why it is thought that it refers to possession both de
facto and de jure is that, whereas the two are equally lost in the manner indicated
in the first three provisions of this article, it would be rather strange that the fourth
provision should only refer to possession de facto.
This, however, is not convincing because not only can the right of possession of any
kind be lost in the aforesaid three ways, but the right of ownership as well. It could
not be inferred from this, however, that the right of ownership can be lost in the
fourth manner indicated. The legislation and the jurisprudence of all countries will
allow a party after he has lost possession to bring an action to recover the
ownership of the property — that is to say, to recover what belongs to him —
except where he is barred by the statute of limitations. There is no law fixing one
year and one day as the period of prescription of such actions.
Manresa expressly propounds this question and says:
Meditation upon the nature of possession, being convinced as we are of the fact
that possession constitutes a right, a right in rem, whenever it is exercised over real
property or property rights, has merely served to strengthen as far as possible our
conviction of the existence of the accion publiciana. We confess, willing to rely only
upon a sound basis, that a doubt has occurred to us as to whether or not such
action should be exercised by the possessor, as we find nothing definite upon which
to place such reliance, although we have noticed that most of the authors admit
that he should, and we know that where there is a right there is a cause of action.
We have later seen this question raised and the proposition advanced that,
although, as an exception to the general rule, such action is based upon equity, but
as equity is not sufficient to allow the exercise of such action, it would be necessary
to have a legal provision, an article in the code, establishing the same, a provision
and an article which do not exist, and their nonexistence shows that there is no
such thing as the accion publiciana.
That we have no knowledge of the existence of any legal text or recent provisions
which expressly relate to such action, is true. The same thing is true in France.
However, the majority of the authors admit its existence. Among us it existence is
also generally admitted by the authorities on civil and procedural law. But we do
not desire to base our conclusions upon the arguments of the authorities,
particularly when we note that Sanchez Roman is the only one who has attempted
to support in any way his conclusions. It is sufficient, says this author, that the right
existing, there should be an action to protect it. There is no necessity of any special
declaration in the Civil Code.
We are of the same opinion as the author in question, but certainly not because we
believe that if the possessor is deprived of the accion publiciana his right ceases to
be a right in rem. In regard to this matter we refer to what we have already said in
our preliminary consideration of the question of possession.
In regard to this matter the idea is present in the code that possession should be
considered as an actual right and it is so stated in various articles of that code, as
for instance in article 438. It would be impossible to admit that a mere physical act
would confer all the rights which a possessor ordinarily enjoys.
Article 445 presupposes that possession may be considered either as de facto or de
jure, for when it refers to controversies arising from the possession de facto, it
clearly indicates that other controversies may arise which would not relate to the
possession de facto. Further it can not be conceived that had its intent been
different it should have preferred actual possession to any other possession. The
article in question ends with the following significant words: "The thing shall be
placed in deposit or judicial keeping until the possession or ownership thereof is
decided in the proper manner." That is to say, the question of fact can not be
determined until the question of law has been decided either in regard to the
ownership or in regard to the possession (pp. 220-221).
Further, let us take another subject, for instance, the subject for easements. It was
generally believed that the accion confesoria existed. Vain delusion! We have
carefully examined all the provisions of the code relating to easements and we find
absolutely nothing in regard to such an action. Then the accion confesoria is
another error. It does not really exist. Then, if the owner of the dominant estate is
denied the use of the easement, it would not be because he has not a right to such
use of it. The only thing that he has not is the action.
No; such an absurdity can not be admitted. It is impossible to conceive that a
person has a right which need not be respected by others, and such respect can not
be exacted unless the law provides an adequate remedy for its enforcement. If a
person has aright over any kind of property, such right would not be complete
unless it could be enforced as against the whole world. The action is the recognition
of the right; it is the weapon for its protection; the right certainly does not arise
from the action, but on the contrary the action arises from the right. There is a right
recognized by the code — then this is sufficient! That right necessarily carries with it
the action to enforce it, the life-giving force. The action is, under this aspect, the
actual enforcement of the right, and these two things are so closely allied that if the
action is denied the right is also virtually and actually denied. the accion publiciana,
therefore, exists, not for the sake of equity, but because it must necessarily exist if
the right to possession exists or can exist as provided in article 445, and as is
inferred from the other articles of the code dealing with this subject.
There are not, in reality, any practical difficulties, for the courts consider as owners
many who are simply possessors, and actions for title are maintained upon
evidence which appears to be proof of ownership, but which in reality is not, for the
reason that the title under which such ownership is claimed is not always in
question, but merely its superiority over the claim of title of another. In a word, it is
necessary to state the nature of the action but not the name by which it is known,
and the claim being a just one, it is allowed in an action for title which in a
multitude of cases would be nothing but an accion publiciana (plenary action for
possession). Do not give the name of the action because it is not necessary; merely
ask that the right be enforced. Who can reject the claim ? (Pages 223-224.)
Paragraph 4 of article 460 is not an innovation in the Civil Code, nor does it mean
the modification or reformation of the old law. Law 17, title 30 of the
third Partida contains the same provision: "One who holds property can not lose
the possession thereof except in one of the following manners: (1) If he is ejected
from it by force; (2) if another person occupies in while he is absent and upon his
return refuses him admission. . . . But although he may lose the possession in either
of the aforesaid manners, he can, however, recover the same, and even the title
thereto by an action in court." There is no doubt that paragraph 4 of article 460 is
nothing but a repetition of the law in force prior to the Civil Code. He who loses
possession in either of these ways may demand the return of the same in an action
in court, as well as the ownership of the property, the glossator in expanding the
word juizio which appears in the law, saying, "by means of an action, unde vi,
namely, that of recovery, or by any such restorative means." So that the possession
thus lost may be recovered not only in an action unde vi but some other restorative
means, such as the accion publiciana or a penal action; this aside from an action for
title.
Law 2, title 34, book 11 of the "Novisima Recopilacion" contains in its title the
following prohibitive provision: "No one shall be deprived of his possession until he
has had an opportunity to be heard and his right is defeated in accordance with the
law."
As a legal precedent to paragraph 4 of article 460 we have law 3, title 8, of the same
book 11, which says: "The laws of some cities provide that he who has been in
possession of a building, vineyard, or other land for one year and one day,
peacefully and adversely to the person claiming to be entitled to such possession
who travels in and out of the village, shall not be held responsible therefor. There
being doubt as to whether such possession for the period of one year and one day
requires title in good faith, we, to dispell this doubt, do hereby order that he who
holds such possession for the period of one year and one day shall not be exempt
from liability therefor while in possession unless such possession of one year and
one day was accompanied by title in good faith."
If the whole provision of article 460, paragraph 4, was contained in the old law and
such was the meaning and efficacy that possession of one year and one day had
under the said old law, the courts must give some satisfactory and convincing
explanation why the meaning and efficacy of such possession of one year and one
day referred to in the code should be different. We are unable to give such
explanation, because in the act which was the basis of the present code nothing
new was provided upon this subject, nor was any rule or procedure specified by
which the various sections of the new law should be governed. Therefore the
provisions of the code should be construed, as to the possession of one year and
one day, as they were construed in the prior legislation, unless it appears that the
intention of the legislature was otherwise — that is to say, unless it appears that
the said legislature intended exactly the contrary of what had been established
preceding the enactment of the code.
The right acquired by the person who has been in possession for one year and one
day is the right that the former possessor lost by allowing the year and one day to
expire. The right is lost by the prescription of the action. And the action which
prescribes upon the expiration of the year is "the action to recover or to
retain possession; " that is to say, the interdictory action. (Art. 1968, par. 1.) then
the only right that can be acquired now, as before, by the person who was in
possession for one year and one day is that he can not be made to answer in an
interdictory action, but this is not so in a plenary action unless he had some title in
good faith. The former possessor who had been in possession for twenty years,
more or less, was considered as owner, and unless he was given an opportunity to
be heard, and was defeated in law, he could not be deprived of such possession;
and notwithstanding all this, and in spite of such prohibition, the maintenance of a
possession wrongfully taken from the former possessor by a willful act of the actual
possessor had to be sustained.
The lessee, the depositary, the pledgee, the intruder, the usurper, the thief himself,
after the expiration of a year would not be responsible for the possession of which
the lawful possessor was wrongfully deprived, and if the latter could produce no
evidence of his right of ownership — the only thing that he could do according to
the contrary theory — it would be impossible for him to recover such possession
thus lost by any other means.
If, in addition to the fact of possession, the action for the enforcement of which and peaceful possession of the land for twenty years, more or less, at the time he
prescribes after the expiration of one year and one day, there exists without any was wrongfully dispossessed by the defendant.
doubt whatsoever the right to possess (or more properly speaking in the case at
bar, to continue to possess, which said right of possession would be a right in rem, Having reached this conclusion, the judgment of the court below is accordingly
such possession would not be on a less favorable footing than a mere possession de affirmed, with the cost of this action against the appellant. So ordered.
facto; and, if in the latter case the interdictory action lies, the action which existed
prior to the enactment of the code, to wit, the accion publiciana, should continue to
lie in the former case. The code establishes rights and the Law of civil Procedure
prescribes actions for the protection of such rights, and we can not look to the code
to find any provision defining the action which every civil right carries with it.

This is the reason why as a title of chapter 3 of the code in which article 460 is
included, and a sanction of the whole of title 5, book 2, which deals with
possession, article 446 provides that every possessor has a right to be respected in
his possession, and should he be disturbed therein, he must be protected or
possession must be restored to him by the means established in the laws of
procedure.

The code refers to the laws of procedure enacted in Spain in 1881 and extended to
the Philippines in 1888. Article 1635 of the old Code of Civil Procedure makes
provision for summary proceedings to retain or to recover, to protect or to restore,
possession, provided the action is brought within a year, but after the expiration of
this period the party may bring such action as may be proper. This latter action, as
has been explained before, may be either the plenary action for possession referred
to or an action for title. This assumed, and reading article 1635 of the old Code of
Civil Procedure immediately before article 446 of the Civil Code, we are unable to
conceive how that could be successfully denied after the 8th of December, 1889,
when the Civil code went into effect, which could not be denied prior to that date,
to wit, the existence of the accion publiciana to recover the right of possession, to
enforce the right to possess, which although it could not be brought within the year
as a mere interdictory action for the protection of the mere physical possession,
there can be no valid reason why it could not be brought after the expiration of the
year in order to protect the right and not the mere physical possession.

Article 1635 of the old Code of Civil Procedure not having been repealed by the Civil
Code, if the accion publiciana existed prior to its enactment, it must necessarily
exist after such enactment. We consequently conclude that the action brought by
the plaintiff in this case to recover the possession of which he was unlawfully
deprived by the defendant can be properly maintained under the provisions of the
present Civil Code considered as a substantive law, without prejudice to any right
which he may have to the ownership of the property, which ownership he must
necessarily establish in order to overcome the presumption of title which exist in
favor of the lawful possessor, the plaintiff in this case, who had been in the quiet

OTHER CASES OF POSSESSION
74. G.R. No. L-3823 November 23, 1907
PEDRO P. ROXAS, ET AL., plaintiffs-appellees,
vs.
MARIA DE LA PAZ MIJARES, defendant-appellant.
Hartigan, Rohde and Gutierrez, for appellant.
Rosado, Sanz and Opisso, for appellees.
TORRES, J.:
A complaint was filed by Pedro P. Roxas and Carmen de Ayala de Roxas in the court
of justice of the peace of Manila praying that judgment be entered in their favor for
the recovery from the defendant, Maria de la Paz Mijares, of the possession of a
parcel of land between the entrance or ground floor of houses Nos. 82 and 88 in
Calle Dulumbayan, of 3 meters and 90 centimeters by 2 meters and 17 centimeters,
measured from a distance of 1 ½ meters from a small door belonging to No. 86 in
said street, and the possession of the old latrine of house No. 82, the same being at
the left end in the rear of the said house within the perimeter of the one numbered
86, with costs and any other remedy which might be considered just and equitable.
The case having been tried, the justice of the peace rendered a decision in favor of
the plaintiffs on the 2d of March, 1906, sentencing the defendant to reinstate the
former in the possession of the said parcel of land situated between the entrance or
ground floor of houses Nos. 82 and 88 as well as the possession of the old latrine of
house No. 82 at the left end of the rear thereof, within the perimeter of the one
numbered 86, cautioning the defendant to open the passage leading to the said
parcel of land, to remove the wall which closed the arch at the entrance, and to
place it upon the far side of the extension in its original position, with costs against
the defendant who appealed from the said judgment.
A complaint was filed with the Court of First Instance on the 16th of March, 1906,
and notwithstanding the fact that the defendant's demurrer was overruled, on the
29th of said month the plaintiffs stated in writing that they withdrew their former
complaint filed with the Court of First Instance, and that taking advantage of the
privilege granted by section 112 of the Code of Civil Procedure, they relied upon
their pleadings as filed with the justice of the peace; however, on a new motion
made by the defendant on the 3d of April following, the court directed the plaintiffs
to amend their complaint.lawphil.net
On June 1, 1906, the plaintiffs stated in their amended complaint that Carmen de
Ayala de Roxas, the lawful wife of Pedro P. Roxas, is the owner of the building of
strong materials erected on her own ground at No. 4, Calle Dulumbayan, district of
Santa Cruz, bounded on the right by house No. 2, owned by Pedro S. Gruet and
brothers, on the left by house No. 6 owned by Brigida del Rosario, and on the back
by Calle Salcedo; that said lot has an area of 215 meters and 72 centimeters square;
that the defendant, who is a widow, is now the owner of the house built of strong
materials together with the ground at No. 6 on said Calle Dulumbayan, bounded on
its right by house No. 4 of the said Carmen de Ayala, on the left by house No. 8,
belonging to the estate of the late Catalino Valdezco, and on the back by Calle
Salcedo; that said lot has an area of 215 meters and 7 centimeters square; that the
defendant, Paz Mijares, is now the owner of the said property No. 6 because she
inherited the same from her mother, Brigida del Rosario y de los Angeles; that on
November 27, 1894, the plaintiff and Brigida del Rosario, the defendant's
predecessor, executed before a notary a public deed which was duly registered in
the registry of property in connection with both premises, and herein Brigida del
Rosario acknowledge that the dividing wall in house No. 4 which separates the said
premises Nos. 4 and 6 in said street, for its whole length to Calle Salcedo, which is
the limit of both houses, is owned exclusively by Carmen de Ayala, and that in view
thereof she renounced and waived all rights which as owner of house No. 6 she
might have to the said dividing wall, and she further engaged and bound herself, as
soon as the adjoining house No. 4 and the next one No. 2 were demolished, to
construct on her account and risk a wall to support the upper and lower floor of the
right side of their house No. 6, in order that the dividing wall acknowledged as the
property of Senora Ayala de Roxas, should remain free and unencumbered.
Further, that the latter assigned and conveyed in favor of Brigida del Rosario,
whenever the time arrived for demolishing the houses Nos. 4 and 2, whether
through condemnation proceedings or because it so suited the owner, the rooms of
the upper story of her property No. 4 outside of the said dividing wall between the
premises Nos. 4 and
6 — that is to say, on the lower story of the last named — and therefore she
transferred to Brigida all the rights of ownership which she might have over said
rooms, both owners to continue in the possession and enjoyment of their
respective properties in the same manner until the aforesaid demolition should
take place, and then the contract entered into between both parties was to go into
full effect; that on the said 27th day of November, 1894, the plaintiff Carmen de
Ayala, was in possession, and was for a long time prior to and after said date until
the 9th of May, 1905, possessed of the said extension of ground, viz, 3.90 by 2,17
meters below the rooms of the house which she assigned to the defendant, said
possession being material and de facto; that on or about the 9th of May aforesaid,
the plaintiff was deprived by the defendant of the possession of the said extension
of ground by means of fraud, craft, and deceit, the latter occupying the same and
closing the entrance to it by obstructing the arch and erecting a wall far beyond the
place where it formerly stood; that said construction was carried out by the
defendant without the knowledge or consent of the plaintiff, her house not having
yet demolished, she having instituted her action in the court of the justice of the
peace before the expiration of one year from the spoliation; that when said
agreement was signed on the 27th of November, 1894, the plaintiff was in
possession of a latrine at the upper story of her house which projected over the
perimeter of the defendant's ground, and the latter closed the passage to said
latrine which should continue to be enjoyed by the plaintiff until her house was
demolished, this not having yet taken place, all of which facts are an open
transgression of said agreement and have injured the plaintiff, Carmen de Ayala de
Roxas; that for said reason the plaintiff asked that judgment be entered in her favor
for the recovery of possession from the defendant, Maria de la Paz Mijares, of the
said extension of ground lying between houses Nos. 82 and 88 in Calle Dulumbayan,
of 3.90 by 2.17 meters measured from a distance of 1 1/2 meters from a small door
in No. 86 Dulumbayan, and the possession of the old latrine of house No. 82 over
the perimeter of No. 86, with costs and any other just or equitable remedy.
The defendant, Maria de la Paz Mijares, in her answer dated June 4, denied all the
allegations contained in paragraphs 6,7,8,9 and 10 of the complaint, and as a
defense alleged that all the work carried out by her in her own house was done in
compliance with orders from the Board of Health of Manila, therefore, she asked
that the complaint be dismissed with costs against the plaintiffs.
Evidence having been adduced by both parties and the documents and plans
submitted having been read and recorded, judgment was entered on the 13th of
November, 1906, in favor of the plaintiffs as against the defendant who excepted
thereto, and upon the filing of the proper bill of exceptions it was approved and
forwarded to this court.
From the terms of the complaint and the answer thereto it is inferred that the
action prosecuted by the plaintiff was for the recovery of possession of certain
extension of ground situated below houses Nos. 4 and 6, between Calles
Dulumbayan and Salcedo, of 3.90 meters in width by 2.17 meters in length,
together with an old latrine at the rear end of No. 6.
The area and boundaries of each property, owned respectively by each of the
contending parties, are properly described in the notarial deed executed on
November 27, 1894, by the original and former owner of the said two buildings,
Pedro S. Gruet, by the purchaser of house No. 4, Carmen de Ayala de Roxas, and by
the person who acquired house No. 6, Brigida del Rosario, no question whatever
being pending between the parties herein with regard to such matters or with
respect to the title of ownership thereto.
This controversy presents only the question whether the agreement between the
two above-mentioned ladies, De Ayala and Del Rosario, in caluses A, B, and D of
paragraph 7 of the aforesaid deed has been actually violated by the defendant,
Maria dela paz Mijares, successor to Brigida del Rosario, one of the contracting
parties, as affirmed in the complaint.
Disregarding the condition as to the demolition of house No. 4 owned by Senora de
Ayala, the present owner of the adjoining house No. 6, Senora Mijares, voluntarily
occupied the aforesaid portion of land measuring 3.90 by 2.17 meters, depriving
the plaintiff of the lawful possession thereof inasmuch as she closed the passage to
said portion of land from the hall or ground floor of Señora Ayala's house and
changed the position of the wall that enclosed the same, causing the wall to run
farther back, thus evidently violating the contract to the prejudice of the plaintiff;
whereas it was agreed between both owners that they should continue to possess
and enjoy their respective properties as they actually existed until such time as the
demolition, as provided in subdivision B, should take place, after which the contract
was to go into full force and effect.
The demolition does not appear to have ever take place, therefore there is no
lawful reason why the defendant, should occupy the said portion of land, closing
the passageway thereto and preventing the use of the same by the plaintiff without
the knowledge and consent of the latter, who either by herself or by her tenants,
had an unquestionable right to use the land; the defendant, moreover, further
extended the wall in violation of the agreement.
The defendant, having succeeded her predecessor, Brigida del Rosario, in her rights
and obligations, can in no way disregard the agreement entered into by her
principal, as it is a principle of law that whoever enters into a contract does so for
himself and for his heirs, and that the latter as successors to all the rights of the
former succeed him also in all his obligations; this principle is stated in numerous
decisions and it constitutes a settled legal rule.
Article 1278 of the Civil Code reads:
Contracts shall be binding, whatever may be the form in which they may have been
executed, provided the essential conditions required for their validity exist.
Article 1255 of said code provides:
The contracting parties may make the agreement and establish the clauses and
conditions which they may deem advisable, provided they are not in contravention
of law, morals, or public order.
It was agreed that until the demolition of the house of the plaintiff should take
place the position and condition of both houses, connected in the manner and form
described in the deed, should continue as theretofore. Disregarding the agreement,
the defendant usurped a portion of the land possessed by the plaintiff, closed the
passageway thereto and altered the position of the wall enclosing it, and by such
action she committed a real act of spoliation which is illegal; therefore she is
obliged to restore things to the same condition as before because she knowingly
violated the contract which bound both parties and which constitutes the law
whereby this contention is to be decided and to which the decision of this court
must conform.
Article 446 of the Civil Code provides:
the possession or the right of the owner over the leased property, he is entitled to
institute the proper action; and it would be a judicial absurdity to deny him such a
right and trust the defense of his interests to the tenant whose obligations and
rights are entirely different.
As it does not appear that the plaintiff excepted to that portion of the judgment
which held that she is not entitled to recover the latrine described in the complaint,
this matter can not be considered in this cause.

Every possessor has a right to be respected in his possession; and should he be For the reasons above set forth, it is our opinion that the judgment appealed from
disturbed therein, he must be protected or possession must be restored to him by should be affirmed with the costs against the appellant, and it is so ordered.
the means established in the laws of procedure.
Arellano, C.J., Johnson and Tracey, JJ., concur.
The fact that the plaintiff was in possession of the aforesaid portion of land having
been proven, and the act of spoliation having been admitted by the defendant upon
her statement that all the works carried out in her own house were made in
compliance with orders of the sanitary department, the restoration sought herein Separate Opinions
should forthworth be ordered in view of the fact that such orders of the sanitary
WILLIARD, J., concurring:
department can never serve as an excuse for an attempt against the possession
lawfully enjoyed by the plaintiff. I agree in that the judgment should be affirmed, but consider that the action
followed is that provided by sections 80 of the Code of Civil Procedure.
Spoliation is a positive attempt against public order and must instantly be
suppressed without regard to the title held by the injured party, in order to avoid
disturbances in the community and prevent anyone from taking the administration
of justice into his own hands; therefore, whoever possesses a thing as the owner of
it, as well as who holds it as a tenant while the dominion appertains to another, is
entitled to ask for the restitution thereof by prosecuting the proper action against
the usurper even though he were the proprietor or owner of the property.

The fact that the property No. 6 was leased and occupied by the tenant on May 9,
1905, when the usurpation took place is no bar to the owner thereof, the plaintiff
exercising her right by claiming the restitution of possession of which she was
deprived by the defendant, inasmuch as the lessee held and enjoyed the property
on behalf of the plaintiff, who, according to No. 3 of article 1554 of the Civil Code, is
obliged to maintain the lessee in the peaceful enjoyment of the lease during all the
time of the contract, and according to article 1553 of said code, to the warranty
inherent in contracts of sale.

If the lessee is obliged to give notice to the owner with the least possible delay of
any usurpation or injurious alterations which any other person may have made or is
openly preparing to make to the thing leased, under article 1559 of said code, it is
evident that the owner is entitled to defend his property from any aggression in
order to prevent serious injury to his interest which would happen if this was left to
the tenant who has no interest and has no real right in the property leased.
Whatever may be the nature of the disturbance occuring, so long as it may affect
75. G.R. No. 5051 September 27, 1910
THE HEIRS OF JUMERO, plaintiff-appellants,
vs.
JACINTO LIZARES, ET AL., defendants-appellees.
Jose M. Arroyo, for appellants.
Vicente Franco and Espiridion Guanco, for appellees.
ARELLANO, C.J.:
Under the name of the heirs of Jumero, fifteen persons, as the grandchildren and
great grandchildren of Benedicto Jumero, demand the restitution of a piece of land
which is, and has been for the past forty years, in the possession of Jacinto Lizares.
This land has an area of five hectares and sixty ares, and adjoins on the north, east,
and west, the property of Aniceto Lacson, and on the south, that of Gregoria Vinco.
It is alleged in the complaint that this land belonged to Benedicto Jumero, and that
he willed it of his four children, all now deceased as well as the said Jumero, named
Luisa, Felix, Florentino, and Pedro, and that the plaintiffs, grandchildren and great
grandchildren, descend from the three last mentioned. The only descendant of
Luisa, Gregoria Meruegos, is not a party to the suit and therefore appears as a
defendant together with Jacinto Lizares.
At the conclusion of the trial, Florentino's children, named Anatolio, Hilaria, and
Felisa, having testified as witnesses for the defendant, Lizares, in opposition to the
allegations of the complaint, were likewise therein included as defendants, by an
amendment authorized by the court. So that, of the heirs of Benedicto Jumero, the
descendant of one entire branch, Luisa, and three of those of another branch, that
Florentino, impugned the complaint and take no part in the claim for the restitution
of the land of their common predecessor in interest.
The following facts are admitted: First, that all the heirs named Jumero are actually
the descendants of Benedicto Jumero; second, that the land, which is the subject of
the suit, passed into the possession of Jacinto Lizares, for the sum of 50 pesos,
about forty years before; and third, that the reason for his transfer was the fact that
Nicolas Jumero, a son of Felix, was drafted for the army, and to secure his release
from the military service, or to pay the attorney who was to negotiate the release,
the 50 pesos were required.
The whole question involved is whether the 50 pesos were received as a mortgage
loan, as the plaintiffs claim, or as the price of sale, as maintained from the
beginning by the defendants, Jacinto Lizares and Gregoria Meruegos, and
subsequently by Anatolio, Hilaria, and Felisa Jumero, the latter represented by her
husband, Basilio Alferio. The plaintiffs claim that the land was delivered under
mortgage in order that Lizares might have the usufruct until it should be redeemed
through the payment of the 50 pesos. The defendants assert the land was sold
outright to Lizares for the price of 50 pesos.
The Court of First Instance of Occidental Negros decided the case in favor of the
defendants and absolved them from the complaint. The plaintiffs appealed.
Having forwarded a bill of exceptions, with a right to a revision of the evidence, two
errors are alleged in this instance against the judgment of the lower court.
First. For having admitted, notwithstanding the objection of the plaintiffs, the
testimony introduced by the appellees relative to the purchase of the land in
question by Jacinto Lizares.
Second. Because the trial judge entertained doubt as to the character of the
contract, by virtue of which the defendant, Jacinto Lizares, possesses the land in
question, and because, by reason of this doubt, he absolved the defendants, and
did not declare that there was preponderance of evidence in favor of the plaintiff
appellants.
With respect to the first assignment of error, it is alleged that, as the question
involves the purchase of real estate, the testimony of witnesses is not admissible,
and that at the time the land in question was supposed to have been purchased,
the laws of the Partidas were in force, and, in accordance with law 6, title 5, of the
5th Partida, it was necessary for the validity of the contract that the sale be made
by a public instrument. The law cited provides that the purchase and sale may be
made in two ways — by a public instrument, and without one. The first is when the
vendee says to the vendor: "I wish that a document of sale be made." Such a sale,
although the vendee and the vendor agree on the price, is not completed until the
instrument is made and executed, because, before that is done, one or the other
may repent. The sale may be made without an instrument when the vendee and
the vendor both agree upon the price thereof and exchange the thing for the price,
without mentioning the instrument.
The first assignment of error is therefore without foundation. In accordance with
the legislation of the Partidas, patterned after the Roman law, the contract of
purchase and sale is eminently consensual and, consequently only requires consent
for its perfection. In order that an instrument be necessary, it was required that this
form should also be the subject of consent and that the validity of the contract be
made defendant thereon: I wish a bill of sale to be made of the thing sold, was what
the vendee should say to the vendor, according to the law cited, in order that he
might not be bound until after the execution of the instrument.
As to the second assignment of error, it is true that the trial judge while in doubt,
and by reason of his doubt, which still existed after weighing the contradictory
testimony, decided the suit in favor of the defendant. In so doing, he committed no
error whatever, but, on the contrary, complied with the second paragraph of article
6 of the Civil Code, which provides:
When there is no law exactly applicable to the point in controversy, the customs of
the place shall be observed, and, in the absence thereof, the general principles of
law.
And it is a general principle of law that, in case of doubt, the condition of he who
possesses is the better one. The defendant in whose favor the doubt was decided is
the possessor.
But, in reality, it was not a case of doubt, neither with respect to the law nor the
facts adduced by the witnesses, whose testimony, rationally weighed, does not
show an evident preponderance of proof in favor of the plaintiffs, but all to the
contrary.
By law, in conformity with article 448 of the Civil Code, this case could not but be
decided in favor of the defendant.
The possessor by virtue or ownership has in his favor the legal presumption that he
holds possession by reason of a sufficient title and he can not be forced to show it.
The defendant, Lizares, who was possessed the land in litigation for forty years,
alleges that he is possession thereof by virtue of a title of purchase and sale, which
is a title of transfer of ownership; he is, consequently, the possessor under title of
ownership, and, in conformity with the law, he has in his favor the legal
presumption that he possesses the land under sufficient title and he ca not be
obliged to produce it. A purchase verbally made gives a perfect title which, with the
occupation or possession of the thing, confers ownership upon the possessor,
provided that he holds himself out as its owner, until it be proved that he is not. It
was incumbent upon the plaintiffs to prove a character distinct from that of owner,
and only then could they compel the defendant to prove (rather than to show, as )
very properly observes the learned commentator, Manresa) the title which actually
confers upon him the status of owner. But the plaintiffs were unable to prove a
character distinct from that of owner, by due and sufficient proof of a title under
mortgage, or that of antichresis, which latter was certainly unknown in the
Philippine Islands before the publication of the Civil Code, except in exceedingly
rare cases of pretorian pledges judicially established and approved — and this they
were unable to do, for the reason that, as established at the trial, no instrument
whatever was executed of the alleged mortgage of or of such an antichresis; and, at
all times, at least since the promulgation of the Civil Code, the mortgage and the
antichresis, as restrictions of the ownership, must necessarily be recorded in
writing, under the first paragraph of rule 4 of the transitory provisions of the Civil
Code, in connection with articles 1875, 1279, and 1280.
On these grounds alone, the judgment appealed from should be affirmed. But
conceding, for a moment, some value to the testimony taken, and on the
hypothesis that it were necessary to consider it critically and reasonably in order to
reach a conviction beyond all doubt, by a preponderance of evidence offered by
one of the litigating parties, even then, and in such a case, this preponderance
could not be admitted in favor of the plaintiffs.
The following witnesses testified for the plaintiffs: Dionisio Acodo, as to the delivery
of the 50 pesos under security of the land; Gregorio Vinco, Romualda Jumero, and
Cosme Jumero, to the effect that, twenty years before, according to the first two,
and two years before, according to the last, the defendant, Jacinto Lizares, had
negotiated with their predecessors in interest, Felix Jumero and Pedro Jumero,
respectively, for the conversion of the mortgage into a sale; Rufino Brasileño, with
respect to what he had heard Jacinto Lizares say to Gregoria Vinco and another
woman, that if they had not sued him, he would have allowed them to redeem the
land; and Aniceto Lacson, as to his attempt, at the request of Jacinto Lizares, to buy
the land for the latter.
Examining all this testimony in detail, the following particular can not be criticized:
First. Gregoria Vinco, the adjacent owner to the south of the land in litigation,
testified that twenty years before Jacinto Lizares sent for her father-in-law, Felix
Jumero, who went to the house of Jacinto Lizares in company with his eldest son,
Nicolas, the husband of the witness, with her husband's sister, Romualda, and the
witness herself, and that there Lizares told them that, as the land was mortgaged,
he would add 150 pesos more, in order that the land might be sold to him. When
the witness was asked on cross-examination when she had married her husband,
Nicolas, she replied: "Thirty-eight years ago; that is, two or four years after he was
chosen as a recruit."
Romualda Jumero testified:
When my brother was drafted, it happened that my father did not have the money
to redeem him, and he went and borrowed the sum of 50 pesos from Lieutenant
Jacinto Lizares, and gave him that land as security.
Q. Who told you that your father and Jacinto Lizares made that agreement?—A. I
accompanied my father when we went to Lizares's house.
Q. Who was your companion when you and your father went of Jacinto Lizares's
house?—A. We two, my father and I.
Q. Can you tell us when you went with your father to Lizares's house?—A. About
forty years ago.
Q. How many times were you in Lieutenant Lizares's house to talk about that part of the creditor; but, on such a hypothesis, it was redemption which could not
land?—A. I only went once. be demanded of the vendee, by reason of the prescription acquired, whether the
time is computed in accordance with the previous legislation, or whether, as it is
The conclusion is, first, that Romualda Jumero, contrary to the statement made by strictly proper, such time limit, already expired, be that specified in the Civil Code;
Gregoria Vinco, did not go to Jacinto Lizares's house, and did not hear what is inasmuch as, even admitting that it was stipulated that the right to repurchase or
asserted to have been said about the conversion of the mortgage into a sale; and, redeem should last for an indefinite time, such period is restricted to ten years,
second, that this witness testified in regard to the alleged contract of guaranty, under paragraph 2 of article 1508 of the Civil Code, and this period has already
made as she herself asserted, forty years before, and when questioned at the elapsed since its promulgation. (Art. 1939, Civil Code.)
beginning of her testimony, "How old are you?" replied, "About forty years, I
believe." The judgment appealed from is affirmed, with the costs of this instance against the
appellants.
The following witnesses testified for the defendant: Gregoria Meruegos, Hilaria
Jumero, Anatolio Jumero, Basilio Alferio as the husband of Felisa Jumero, Simon
Lizares, and Francisco Lizares. Of these, the first four, and the last, averred that the
sale was made by the Jumero family; that is, by the four children of Benedicto
Jumero, because of the need to redeem from the military service a son of Felix
Jumero, the husband of Gregoria Vinco who, as aforesaid, is an adjacent owner of
land to the south of the property in question and the same person who, according
to the testimony of Hilaria Jumero, built two houses, a large and a small one, on the
land in dispute "and on account of that the suit began." The witness Hilaria Jumero
testified that Aniceto Lacson made her an offer to buy the land in question for 700
pesos, inasmuch as it had been acquired very cheaply. This testimony was
confirmed by Aniceto Lacson, in rebuttal, who stated that he had offered her 400
pesos, but that Hilaria Jumero replied that Jacinto Lizares had also made her an
offer.

Gregoria Meruegos, on cross-examination, stated that she had on some occasion

said that the land in question was pledged to Lizares, but that as it had not been
redeemed it was the same as though the latter had acquired it by purchase. "If you
had not sued me, I would have allowed you to redeem the land," are words that the
plaintiffs' witness, Rufino Brasileño, attributes to Lizares. Such are the results
obtained from the original evidence.

With all the testimony of the witnesses, proof was not adduced of the existence of
the mortgage contract, which, on the other hand, would not cause the debtor's
land to pass to the control of the creditor.

It is not irrational to accept as conclusive the testimony of the defendant's

witnesses, although they were partners-on-shares of, or in any other manner
defendant on, the defendant, because they testified against their own interest in
affirming that the land had been transferred by sale.

It is likely, considering the custom of the locality, and indeed a general one
throughout the Islands, that the land was sold with right of redemption, and hence
that its redemption should be spoken of as possible or as a mere concession on the
77. G.R. No. L-5397 December 17, 1909 We find, however, that it is not necessary to discuss or decide that question
because the defendant in this action claims ownership of said land not only by
FABIAN ARRIOLA Y CABRERA, as administratrix of the estate of Simona virtue of the possession and rights therein of her husband, Rubio, but also by virtue
Cabrera, plaintiff-appellant, of her own personal occupancy and possession of the same for more than 10 years,
vs. in good faith and just title, basing the same upon inheritance from her husband and
CAROLINA GOMEZ DE LA SERNA, defendant-appellee. a contract of distribution among his heirs under which she was awarded the land in
question.
Felix Ferrer for appellant.
W. H. Lawrence for appellee. Article 1957 of the Civil Code provides that ownership and other property rights in
real property shall prescribe by possession for ten years as to persons present, and
for twenty years with regard to those absent, with good faith and with proper title.
MORELAND, J.: Article 1950 of the same code provides that good faith of the possessor consist in
his belief that the person from whom he received the thing was the owner of the
This is an action of ejectment brought for the recovery of a parcel of land situated n
same and could convey his title. Article 433 provides that any person who is not
the city of Manila, at the corner of Calles San Luis and Nueva. The plaintiff sues as
aware that there is in his title or in the manner of acquiring it any flaw invalidating
administratrix of the estate of her mother, Simona Cabrera, who died some years
the same shall be considered a possessor in good faith. Article 434 provides that
ago. She has no documentary title whatever and relies upon the testimony of
good faith is always presumed and any person alleging bad faith on the part of the
witnesses to the effect that her mother was in possession of the land until about
possessor is obliged to prove it. That defendant has been possessing since 1896
1882, when was ousted by an order of the court and possession of the premises
under a proper title, as defined by law, is undoubted. It is equally unquestioned that
was taken by Jose M. Perez Rubio. The defendant shows title in herself and her
the defendant has been occupying and possessing in good faith unless the alleged
minor children by inheritance from her deceased husband, Jose M. Perez Rubio,
bad faith on the part of her husband can be imputed to her. Article 442 of the Civil
under a contract of distribution among his heirs. It appears also upon the
Code provides that a person inheriting by hereditary title shall not suffer the
defendant's showing that said Jose M. Perez Rubio acquired title by a conveyance
consequences of faulty possession of the testator unless it is proved that he had
executed by the Court of Quiapo on the 21st day of December, 1881, and that,
knowledge of the defects affecting it. There being no proof in the record that the
immediately upon said conveyance, he entered into possession of the property and
defendant had knowledge of the defects, if any, in the title of her husband, the
he and his heirs have continued in possession thereof under the claim of ownership,
question of good faith upon his part in possessing such land is of no consequence in
publicly, peacefully, and without interruption, down to the time of the
the decision of this case. The defendant, having taken possession of the land in
commencement of this action.
dispute on the 15th day of February, 1896, in good faith and with a proper title, and
The plaintiff contends that the possession of Jose M. Perez Rubio of the land in having publicly, peacefully and uninterruptedly possessed the same down to the
question was not in good faith, as required by law, and assigns as a reason for that date on which this action was commenced, viz, October 17, 1908, it is evident that
contention that, subsequent to the conveyance mentioned, the opponent of Rubio the defendant is the owner of said land by virtue of prescription.lawphi1.net
made an application to the court in the action in which said conveyance was
The judgment of the court below is, therefore, affirmed, with costs against the
obtained asking that the cause be reheard and that the order of said court which
appellant.itc-alf So ordered.
was the basis of said conveyance be suspended until the cause could be retried;
that, pursuant to such application, said cause was reopened and said order and its
operation were suspended; that nothing further was done in said action by either
party, and that, therefore, the effect of the order of conveyance having been
annulled by a suspension of the same and the reopening of the case for a rehearing,
Rubio had no proper title or color thereof when he took possession of said land,
and he, therefore, continued in possession knowing the defect in his title; and that
said Rubio, being himself a lawyer, can not be heard to plead ignorance to protect
his possession from the taint of bad faith.lawphi1.net