1. PURCHASE AND SALE; PREFERENCE IN CASE OF DOUBLE SALE; MATERIAL AND SYMBOLIC POSSESSION. — The possession in article 1473 (for determining who has better right when the same piece of land has been sold several times by the same vendor) include not only the material but also the symbolic possession, which is acquired by the execution of a public instrument. The doctrine laid down in Sanchez v. Ramos (40 Phil., 614), reiterated.

This is an appeal by certiorari from a decision of the Court of Appeals reversing the judgment of the Court of First Instance of Zambales. The case involves a dispute over a parcel of land sold to two different persons.

The facts as found by the Court of Appeals are these:jgc:chanrobles.com.ph

"Esta finca pertenecia originariamente al hoy difunto Dionisio Quimson, quien, en 7 de junio de 1932, otorgo la escritura Exhibit A de traspaso de la misma a favor de su hija Tomasa Quimson, pero continuo en su posesion y goce. La vendio a los esposos Magno Agustin y Paulina Manzano en 3 de meyo de 1935, con pacto de recomprar dentro del plazo de seis años; y dos años escasos despues, en 5 de abril de 1937, la volvio a vender a Francisco Rosete, tambien con pacto de retro por el termino de cinco años, despues de haber verificado su recompra de Agustin y Manzano, con dinero que le habia facilitado Rosete, otorgandose a este efecto la escritura de venta Exhibit 1. Desde entonces Rosete es el que esta en su posesion y disfrute, de una manera pacifica y quieta, aun despues de la muerte de Dionisio Quimson, ocurrida en 6 de junio de 1939, hasta el enero de 1943, en que Tomasa Quimson acudio al Juez de Paz de San Marcelino, Zambales, para que este interviniera en un arreglo con Rosete sobre dicha finca, cuyo fracaso motivo una carrera hacia Iba, la capital de Zambales, para ganar la prioridad del registro e inscripcion de las escrituras de venta Exhibits A y 1 que Dionisio Quimson otorgara a favor de Tomasa Quimson y Francisco Rosete, respectivamente, carrera que aquella gano por haber llegado a la meta una hora antes, a las 9:30 a. m. del 17 de febrero de 1943, en tanto que este la alcanzo a las 10:30 a. m. de ese mismo dia."cralaw virtua1aw library

Two questions are raised: (1) What were the effects of the registration of plaintiff’s document? and (2) Who was prior in possession? The Court of Appeals’ answer to the first question is, None, and to the second, the defendant or second purchaser.

We do not deem it necessary to pass upon the first issue in the light of the view we take of the last, to which we will address ourselves presently.

Articles 1462 and 1473 of the Civil Code provide:jgc:chanrobles.com.ph

"ART. 1462. The thing sold shall be deemed delivered, when it is placed in the control and possession of the vendee.

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

"ART. 1473. If the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property.

"Should it be immovable property, the ownership shall belong to the person acquiring it who first recorded it in the registry.

"Should there be no inscription, the ownership shall belong to the person who in good faith was first in the possession; and, in the absence of this, to the person who presents the oldest title, provided there is good faith."cralaw virtua1aw library

In the case of Buencamino v. Viceo (13 Phil., 97), Mr. Justice Willard, speaking for the court and citing article 1462 says: "Upon a sale of real estate the execution of a notarial document of sale is a sufficient delivery of the property sold."cralaw virtua1aw library

In the case of Florendo v. Foz (20 Phil., 388), the court, through Mr. Chief Justice Arellano, rules that "When the sale is made by means of a public instrument, the execution thereof is tantamount to conveyance of the subject matter, unless the contrary clearly follows or be deduced from such instrument itself, and in the absence of this condition such execution by the vendor is per se a formal or symbolical conveyance of the property sold, that is, the vendor in the instrument itself authorizes the purchaser to use the title of ownership as proof that the latter is thenceforth the owner of the property."cralaw virtua1aw library

More decisive of the case at bar, being almost on all fours with it, is the case of Sanchez v. Ramos (40 Phil., 614). There, it appeared that one Fernandez sold a piece of land to Marcelino Gomez and Narcisa Sanchez under pacto de retro in a public instrument. The purchasers neither recorded their deed in the registry of property nor ever took material possession of the land. Later, Fernandez sold the same property by means of a private document to Ramos who immediately entered upon the possession of it. It was held that, according to article 1473 of the Civil Code, Gomez and Sanchez were the first in possession and, consequently, that the sale in their favor was superior. Says the court, through Mr. Justice Avanceña, later chief justice:jgc:chanrobles.com.ph

"To what kind of possession does this article (1473) refer? Possession is acquired by the material occupancy of the thing or right possessed, or by the fact that the latter is subjected to the action of our will, or by the appropriate acts and legal formalities established for acquiring possession (art. 438, Civil Code). By a simple reasoning, it appears that, because the law does not mention to which of these kinds of possession the article refers, it must be understood that it refers to all of these kinds. The proposition that this article, according to its letter, refers to the material possession and excludes the symbolic does not seem to be founded upon a solid ground. It is said that the law, in the gradation of the causes of preference between several sales, fixes, first, possession and then the date of the title and, as a public instrument is a title, it is claimed that the inference is that the law has deliberately intended to place the symbolic possession, which the execution of the public document implies, after the material possession. This argument, however, would only be forceful if the title, mentioned by this article, includes public instruments, and this would only be true if public instruments are not included in the idea of possession spoken of in said article. In other words, the strength of the argument rests in that this possession is precisely the material and does not include the symbolic. Consequently, the argument is deficient for it is begging the same question, because if this possession includes the symbolic, which is acquired by the execution of a public instrument, it should be understood that the title, mentioned by the law as the next cause of preference, does not include public instruments.

"Furthermore, our interpretation of this article 1473 is more in consonance with the principles of justice. The execution of a public instrument is equivalent to the delivery of the realty sold (art.1462, Civil Code) and its possession by the vendee (art. 438). Under these conditions the sale is considered consummated and completely transfers to the vendee all of the vendor’s rights of ownership including his real right over the thing. The vendee by virtue of this sale has acquired everything and nothing, absolutely nothing, is left to the vendor. From this moment the vendor is a stranger to the thing sold like any other who has never been its owner. As the thing is considered delivered, the vendor has no longer the obligation of even delivering it. If he continues taking material possession of it, is simply on account of vendee’s tolerance and, in this sense, his possession is vendor’s possession. And if the latter should have to ask him for the delivery of this material possession, it would not be by virtue of the sale, because this has been already consummated and has produced all its effects, but by virtue of the vendee’s ownership, in the same way as said vendee could require of another person although same were not the vendor. This means that after the sale of a realty by means of a public instrument, the vendor, who resells it to another, does not transmit anything to the second vendee and if the latter, by virtue of this second sale, takes material possession of the thing, he does it as mere detainer, and it would be unjust to protect this detention against the rights to the thing lawfully acquired by the first vendee.

"We are of the opinion that the possession mentioned in article 1473 (for determining who has better right when the same piece of land has been sold several times by the vendor) includes not only the material but also the symbolic possession, which is acquired by the execution of a public instrument."cralaw virtua1aw library

The Supreme Court of Spain and Mr. Manresa are of the same opinion. On pp. 157, 158, Vol. X, of his treatise on the Spanish Civil Code, Manresa comments:jgc:chanrobles.com.ph

"II. Observacion comun a la venta de muebles y a la de inmuebles. — Hemos interpretado el precepto de articulo 1.473, en sus parrafos 1.