1. FORCIBLE ENTRY AND DETAINER; PRIOR POSSESSION OF PLAINTIFF. — The plaintiff in an action of forcible entry and detainer instituted against an intruder who enters upon the land by force intimidation, threat, strategy, or stealth must prove a prior possession in himself. This means that as between the two contending parties the law concedes the right of action to the party whose actual and peaceful possession antedates that of the other; and in order to determine which of the two had prior possession, it is permissible to look to the situation which existed before the first act of spoliation occurred.

2. POSSESSION; CONSTRUCTIVE POSSESSION; DELIVERY OF PUBLIC DOCUMENT. — A person who does not have actual possession of real property cannot transfer constructive possession by the execution and delivery of a public document by which the title to the land is transferred.

Plaintiff in this action, averring that he is the owner of the tract of land in question, brought an action of desahucio [eviction] in the court of the justice of the peace of the municipality of Lezo against the defendant, for the purpose of recovering possession thereof. From the decision of the justice of the peace an appeal was taken to the Court of First Instance of Capiz, and the case there tried de novo.

It is averred in the complaint that on or about the 12th day of June, 1915, the defendant by force and intimidation deprived plaintiff of the possession of the land in suit, and has since that time withheld it from him to his damage in the sum of P25. The defendant answered, denying the averments of the complaint regarding the alleged eviction, and asserted, by way of defense, that the land in question is her property and has been in her possession without interruption for more than twenty years. The trial court gave judgment in favor of the plaintiff in accordance with the prayer of his complaint.

From the evidence taken at the trial it appears that the defendant had been in possession of the land in question for a long period prior to the occurrence of the incidents out of which this litigation arose.

On March 8, 1915, while the defendant was in possession of the land in question, one Matea Crispino executed a deed to the plaintiff herein, whereby she undertook to sell and transfer to him the land in question. It was admitted by Matea Crispino in her testimony at the trial that she has not been in possession of the land which is the subject matter of her deed to plaintiff, since the cessation of the Spanish sovereignty in these Islands. (Stenographic notes, p. 10.) She stated, however, that the land in question had been mortgaged by her to one Eugenia Perez, who testified on behalf of plaintiff that she, Perez, had been in possession of the land from 1889 until 1914.

After Matea Crispino executed her deed to the plaintiff, the latter went upon the land with his laborers and commenced to plow it. This work had hardly commenced when, according to plaintiff’s testimony, the defendant approached, accompanied by her daughter, and insisting that the land was hers and in her possession, ordered the plaintiff and his men away.

Plaintiff avers that in the course of that altercation the defendant, who is a woman 80 years of age, took a bolo and cut the rope traces by which his carabao was attached to the plow. The result of the dispute was that the plaintiff and his men withdrew and that an action was shortly after commenced in the court of the justice of the peace against the defendant by plaintiff for the possession of the land.

The evidence shows conclusively that until he went upon the land for the purpose of plowing it, acting on the strength of his deed from Matea Crispino, plaintiff had never been in possession of this property. Whether or not Eugenia Perez had been in possession of the property at some time is, of course, unimportant. The action admits that the defendant is now in possession of the property and asserting rights of ownership over it; and the plaintiff can only succeed upon proof of prior possession in himself or someone to whose rights he has succeeded.

The case involves a point which we consider worthy of elucidation. This relates to the possession which the plaintiff must show in himself in order to sustain an action of forcible entry and detainer, under Section 80 of the Code of Civil Procedure, against an intruder who enters upon the land by force, intimidation, threat, strategy, or stealth. As observed by this court in Mediran v. Villanueva (37 Phil. Rep., 752), the plaintiff in an action of this character must prove a prior possession in himself, which means that as between the two contending parties the right of action is conceded to be in the party whose actual and peaceful possession antedates that of the other.

In this case the defendant Maria Cesar is shown to have had the prior peaceful possession of the disputed parcel of ground for an indefinite period of time in the past. Therefore, when the plaintiff, after acquiring a deed to the land from a third person, entered upon the premises with his laborers and began plowing the land, it was he who was guilty of the wrongful seizure of the property; and the defendant undoubtedly then had a perfect right to maintain an action of unlawful detainer against the plaintiff to regain possession. Instead of instituting such an action, as the defendant was well entitled to do, she warned the plaintiff off, or as he would have us believe, ejected him by force, intimidation, and violence. Availing himself of the situation thus created, the plaintiff now seeks to turn the tables, so to speak, upon the original possessor, and founding his right upon the transitory possession which he had wrongfully acquired, he would now employ against the defendant the same remedy which might properly have been used against himself if he had not vacated the premises.

This confusion of the remedy cannot be permitted. Where a dispute over possession arises between two persons, the person first having actual possession, as between them, is the one who is entitled to maintain the action granted in Section 80 of the Code of Civil Procedure. If this were not so, a mere usurper without any right whatever, might enter upon the property of another and, by allowing himself to be ordered off, could acquire the right to maintain the action of forcible entry and detainer, however momentary his intrusion might have been.

The mere suggestion of such a possibility carries its own refutation on its face. The law discourages continued wrangling over the possession of property, as being fraught with danger to the peace of society; and the purpose of the action of forcible entry and detainer is to make the right of possession secure. This purpose would be totally frustrated, if a petty warfare could be conducted by two rival claimants who might alternate with each other in possession, one putting the other out to-day, only to be in turn himself forcibly ejected tomorrow. The only way to prevent this is to hold, in conformity with the evident intent of the statute, that the remedy of forcible entry and detainer was intended to be used against the usurper and not against the person wronged. The rule thus to be applied may be simply summed up by saying that the plaintiff in an action of forcible entry and detainer cannot succeed where it appears that, as between himself and the defendant, the latter had a possession antedating his own; and to ascertain this it is proper to look to the situation as it existed before the first act of spoliation occurred.

It is stated in the decision that "the plaintiff had acquired possession of the parcel of land in dispute on or about the 8th of March, 1915, by purchase from Matea Crispino, who sold it to him by the deed Exhibit A."cralaw virtua1aw library

As Matea Crispino admits, however, that she did not have possession of the land when she executed and delivered her deed to plaintiff, the mere execution and delivery of the deed did not constitute a delivery of possession. (Addison v. Felix and Tioco, 38 Phil. Rep., 404.)

The decision of the trial court is reversed, and the action dismissed, plaintiff to pay the costs of both instances. So ordered.

Torres, Johnson, Street, Malcolm and Avanceña, JJ., concur.