1. EVIDENCE. — The rule of evidence is well established, that the protest or objection against the admission of evidence should be presented at the time the evidence is offered, and that the proper time to make protest or objection to the admissibility of evidence is when the question is presented to the witness or at the time the answer thereto is given. It is also a well established rule of evidence, that the court may, in its discretion, strike out incompetent evidence although such evidence was given without objection and although the motion to strike out is not made until the evidence is already in.

2. ID.; RIGHT OF COURT ON ITS OWN MOTION TO STRIKE OUT. — The court may, upon its own motion, strike out evidence improperly admitted at any time during the day of the trial or at anytime before the close of the trial. It has also been held, that the court, upon its own motion, even during the closing argument of the counsel, may strike out evidence improperly admitted. Parties to the action are not precluded from asking the court to discard irrelevant or inadmissible evidence, even though it had been previously admitted without objection.

3. ID.; CONVERSATIONS WITH DECEASED PERSONS. — A party to an action against an executor or administrator of a deceased person, upon a claim against the estate of the latter, is absolutely prohibited by law from giving testimony concerning such claim or demand, as to anything that occurred before the death of the person against whose estate the action is presented. Death has closed the lips of one party and the law has closed the lips of the other.

4. USURY; WHEN MAY BE INTERPOSED AS A DEFENSE. — Without deciding the question whether or not there existed usury under the facts in the present case, or whether or not usury can exist in any case like the present, it is sufficient to say in the present case that no recovery for usury can be had in any case unless the action for that purpose "is brought within two years after such payment or delivery" is made. In the present case no claim was made for the recovery of any of the alleged usurious amounts for a period of more than three years. Query: May the defense of usury ever be based upon the amount of rent paid by the vendor to the vendee under a pacto de retro, during the continuance of said contract of sale?

This action was commenced in the Court of First Instance of the City of Manila on the 24th day of April, 1925. Its purpose was to recover the possession of a certain piece of property located at 622 Calle Regidor in the City of Manila, together with the rent thereon for the years 1922, 1923, 1924, and up to and including the month of April, 1925, in a sum amounting to P8,066.66.

The defendant interposed a general and special defense. In his special defense he alleged that the property in question was his sole and separate property; that he had given said property to the deceased Catalino Arevalo as a guaranty for the payment of a loan of P20,000 on the 12th day of October, 1920; that the document executed, evidencing said loan, while in form was a pacto de retro, was in fact a mere loan and that the promise to pay rent in said contract was a mere promise to pay interest on said loan at 12 per cent per annum; that at the time of the execution and delivery of said document the deceased Catalino Arevalo collected from the defendant the sum of P150 as a supposed commission; that the contract of January 27, 1922, referred to in paragraph 5 of the complaint was also fictitious and that he had signed the same by virtue of a verbal agreement to extend the time for the repayment of the P20,000 for two months and the payment by the defendant to the plaintiff of P600 additional each year, in addition to the rent already agreed upon, making a total rental of the property in question of P3,000 per year for the use and occupation thereof; that he had paid to Catalino Arevalo the sum of P3,311.09; that the said contracts of the 12th day of October, 1920, and the 27th day of January, 1922, were contrary to the provisions of Act No. 2655, known as the Usury Law. The defendant prayed for a judgment against the plaintiff for the sum of P2,000 as attorney’s fees in the trial court and an additional sum of P3,000 as attorney’s fees in case of an appeal, as well as for a judgment against the plaintiff for the sum of P3,311.09. He also prayed that he be absolved from all liability under the complaint and that said contracts be declared null and void. He further prayed that the registrar of titles to land in the City of Manila be ordered to cancel the registration of the title of said property in the name of Catalino Arevalo.

Upon the issue thus presented the cause was brought on for trial. After hearing the evidence adduced during the trial of the cause the Honorable C. A. Imperial, judge, in a very well prepared opinion, in which reference was made to all of the important facts, rendered a judgment, the dispositive part of which is as follows:jgc:chanrobles.com.ph

"Fundado en las consideraciones que preceden, el Juzgado dicta sentencia a favor del demandante, en su capacidad de administrador judicial del intestado del finado D. Catalino Arevalo, declarandole dueiio de la finca urbana cuestionada y con derecho a poseerla, y se ordena al demandado que le restituya dicha finca urbana y que le pague la cantidad de ocho mil sesenta y seis pesos con sesenta y seis centimos (P8,066.66) que representan los alquileres correspondientes desde el 1.