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

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

3. ID.; ID.; ID.; RIGHT OF SECOND PURCHASER. — From what has been said, it logically follows that the second purchaser who acquired the property from the lessee or tenant and who, through the acts of the latter, entered into the material possession of the property by virtue of the second sale, could not have acquired any right of ownership therein, inasmuch as he received the property, not from its lawful owner, but from a mere tenant or lessee who had no right whatever to dispose of it; therefore, the second purchaser’s possession is merely precarious and was taken after the first purchaser had exercised his right of possession, and the possession of the second purchaser cannot prevail over that previously obtained by the first purchaser.

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

On June 30, 1916, counsel for the plaintiff filed a complaint in the Court of First Instance of Rizal, in which he alleged that on September 4, 1912, by virtue of a contract of sale executed on September 4, 1912, between the plaintiff Rosalio Bautista and the spouses Francisco Sioson and Lorenza de la Cruz, for the sale of a camarin or warehouse of strong materials with an iron roof and a house of mixed materials with a nipa roof — both buildings constructed on lots situated in the town of Malabon, Rizal, and belonging to the chaplaincy known by the name of Concepcion — said buildings were delivered to him on the date of the contract, which was drawn up before a notary, under the condition that the vendors might repurchase them within the term of two years, counted from the date of the contract; that immediately after the sale the plaintiff leased the purchased buildings to said vendor spouses, who had not paid the price of the lease, nor repurchased said buildings, notwithstanding that the term of the contract had elapsed, with the result that the other defendant Raymundo de la Cruz was then (at the time of the filing of the complaint) in material possession of said camarin under title of owner, and Francisco Santos Paulino was in possession of the house, also under a like title. Therefore he prayed the court to hold that the plaintiff’s ownership in said buildings was consolidated, to order the defendants to deliver them to the plaintiff, and to order Francisco Sioson to pay to the plaintiff the price of the lease and to pay the costs.

The defendants Francisco Sioson and Francisco Santos Paulino did not put in an appearance to answer the complaint, notwithstanding that they were duly summoned. They were therefore declared in default. Counsel for the defendant Raymundo de la Cruz admitted paragraphs 1 and 6 of the complaint, and denied generally and specifically the other paragraphs thereof. In special defense he alleged that the camarin described in subparagraph (a), paragraph 2 of the complaint, was of the exclusive ownership of the defendant Raymundo de la Cruz. He therefore asked that his client be absolved from the complaint, with the costs against the plaintiff.

Upon the hearing of the case and the introduction of evidence by the parties, the court decided the suit in the manner aforesaid.

It now behooves us to determine who is the owner of the camarin of strong materials with an iron roof, to which reference is made in subparagraph (a) of paragraph 2 of the complaint: Whether it belongs to Rosalio Bautista, in whose favor its ownership became consolidated by the lapse of the term of two years without its having been repurchased by the vendors; or to Raymundo de la Cruz, to whom Francisco Sioson likewise sold the said camarin on August 5, 1914, one year and eleven months after the sale of this building to the plaintiff Bautista, effected on September 4, 1912.

In order that the issue raised in this suit may be properly decided we shall herein make a statement of the contracts executed by and between the litigants.

On September 4, 1912, the defendant Francisco Sioson and his wife Lorenza de la Cruz, through a notarial instrument, sold to the plaintiff Rosalio Bautista the camarin in question, besides some other property, under the right of repurchase. It was stipulated that if within two years from the date of the contract the vendors or their successors in interest should not repurchase said properties for the sum of P400, the price of the sale, such sale should become absolute and thenceforth the ownership in the properties sold should be consolidated, the execution of another instrument being unnecessary. (Exhibit A, p. 10.)

On the same date, September 4, 1912, Rosalio Bautista, through a notarial instrument, leased the properties sold to him to the vendors Francisco Sioson and Lorenza de la Cruz, for the price of P100 per annum, for the period of two years counted from the date of the instrument. (Exhibit D, p. 15.)

On June 12, 1913, Lorenza de la Cruz died (sten. notes, p. 29) and on August 5, 1914, Francisco Sioson executed before a notary a document by which he sold under right of repurchase to the defendant Raymundo de la Cruz, the camarin in question. It was stipulated in this instrument that if within six months, counted from the 1st of August. 1914, the vendor Francisco Sioson should return to the purchaser Raymundo de la Cruz the sum of P422, the price of the purchase, then the purchaser Raymundo de la Cruz would be obliged to execute in favor of said vendor Francisco Sioson an instrument of resale, but that if within the period mentioned he should not make the redemption stipulated, said sale should become absolute, the execution of another instrument being unnecessary. (Exhibit 1, p. 17.)

From the instrument referred to in the preceding paragraphs it is concluded that the original owner of the buildings in dispute, Francisco Sioson, and his wife, Lorenza de la Cruz, sold, on September 4, 1912, the house and the camarin to the plaintiff Rosalio Bautista for P400, under agreement of their resale within the term of two years counted from said date; and that, on the same date, by means of a constitutum possessorium agreement, and in another new notarial instrument, the purchaser Bautista leased the properties sold to the vendors Francisco Sioson and Lorenza de la Cruz at an annual rent of P100, for a period of two years counted from the date above mentioned.

After the lessee, Francisco Sioson, had been in possession of the properties leased for one year and eleven months, he sold the camarin, one of them, by virtue of a notarial instrument to Raymundo de la Cruz, under the agreement that if he did not redeem the camarin so sold within six months from the 1st of August, 1914, and return the sum of P422, such sale under right of repurchase should become absolute, the execution of another instrument being unnecessary.

As a result of the two said alienations, both set forth in notarial instruments though not recorded in the registry of property the issue raised and to be decided is, which of the two purchasers, the plaintiff Bautista and the defendant Cruz, is the lawful owner of the camarin successively sold to the former and to the latter by the other defendant Francisco Sioson, its original owner, in accordance with the provisions contained in Article 1473 of the Civil Code, the last paragraph of which, among other things, prescribed:jgc:chanrobles.com.ph

"Should there be no entry, the property shall belong to the person who first took possession of it in good faith . . . ."cralaw virtua1aw library

In view of the fact that the deed of sale executed by Francisco Sioson, the owner of the camarin, and his wife, Lorenza de la Cruz, on September 4, 1912, in favor of Rosalio Bautista, was not entered in the registry of property, and of the further fact that, upon the execution of the second sale of the same camarin by the said Sioson which sale was made after the death of his wife Lorenza by virtue of an instrument dated August 5, 1914, in favor of Raymundo de la Cruz, under agreement of repurchase for the price of P422 the term of two years fixed for the redemption of the camarin so sold had not yet expired, it may be presumed, in the absence of proof to the contrary, that the second purchaser Raymundo de la Cruz, on acquiring the camarin of its original owner Francisco Sioson, who, according to the written contract, became a tenant or lessee of the camarin, was not aware of said first sale to Bautista, and believed that Sioson, who was in possession of the camarin, was still the owner thereof. Therefore, Cruz acted in good faith in acquiring it, inasmuch as, through failure to enter the property in the registry, there was no reason why the previous alienation of the camarin should have been known. But be all this as it may, nevertheless, the actual and material possession of the camarin by Cruz does not constitute a sufficient legal reason for holding that he has a better right to the building than the first purchaser Rosalio Bautista, although the latter was not in actual, physical, and material possession of the camarin that he had purchased. This conclusion is derived from a strict application of the provisions of said Article 1473 of the Civil Code.

Both alienations, effected successively by Francisco Sioson in favor of Bautista and Cruz, are recorded in notarial instruments, though they were not entered in the registry of property. To determine who is the lawful owner of the camarin sold, if the provisions of said article of the Code are to be observed, we have first to determine the contention in regard to which of the two purchasers is in possession thereof, and if, on the execution of the contract of lease by the first purchaser in favor of the vendor himself, the constitutum possessorium agreement is to be considered to have been stipulated, the conclusion must necessarily be reached as to which of the two purchasers first took possession of the camarin sold, and also whether the material possession of the tenant is of a precarious nature, enjoyed in the name and representation of the owner Bautista.

Article 1462 of the Civil Code reads:jgc:chanrobles.com.ph

"A thing sold shall be considered as delivered, when it is placed in the hands and possession of the vendee.

"When the sale should be made by means of a public instrument, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if in said instrument the contrary does not appear or may be clearly inferred."cralaw virtua1aw library

From the context of this article it is deduced that the delivery or tradition of the thing sold may be real or actual, and feigned. The execution of a public instrument constitutes one of the kinds of symbolic tradition, but, in all the different manners by which the thing sold may be delivered, it is necessary that the record bear proof and that it may be held that such delivery or tradition was determined by the will of the parties to deliver and receive, respectively, the thing that is the subject of the contract.

In the contract of lease (Exhibit D, record, p. 15) the lessor, Rosalio Bautista, states that in his capacity as owner he leased to the spouses Francisco Sioson and Lorenza de la Cruz, among other properties, a camarin of strong material with an iron roof, at an annual rent of P100, the lessees binding themselves to report to the lessor any act of disturbance committed by any other person, and all defects that might be occasioned to the building. The execution of this instrument of lease shows that the camarin would be continued to be occupied by its previous owner and vendor after it had been delivered, symbolically, by means of the instrument executed for the purpose in favor of the purchaser, in order that he might hold it in the capacity of lessee, it being supposed, by a legal fiction, that the purchaser entered into possession of the camarin sold, a form of possession utilized by the purchaser by virtue of the clause known in law as constitutum possessorium, stipulated between the contracting parties.

So that, by the execution of the deed of sale of September 4, 1912, Rosalio Bautista entered into the material possession under title of owner, of the camarin sold to him by Francisco Sioson, and, by virtue of another instrument of lease, of the same date, the purchaser and owner of the camarin conveyed and delivered this building to the lessee in view of said contract. Under these perfectly legal suppositions it is unquestionable that the purchaser Rosalio Bautista was the first person who entered into the possession of the camarin as soon as he acquired it by virtue of said sale.

The material possession which the other defendant, Raymundo de la Cruz, now enjoys, not only was subsequent by one year and eleven months, but also, on the other hand, is an unlawful possession which was transmitted to him by Francisco Sioson, who held the camarin precariously and in the capacity of tenant, and, consequently, without any right whatever to convey to Raymundo de la Cruz the possession under title of owner referred to in Article 1473, aforementioned of the Civil Code.

This article says: "If the same thing should have been sold to different vendees . . .;" but it must be understood that said sale was made by its original owner. In the instant case Francisco Sioson, on effecting the second sale in favor of Raymundo de la Cruz, was in possession of the camarin and occupied it, not in the capacity of owner, but in that of lessee or tenant, and therefore absolutely had no right to dispose of the building in the capacity of owner thereof; consequently Sioson could not convey to the second purchaser the lawful possession of the disputed camarin.

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

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

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



CARSON, J., dissenting:chanrob1es virtual 1aw library

I dissent. Manresa, in his commentaries, on Article 1473 of the Civil Code, clearly indicates that the possession referred to in that article is the real, the physical possession of the property; and certain it is that to hold that the possession contemplated in this article may be secured without the performance of some act which will give notice to innocent subsequent purchasers, or of which subsequent purchasers may inform themselves by due diligence tends to defeat the just and equitable provisions of the law.